HANOVER COMPRESSOR COMPANY 71/2% Senior Notes due 2013 Underwriting Agreement March 27, 2006
Exhibit 1.1
$150,000,000
HANOVER COMPRESSOR COMPANY
71/2% Senior Notes due 2013
March 27, 2006
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
as Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Hanover Compressor Company, a Delaware corporation (the “Company”), proposes to issue and sell
to the several underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom ▇.▇. ▇▇▇▇▇▇
Securities Inc. is acting as representative (the “Representative”), $150,000,000 principal amount
of its 71/2% Senior Notes due 2013 (the “Securities”). The Securities will be issued pursuant to a
supplemental indenture, to be dated as of March 31, 2006 (the “Supplemental Indenture”), among the
Company, Hanover Compression Limited Partnership, as guarantor (the “Guarantor”), and Wachovia
Bank, National Association, as trustee (the “Trustee”), to the base indenture, dated as of December
15, 2003, between the Company and the Trustee (the “Base Indenture,” as supplemented and amended by
the Supplemental Indenture, the “Indenture”), and will be fully and unconditionally guaranteed by
the Guarantor (the “Guarantee”).
The Company hereby confirms its agreement with each of the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company and the Guarantor have prepared and filed with
the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form S-3 (File No. 333-132672), relating to,
among other things, certain debt securities (the “Shelf Securities”) to be issued from time to time
by the Company. The Company and the Guarantor also have filed with, or propose to file with, the
Commission pursuant to Rule 424 under the Securities Act, a prospectus supplement specifically
relating to the Securities (the “Prospectus Supplement”) together with the prospectus covering the
Shelf Securities. The registration statement as amended to the date of this Agreement, including
the information, if any, deemed pursuant to Rule 430A, Rule 30B or Rule 430C under the Securities
Act to be part of and included in the registration statement, is hereinafter referred to as the
“Registration Statement” and the related prospectus included in the Registration Statement at the
time of its effectiveness is hereinafter referred to as the “Basic Prospectus.” The Basic
Prospectus as supplemented by the Prospectus Supplement in the form first used (or made available
upon request of purchasers pursuant to Rule 173 under the Securities Act) to confirm sales of the
Securities is hereinafter referred to as the “Prospectus.” Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any preliminary form of Prospectus (a “Preliminary
Prospectus”) previously filed with the Commission pursuant to Rule 424 or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act as of the effective date of the Registration Statement or the
date of such Preliminary Prospectus or the Prospectus, as the case may be, which were filed under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”); and any reference to “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement, or the date of the Basic Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be, which are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the time when sales or contracts for sales of the Securities were first made
(the “Time of Sale”), the Company had prepared the following information (collectively, the “Time
of Sale Information”): a Preliminary Prospectus dated March 24, 2006, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue
and sell the Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth opposite such Underwriter’s name in
Schedule 1 hereto at a price equal to 97.750% of the principal amount thereof plus accrued
interest, if any, from March 31, 2006 to the Closing Date (as defined below). The Company will not
be obligated to deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
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Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ at 10:00 A.M., New York City time, on March 31, 2006, or at
such other time or place on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Company may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the “Closing Date.”
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representative against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.
(e) Each of the Company and the Guarantor acknowledges and agrees that the Underwriters are
acting solely in the capacity of an arm’s length contractual counterparty to the Company and the
Guarantor with respect to the offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, the Guarantor or any other person. Additionally, neither the Representative
nor any other Underwriter is advising the Company, the Guarantor or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the
Guarantor shall consult with their own advisors concerning such matters and shall be responsible
for making their own independent investigation and appraisal of the transactions contemplated
hereby, and, except as otherwise expressly contemplated in this Agreement, the Underwriters shall
have no responsibility or liability to the Company or the Guarantor with respect thereto. Any
review by the Underwriters of the Company, the Guarantor, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for the benefit of the
Underwriters and shall not be on behalf of the Company or the Guarantor.
3. Representations and Warranties of the Company and the Guarantor. Each of the
Company and the Guarantor, jointly and severally, represents and warrants to each Underwriter that:
(a) No order preventing or suspending the use of any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all
material respects with the Securities Act and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that neither the Company nor the Guarantor makes any representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Preliminary Prospectus.
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(b) The Time of Sale Information, as of the Time of Sale did not, and at the Closing Date will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that neither the Company nor the Guarantor makes any representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in such Time of Sale Information. No statement of
material fact included in the Prospectus has been omitted from the Time of Sale Information, and no
statement of material fact included in the Time of Sale Information that is required to be included
in the Prospectus has been omitted therefrom.
(c) Other than the Preliminary Prospectus and the Prospectus, neither the Company nor the
Guarantor (including their respective agents and representatives, other than the Underwriters in
their capacity as such) has made, used, prepared, authorized, approved or referred to and neither
of them will prepare, make, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of
an offer to buy the Securities (each such communication by the Company, the Guarantor or its agents
and representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex A hereto and other written communications approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act, has been or will be filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the other Time of Sale Information, did not, and at
the Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that neither the Company nor the Guarantor
makes any representation and warranty with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in any Issuer Free Writing Prospectus.
