CATERPILLAR INC. $500,000,000 5.700% Notes due 2016 $750,000,000 6