(d) The Registration Statement is an “automatic shelf registration statement” as defined under
Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the date hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Company or the Guarantor. No stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the Company or the Guarantor or related to the
offering has been instituted or, to the knowledge of the Company, threatened by the Commission; and
as of the applicable effective date as to the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material respects with the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein
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not misleading; and as of the date of the Prospectus and any amendment or supplement thereto
and as of the Closing Date, the Prospectus as then amended or supplemented will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and (ii)
statements or omissions in the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by an Underwriter through the
Representative expressly for use therein.
(e) The documents incorporated by reference in the Registration Statement, the Prospectus or
the Time of Sale Information (except that no representation is made with respect to statements that
have been modified or superceded and consequently excluded from the Registration Statement and the
Prospectus pursuant to Rule 412 under the Securities Act), when they became effective or were filed
with the Commission, as the case may be, conformed in all material respects to the requirements of
the Exchange Act, and none of such documents (except that no representation is made with respect to
statements that have been modified or superceded and consequently excluded from the Registration
Statement and the Prospectus pursuant to Rule 412 under the Securities Act) contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale Information or any further amendment or
supplement thereto, when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided, however, that
neither the Company nor the Guarantor makes any representation or warranty with respect to any
statements or omissions included in any prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by an underwriter expressly for use in such
prospectus.
(f) The financial statements and the related notes thereto included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus present
fairly, in all material respects, the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of its operations and the changes in its
cash flows for the periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis; and the other
financial information included or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus has been derived from the accounting records of the Company
and its subsidiaries and presents fairly, in all material respects, the information shown thereby.
(g) Neither the Company nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus any loss or interference with its
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business from fire, explosion, flood or other calamity that is material to the Company and its
subsidiaries, taken as a whole, 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 Time of Sale Information and the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement, the Time of Sale Information
and the Prospectus, there has not been any material change in the capital stock, preferred
securities or long-term debt of the Company or any of its subsidiaries, taken as a whole, or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the business, management, financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Registration Statement, the Time of Sale
Information and the Prospectus; the Guarantor has been duly formed and is validly existing in good
standing under the laws of the State of Delaware, with organizational power and authority to own
its properties and conduct its business as described in the Registration Statement, the Time of
Sale Information and the Prospectus; the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of each other jurisdiction
in which its ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a material adverse effect on the business, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries, taken as a whole; and the Guarantor has been duly qualified as a foreign limited
partnership for the transaction of business and is in good standing under the laws of each other
jurisdiction in which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a material adverse effect on the business, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries, taken as a whole.
(i) The Company has an authorized capitalization as set forth in the Registration Statement,
the Time of Sale Information and the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
and all of the issued equity interests of the Guarantor are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims other than those described
in the Registration Statement, the Time of Sale Information and the Prospectus, or that exist
pursuant to that certain (i) Credit Agreement, dated as of November 21, 2005, among the Company,
HCLP, The Royal Bank of Scotland plc as Syndication Agent, JPMorgan Chase Bank, N.A., as
Administrative Agent and the several lenders parties thereto and (ii) Guarantee and Collateral
Agreement, dated as of November 21, 2005, among the Company, HCLP and certain of their subsidiaries
in favor of JPMorgan Chase Bank, N.A., as Collateral Agent.
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(j) Each of the Company and the Guarantor have full corporate power and authority to execute
and deliver (to the extent that it is a party thereto) this Agreement, the Securities, the
Guarantee, the Base Indenture and the Supplemental Indenture (collectively, the “Transaction
Documents”) and to perform its respective obligations hereunder and thereunder; and all corporate
action required to be taken for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions contemplated thereby has been
duly and validly taken.
(k) The Base Indenture has been duly authorized, executed and delivered by the Company, and
constitutes a valid and legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(l) The Supplemental Indenture has been duly authorized by each of the Company and the
Guarantor and, when the Supplemental Indenture is executed and delivered by the Company, the
Guarantor and the Trustee, the Indenture will constitute a valid and legally binding obligation of
the Company and the Guarantor enforceable against the Company and the Guarantor in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors’ rights and to general equity principles;
and the Indenture has been duly qualified under the Trust Indenture Act.
(m) The Securities have been duly authorized by the Company and, when issued, authenticated
and delivered pursuant to the Indenture and paid for as provided herein, will have been duly
executed, authenticated, issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture, enforceable against
the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors’ rights
and to general equity principles.
(n) The Guarantee has been duly authorized by the Guarantor and, when the Indenture has been
executed and delivered by the parties thereto and the Securities have been issued, authenticated
and delivered pursuant to the Indenture and paid for as provided herein, will constitute a valid
and legally binding obligation of the Guarantor entitled to the benefits of the Indenture,
enforceable against the Guarantor in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.
(o) This Agreement has been duly authorized, executed and delivered by each of the Company and
the Guarantor.
(p) Each Transaction Document conforms in all material respects to the description thereof
contained in the Registration Statement, the Time of Sale Information and the Prospectus.
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(q) Neither the Company nor any of its subsidiaries is (i) in violation of its certificate of
incorporation or by-laws or other organizational documents, as the case may be, (ii) in default in
the performance or observance of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of the properties of the Company or any of its subsidiaries may be bound or
(iii) in violation of any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except, in the case of clauses (ii) and (iii), for any such default or violation that
would not have a material adverse effect on the business, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its subsidiaries, taken
as a whole.
(r) The execution, delivery and performance by the Company and the Guarantor of each of the
Transaction Documents to which it is a party, the issue and sale of the Securities by the Company
and the issuance of the Guarantee by the Guarantor and the compliance by each of the Company and
the Guarantor with all of the provisions of the Securities (in the case of the Company), the
Guarantee (in the case of the Guarantor), the Indenture and this Agreement and the consummation of
the transactions contemplated herein and therein will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii)
result in a violation of the provisions of the certificate of incorporation or by-laws or other
organizational documents, as the case may be, of the Company or any of its subsidiaries or (iii)
result in a violation of any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except, in the case of clauses (i) and (iii), for any such conflict, breach, violation
or default which would not have a material adverse effect on the business, management, financial
position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the issue
and sale of the Securities and the Guarantee or the consummation by the Company and the Guarantor
of the transactions contemplated by the Transaction Documents, except for (A) such consents,
approvals, authorizations, orders, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of the Securities by
the Underwriters and (B) such consents, approvals, authorizations, orders, registrations or
qualifications the failure of which to obtain or make would not have a material adverse effect on
the business, management, financial position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries, taken as a whole and would not have a material
adverse effect on the ability of the Company to consummate the transactions contemplated herein.
(s) Other than as set forth in the Registration Statement, the Time of Sale Information and
the Prospectus, there are no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
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business, management, financial position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries, taken as a whole; and, to the best knowledge of the
Company and the Guarantor, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(t) None of the Company, the Guarantor or any of the Company’s other subsidiaries is, and
after giving effect to the offering and sale of the Securities and the Guarantee, as the case may
be, none of them will be, an “investment company” or an entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(u) Neither the Company nor the Guarantor or any of their affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the meaning of Florida
Statutes Section 517.075 and the Company and the Guarantor agree to comply with such Section if
prior to the completion of the distribution of the Securities it commences doing such business.
(v) 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.
(w) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company
and its subsidiaries, is an independent registered public accounting firm with respect to the
Company and its subsidiaries within the applicable rules and regulations adopted by the Commission
and the Public Accounting Oversight Board (United States) and as required by the Securities Act.
(x) Other than as set forth in the Registration Statement, the Time of Sale Information and
the Prospectus, the Company and each of its subsidiaries (i) are in compliance with any and all
applicable federal, state, local and foreign laws, rules, regulations, decisions and orders
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), (ii) have
received and are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses, and (iii) have not received
notice of any actual or potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants; except in any such
case for any such failure to comply with any Environmental Laws or any required permits, licenses
or other approvals, or failure to receive required permits, licenses or approvals, or liability, as
would not, individually or in the aggregate, have a material adverse effect on the business,
management, financial position, stockholders’ equity, results of operations or prospects of the
Company and its subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from all governmental or
regulatory authorities that are necessary to own or lease their properties and conduct their
businesses as described in the Registration Statement, the Time of Sale Information and the
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Prospectus, except for such licenses, franchises, permits, authorizations, approvals and
orders and other concessions the failure of which to obtain would not, individually or in the
aggregate, have a material adverse effect on the business, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its subsidiaries, taken
as a whole.
(z) The Company and each of its subsidiaries is conducting business in compliance with all
applicable statutes, rules and regulations administered or issued by any governmental or regulatory
authority in the jurisdictions in which it is conducting business, except where the failure to be
so in compliance would not have a material adverse effect on the business, management, financial
position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries, taken as a whole.
(aa) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them which is material to
the business of the Company and its subsidiaries, as the case may be, in each case free and clear
of all liens, encumbrances and defects except such as are described in the Registration Statement,
the Time of Sale Information and the Prospectus or such as do not impair the value of such property
and do not interfere with the use made and proposed to be made of such property by the Company and
its subsidiaries or such as would not have a material adverse effect on the business, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries, taken as a whole; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries or such as would not have a material adverse effect
on the business, management, financial position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries, taken as a whole.
(bb) The Company and its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, tradenames or other rights to inventions, know-how, patents, copyrights,
confidential information and intellectual property (collectively, “intellectual property rights”)
necessary to conduct the business now operated by them, or presently employed by them, except for
such intellectual property rights the failure of which to own, possess or acquire would not have a
material adverse effect on the business, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries, taken as a whole; and the
Company and its subsidiaries have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the business, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries, taken as a whole.
(cc) No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be
described in the Registration Statement and the Prospectus and that is not so described in such
documents and the Time of Sale Information.
10
(dd) The Company and its subsidiaries have filed all federal, state, local and foreign tax
returns required to be filed through the date hereof and have paid all taxes shown as due thereon;
and except as otherwise disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus, the Company has no knowledge of any tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of
their respective properties or assets that would, individually or in the aggregate, have a material
adverse effect on the business, management, financial position, stockholders’ equity, results of
operations or prospects of the Company and its subsidiaries, taken as a whole.
(ee) Except as would not reasonably be expected to have a material adverse effect on the
business, management, financial position, stockholders’ equity, results of operations or prospects
of the Company and its subsidiaries, taken as a whole, (i) each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates has been maintained
in compliance with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”); (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption; and (iii) for each such plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the
fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(ff) The Company and its subsidiaries maintain systems of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(gg) The Company and its subsidiaries have insurance of the types and in the amounts generally
deemed prudent and customary in the businesses in which they are engaged; and neither the Company
nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that
material capital improvements or other expenditures are required or necessary to be made in order
to continue such insurance or (ii) any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain substantially similar
coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(hh) On and immediately after the Closing Date, the Company (after giving effect to the
issuance of the Securities and the other transactions related thereto as described in the
11
Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As
used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such
date (i) the Company believes that the present fair market value (or present fair saleable value)
of the assets of the Company is not less than the total amount required to pay the liabilities of
the Company on its total existing debts and liabilities (including contingent liabilities) as they
become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they mature and become due in the
normal course of business; (iii) assuming consummation of the issuance of the Securities as
contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the
Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such
debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and
does not propose to engage in any business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the prevailing practice in the
industry in which the Company is engaged; and (v) other than as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus, the Company is not a defendant in any
civil action that would result in a judgment that the Company is or would become unable to satisfy.
(ii) The Company has not taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Securities.
(jj) No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale
Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(kk) The Company, its directors and officers and its subsidiaries are in compliance in all
material respects with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules
and regulations of the Commission adopted pursuant thereto as such rules and regulations currently
apply to the Company, its directors and officers and its subsidiaries.
(ll) Nothing has come to the attention of the Company that has caused the Company to believe
that the statistical and market-related data included in the Registration Statement, the Time of
Sale Information and the Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(mm) The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Securities Act, in each case at the times specified in the Securities Act in
connection with the offering of the Securities. The Company has paid the registration fee for this
offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fees within the time
period required by such rule (without giving effect to the proviso therein) and in any event prior
to the Closing Date.
4. Further Agreements of the Company and the Guarantor. Each of the Company and the
Guarantor, jointly and severally, covenants and agrees with each Underwriter that:
12
(a) The Company and the Guarantor will file the Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, and will
file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities
Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus
(to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M.,
New York City time, on the second business day after the date of this Agreement in such quantities
as the Representative may reasonably request. The Company will pay the registration fees for this
offering within the time period required by Rule 456(b)(1)(i) under the Securities Act prior to the
Closing Date.
(b) The Company will deliver, without charge, (i) to the Representative, two conformed copies
of the Registration Statement as originally filed and each amendment thereto, in each case
including all exhibits and documents incorporated by reference therein; and (ii) to each
Underwriter (A) as many copies of the Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and documents incorporated by reference therein and
(B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus
(including all amendments and supplements thereto) and each Issuer Free Writing Prospectus as they
may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of
time after the first date of the public offering of the Securities as in the opinion of counsel for
the Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Prior to the later of the Closing Date and the termination of the Prospectus Delivery
Period, before preparing, using, authorizing, approving, referring to or filing any Issuer Free
Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or
the Prospectus, whether before or after the time that the Registration Statement becomes effective,
the Company will furnish to the Representative and counsel for the Underwriters a copy of the
proposed Issuer Free Writing Prospectus, amendment or supplement for review and, prior to the later
of the Closing Date and the termination of the Prospectus Delivery Period, will not prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Representative reasonably objects; provided, however,
that the provisions of this Section 4(c) shall not apply to the filing by the Company or the
Guarantor of a Form 10-K or Form 10-Q pursuant to Section 4(d) below.
(d) The Company and the Guarantor will file promptly all reports and any definitive proxy or
information required to be filed by the Company or the Guarantor with the Commission pursuant to
the Exchange Act during the Prospectus Delivery Period and advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) when any Issuer Free Writing Prospectus has been filed; (iv) of any request
by the Commission for any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or any other request by the Commission for any additional information; (v) of the
issuance by the Commission of any order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the
13
initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the
Securities Act; (vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus
(when taken together with the other Time of Sale Information) would include any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances existing when the
Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus (when taken
together with the other Time of Sale Information) is delivered to a purchaser, not misleading;
(vii) of the receipt by the Company or the Guarantor of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (viii) of the receipt by the Company or the Guarantor of
any notice with respect to any suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company and the Guarantor will use their reasonable best efforts to prevent the issuance of any
such order suspending the effectiveness of the Registration Statement, preventing or suspending the
use of the Prospectus or suspending any such qualification of the Securities and, if any such order
is issued, will obtain as soon as possible the withdrawal thereof.
(e) (1) If during the Prospectus Delivery Period (i) any event shall occur or condition shall
exist as a result of which the Prospectus as then amended or supplemented would include 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, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Prospectus to comply with law, the Company will promptly notify the Underwriters
thereof and promptly prepare and, subject to paragraph (c) above, the Company and the Guarantor
will file with the Commission and furnish to the Underwriters such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply with applicable law and (2) if
at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Time of Sale Information would 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 existing at the Time of Sale, not misleading or (ii) it is necessary to amend
or supplement the Time of Sale Information to comply with law, the Company will immediately notify
the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, the Company and
the Guarantor will file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) The Company and the Guarantor will arrange for the qualification of the Securities and the
Guarantee for offer and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in effect so long as
required for distribution of the Securities and the Guarantee; provided that neither the Company
nor the Guarantor shall be required to (i) qualify as a foreign corporation or
14
other entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) The Company will make generally available to its security holders and the Representative
as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement.
(h) During the period from the date hereof through and including the date that is 90 days
after the date hereof, neither the Company nor the Guarantor will, without the prior written
consent of each of the Representative and Credit Suisse Securities (USA) LLC, offer, sell, contract
to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the
Guarantor having a term of more than one year (other than the Securities); provided, however, this
clause does not apply to drawings made under the Credit Agreement, dated as of November 21, 2005,
among the Company, the Guarantor, The Royal Bank of Scotland Plc, as syndication agent, JPMorgan
Chase Bank, N.A., as administrative agent, and the lenders that are party thereto, or commercial
paper facilities with banks or other institutional lenders, providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed, refunded, replaced, increased, or
refinanced in whole or in part from time to time (and whether or not with the original
administrative agent and lenders or another administrative agent or agents or other lenders and
whether provided under any other credit or other agreement or indenture).
(i) The Company will apply the net proceeds from the sale of the Securities as described in
the Time of Sale Information and in the Prospectus under the heading “Use of Proceeds.”
(j) The Company will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Securities.
(k) The Company will, pursuant to reasonable procedures developed in good faith, retain, as
and to the extent required under Rule 433 under the Securities Act, copies of each Issuer Free
Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the Underwriters.Each Underwriter hereby represents and
agrees that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company or the
Guarantor and not incorporated by reference into the Registration Statement and any press
15
release issued by the Company or the Guarantor) other than (i) a free writing prospectus that
contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was
not included (including through incorporation by reference) in a Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on
Annex A or prepared pursuant to Section 3(c) or Section 4(c) above, or (iii) any free writing
prospectus prepared by such Underwriter and approved by the Company or the Guarantor in advance in
writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter
Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially in the form of Annex B hereto without the consent
of the Company or the Guarantor; provided further that any Underwriter using such term sheet shall
notify the Company, and provide a copy of such term sheet to the Company, prior to, or
substantially concurrently with, the first use of such term sheet.
(d) It will, pursuant reasonable procedures developed in good faith, retain, as and to the
extent required under Rule 433 under the Securities Act, copies of each free writing prospectus
used or referred to by it, in accordance with Rule 433 under the Securities Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
(f) In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”), it has not made and will not make an offer of Securities to the public in
that Relevant Member State prior to the publication of a prospectus in relation to the Securities
which has been approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the competent authority in
that Relevant Member State, all in accordance with the Prospectus Directive, except that it may,
with effect from and including the Relevant Implementation Date, make an offer of Securities to the
public in that Relevant Member State at any time: (i) to legal entities which are authorized or
regulated to operate in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities; (ii) to any legal entity which has two or more
of (A) an average of at least 250 employees during the last financial year, (B) a total balance
sheet of more than €43,000,000 and (C) an annual net turnover of more than €50,000,000 as shown in
its last annual or consolidated accounts; or (iii) in any other circumstances which do not require
the publication by us of a prospectus pursuant to Article 3 of the Prospectus Directive. For the
purposes of this provision, the term “offer of Securities to the public” in relation to the
Securities in any Relevant Member State means the communication in any form and by any means of
sufficient information of the terms of the offer
16
and the Securities to be offered so as to enable an investor to decide to purchase or
subscribe for Securities, as the same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member State and the term “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
(g) (i) It has only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the Financial Services and Markets Act of 2000 (the “FSMA”)) received by
it in connection with the issue or sale of the Securities in circumstances in which Section 21(1)
of the FSMA does not apply to the Company or the Guarantor and (ii) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom.
(h) It has not offered or sold any Securities by means of any document other than to persons
whose ordinary business is to buy or sell shares or debentures, whether as principal or agent, or
in circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong, and no advertisement, invitation or document relating to the
Securities may be issued, whether in Hong Kong or elsewhere, which is directed at, or the contents
of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do
so under the securities laws of Hong Kong) other than with respect to Securities which are or are
intended to be disposed of only to persons outside Hong Kong or only to “professional investors”
within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules
made thereunder.
(i) It has not circulated or distributed and will not circulate or distribute any prospectus
or any other document or material in connection with the offer or sale, or invitation for
subscription or purchase, of the Securities, and it has not offered or sold, and will not offer or
sell the Securities, and has not made and will not make an invitation for subscription or purchase
of the Securities, whether directly or indirectly, to persons in Singapore other than as permitted
under the Securities and Futures Act, Chapter 289 of Singapore.
(j) It has not offered or sold and will not offer or sell any Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein
means any person resident in Japan, including any corporation or other entity organized under the
laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a
resident of Japan, except pursuant to an exemption from the registration requirements of, and
otherwise in compliance with, the Securities and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company and the Guarantor of their covenants and other obligations hereunder and to the following
additional conditions:
17
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424 within the
applicable time period prescribed for such filing by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose pursuant to Rule 401(g)(2) or pursuant to Section 8A under the
Securities Act shall be pending before or threatened by the Commission; the Prospectus and each
Issuer Free Writing Prospectus shall have been timely filed with the Commission under the
Securities Act (in the case of a Issuer Free Writing Prospectus, to the extent required by Rule 433
under the Securities Act) and in accordance with Section 4(a) hereof; and all requests for
additional information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representative.
(b) The representations and warranties of the Company and the Guarantor contained herein shall
be true and correct on the date hereof and on and as of the Closing Date as if made on the Closing
Date; and the statements of the Company and the Guarantor and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date.
(c) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Securities or any other debt securities or preferred stock of
or guaranteed by the Company, the Guarantor or any of the Company’s other subsidiaries by any
“nationally recognized statistical rating organization,” as such term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have
issued a public announcement that it has under surveillance or review, or has changed its outlook
with respect to, its rating of the Securities or of any other debt securities or preferred stock of
or guaranteed by the Company, the Guarantor or any of the Company’s other subsidiaries (other than
an announcement with positive implications of a possible upgrading or the reiteration of an
announcement of a surveillance, review or outlook made prior to the date of this Agreement and in
effect as of the date hereof).
(d) Subsequent to the date of the Preliminary Prospectus, no event or condition of a type
described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is
not described in the Time of Sale Information (excluding any amendment or supplement thereto) and
the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement,
the Time of Sale Information and the Prospectus.
(e) The Representative shall have received on and as of the Closing Date a certificate of an
executive officer of each of the Company and the Guarantor reasonably satisfactory to the
Representative (i) confirming that such officer has carefully reviewed the Registration Statement,
the Time of Sale Information and the Prospectus and, to the best knowledge of such officer, the
representations set forth in Section 3(b) and 3(d) hereof are true and correct, (ii) confirming
that the other representations and warranties of the Company and the Guarantor in this Agreement
are true and correct and that the Company and the Guarantor have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
18
(f) On the date of this Agreement and on the Closing Date, the independent auditors of the
Company who have certified the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to the Representative,
at the request of the Company, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative
and the independent auditors, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on
the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing
Date.
(g) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantor, shall have furnished to
the Representative their written opinion, dated the Closing Date and addressed to the Underwriters,
in form and substance satisfactory to the Representative, to the effect that:
(i) The Registration Statement is an “automatic shelf registration statement” as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date of this Agreement; each of the Preliminary
Prospectus and the Prospectus was filed with the Commission pursuant to Rule 424 under the
Securities Act on the date specified therein; and, to the best of such counsel’s knowledge,
no stop order suspending the effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose or pursuant to Section 8A of the Securities Act against
the Company or the Guarantor or in connection with the offering is pending or threatened by
the Commission;
(ii) The Registration Statement, the Preliminary Prospectus and the Prospectus (other
than (a) the financial statements and related schedules therein, including the notes thereto
and the independent registered public accounting firm’s report thereon and (b) the other
financial data that is included or incorporated by reference therein as to which such
counsel need express no opinion) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act; each Issuer Free Writing
Prospectus included in the Time of Sale Information contains the legend required by Rule 433
of the Securities Act and has been filed with the Commission to the extent, and within the
time period, required pursuant to Rule 433 of the Securities Act; and the Indenture complies
as to form in all material respects with the requirements of the Trust Indenture Act;
(iii) The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with corporate power and authority
to own its properties and conduct its business as described in the Time of Sale Information
and the Prospectus;
(iv) The Guarantor has been duly formed and is validly existing in good standing under
the laws of the State of Delaware; and all of the issued equity interests of the Guarantor
are owned directly or indirectly by the Company and, to the best of such counsel’s
knowledge, are owned free and clear of all liens, encumbrances, equities or
19
claims other than those described in the Registration Statement, the Time of Sale
Information and the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company and
the Guarantor;
(vi) The Securities have been duly authorized, executed and delivered by the Company
and the Guarantee has been duly authorized by the Guarantor and, when the Indenture has been
executed and delivered by the parties thereto and the Securities have been duly
authenticated and delivered to and paid for by the Underwriters in accordance with the terms
of the Indenture and this Agreement, the Securities and the Guarantee will be duly and
validly issued and outstanding and will constitute legally valid and binding obligations of
the Company and the Guarantor, respectively, enforceable against the Company and the
Guarantor in accordance with their terms and entitled to the benefits provided by the
Indenture, subject as to enforceability to (x) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors, (y) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought and (z) the
potential unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of a party with respect to a liability where
such indemnification is contrary to public policy;
(vii) Each of the Base Indenture and the Supplemental Indenture has been duly
authorized, executed and delivered by the Company and, in the case of the Supplemental
Indenture, the Guarantor and, assuming due authorization, execution and delivery thereof by
the Trustee, the Indenture constitutes a legally valid and binding instrument of the Company
and the Guarantor, enforceable against the Company and the Guarantor in accordance with its
terms, subject as to enforceability to (x) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors, (y) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought and (z) the
potential unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of a party with respect to a liability where
such indemnification is contrary to public policy; and the Indenture has been qualified
under the Trust Indenture Act;
(viii) The issue and sale of the Securities and Guarantee and the compliance by the
Company and the Guarantor with all of the provisions of this Agreement and the Indenture and
the consummation of the transactions contemplated herein and therein will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, any of the indentures, mortgages, deeds of trust, loan agreements or other
agreements or instruments set forth on a schedule attached to such opinion, which documents
the Company has represented constitute all material agreements to which the Company or any
of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of
20
the Company or any of its subsidiaries is subject, (ii) result in a violation of the
provisions of the certificate of incorporation or by-laws or similar organizational
documents of the Company or the Guarantor or (iii) result in a violation of any statute or
any order, rule or regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except that such counsel need express no opinion with respect to the anti-fraud
provisions of federal securities laws or with respect to state securities laws or Blue Sky
laws with respect to this paragraph and except, in the case of clauses (i) and (iii) , for
such breaches or violations that could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(ix) No consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and sale of the
Securities and Guarantee or the consummation by the Company or the Guarantor of the
transactions contemplated by any of the Transaction Documents, except such as have been
obtained under the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities by the
Underwriters, and except for such consents, approvals, authorizations, registrations or
qualifications the failure of which to obtain or make would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(x) The statements set forth in the Preliminary Prospectus under the caption
“Description of notes” (when taken together with the terms of the Securities set forth in
the Time of Sale Information) and in the Prospectus under the caption “Description of
notes,” insofar as they purport to constitute a summary of the terms of the Securities, are
accurate summaries in all material respects; and the statements set forth in the Time of
Sale Information and the Prospectus under the caption “Important U.S. federal income tax
considerations,” insofar as they purport to constitute summaries of matters of law or
regulation or legal conclusions, are accurate summaries in all material respects;
(xi) Neither the Company nor the Guarantor is and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, an “investment company,” as such term is defined in the Investment
Company Act; and
(xii) The documents incorporated by reference in the Time of Sale Information and the
Prospectus as amended or supplemented (other than (a) the financial statements and related
schedules therein, including the notes thereto and the independent registered public
accounting firm’s report thereon and (b) the other financial data that is included or
incorporated by reference therein, as to which such counsel need not comment), when they
became effective or were filed with the Commission, as the case may be, appear on their face
to be appropriately responsive in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable.
21
In addition such counsel shall state that such counsel have participated in the preparation of
the Registration Statement, the Time of Sale Information and Prospectus and in conferences with
officers and other representatives of the Company, representatives of the independent accountants
for the Company, representatives of the Underwriters and counsel for the Underwriters at which the
contents of the Registration Statement, the Time of Sale Information and Prospectus, the documents
filed by the Company with the Commission and incorporated by reference therein and related matters
were discussed and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Time of Sale Information or the Prospectus and has made no independent
check or verification thereof (except as otherwise indicated above), on the basis of the foregoing,
such counsel shall state that no facts have come to such counsel’s attention that have led such
counsel to believe that the Registration Statement, at the time of its effective date (including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be a part of the
Registration Statement at the time of effectiveness), contained an untrue statement of a material
fact or omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, that the Time of Sale Information, at the Time of Sale (which
such counsel may assume to be on the date of this Agreement) contained an untrue statement of a
material fact or omitted 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 or that the
Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits 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, except that such counsel expresses no opinion or belief with respect to
the financial statements, schedules and other financial or statistical data included or
incorporated by reference therein or the exhibits to the Registration Statement, including the Form T-1.
The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. described in this Section 6(g) shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(h) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and Deputy General Counsel of the Company, shall have
furnished to the Representative her written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance satisfactory to the Representative, to the effect that, to her
knowledge, there are no legal or governmental proceedings pending or threatened to which the
Company or the Guarantor is a party or to which any of their respective properties is subject that
are required to be disclosed in the Prospectus and are not so disclosed as required.
(i) The Representative shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such matters.
(j) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no
22
injunction or order of any federal, state or foreign court shall have been issued that would,
as of the Closing Date, prevent the issuance or sale of the Securities.
(k) The Representative shall have received on and as of the Closing Date satisfactory evidence
of the good standing of the Company and the Guarantor in their respective jurisdictions of
organization and their good standing in such other jurisdictions as the Representative may
reasonably request, in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities of such jurisdictions.
(l) On or prior to the Closing Date, the Company and the Guarantor shall have furnished to the
Representative such further certificates and documents as the Representative may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or the Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantor and each of their respective directors, each of their respective officers
who signed the Registration Statement and each person, if any, who controls the Company or the
Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity with
any information relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in the Registration
23
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or the Time of Sale Information, it being understood and agreed that the only such
information consists of the following information in the Prospectus: the third and sixth paragraphs
under “Underwriting”; and the following information in the Issuer Free Writing Prospectus dated
March 27, 2006: the items identified as “Spread to Treasury” and “Benchmark”.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnification
may be sought pursuant to paragraph (a) or (b) above, such person (the “Indemnified Person”) shall
promptly notify the person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve
it from any liability that it may have under this Section 7 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure;
and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from
any liability that it may have to an Indemnified Person otherwise than under this Section 7. If
any such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding,
as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representative and any such separate firm for the Company, the Guarantor or any of their
respective directors, any of their respective officers who signed the Registration Statement and
any control persons of the Company or the Guarantor shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
24
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of the Securities and the total
underwriting discounts and commissions received by the Underwriters in connection therewith, in
each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Securities. The relative fault of the Company and the Guarantor on the one hand and
the Underwriters on the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Guarantor or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no
event shall an Underwriter be required to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions received by such Underwriter with respect to the
25
offering of the Securities exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this
Section 7 are several in proportion to their respective purchase obligations hereunder and not
joint.
(f) The remedies provided for in this Section 7 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or materially limited on
the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company or
the Guarantor shall have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by federal or New York
State authorities; (iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside the United States,
that, in the judgment of the Representative, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus; or (v)
the representation in Section 3(b) is incorrect in any respect.
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on
its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
26
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the
Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus
such Underwriter’s pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 9 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, any Issuer
Free Writing Prospectus, the Time of Sale Information and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s
counsel and independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Representative may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of
counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); and (viii) all expenses incurred by the Company in
connection with any “road show” presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 8 (other than pursuant to clause
(v) of Section 8 if the Company, the Guarantor and the Underwriters subsequently enter into another
agreement for the Underwriters to underwrite the same or substantially similar securities of the
Company and the Guarantor), (ii) the Company for any reason fails to tender the Securities for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any
reason permitted under this Agreement, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
27
counsel) reasonably incurred by the Underwriters in connection with this Agreement and the
offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Guarantor, the Underwriters contained in this
Agreement or made by or on behalf of the Company, the Guarantor, the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment
for the Securities and shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company, the Guarantor, the
Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
14. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any
such action taken by the Representative shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention:
▇▇▇▇▇ ▇▇▇▇▇▇. Notices to the Company or the Guarantor shall be given to it at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: General Counsel.
(c) Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, HANOVER COMPRESSOR COMPANY |
||||
| By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||
| Name: | ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President and Chief Financial Officer | |||
HANOVER COMPRESSION LIMITED PARTNERSHIP |
||||
| By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||||
| Name: | ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President and Chief Financial Officer | |||
Accepted: March 27, 2006
|
||
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. |
||
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||
Authorized Signatory |
||
For itself and on behalf of the |
||
several Underwriters listed in |
||
Schedule 1 hereto. |
29
Schedule 1
| Underwriter | Principal Amount | |||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
$ | 56,250,000 | ||
Credit Suisse Securities (USA) LLC |
56,250,000 | |||
Citigroup Global Markets Inc. |
9,375,000 | |||
Deutsche Bank Securities Inc. |
9,375,000 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
9,375,000 | |||
Wachovia Capital Markets, LLC |
9,375,000 | |||
Total |
$ | 150,000,000 | ||
Annex A
Additional Time of Sale Information
| • | Pricing term sheet substantially in the form of Annex B hereto. |
Annex B
Hanover Compressor Company
Hanover Compression Limited Partnership
Hanover Compression Limited Partnership
Pricing Term Sheet
Issuer: |
Hanover Compressor Company | |
Security Description: |
Senior Notes | |
Distribution: |
SEC Registered | |
Face: |
$150,000,000 | |
Gross Proceeds: |
$150,000,000 | |
Net Proceeds to Issuer (Before Expenses): |
$146,625,000 | |
Coupon: |
7.500% | |
Maturity: |
April 15, 2013 | |
Offering Price: |
100.000% | |
Yield to Maturity: |
7.500% | |
Spread to Treasury: |
+280 bps | |
Benchmark: |
UST 3.625% 5/13 | |
Ratings: |
B3/B | |
Interest Pay Dates: |
April 15 and October 15 | |
Beginning: |
October 15, 2006 | |
Clawback: |
Up to 35% at 107.5% | |
Until: |
April 15, 2009 | |
Optional redemption: |
Make-whole call @T+50 bps prior to April 15, | |
| 2010, then: | ||
April 15, 2010: |
103.750% | |
April 15, 2011: |
101.875% | |
April 15, 2012 and thereafter: |
100.000% | |
Change of control: |
Put @ 101% of principal plus accrued interest | |
Trade Date: |
March 27, 2006 | |
Settlement Date: |
(T+4) March 31, 2006 | |
CUSIP: |
▇▇▇▇▇▇▇▇▇ | |
ISIN: |
US410768AH87 | |
Bookrunners: |
JPMorgan | |
| Credit Suisse | ||
Co-Managers: |
Citigroup | |
| Deutsche Bank Securities | ||
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| Wachovia Securities |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
collect (▇▇▇) ▇▇▇-▇▇▇▇.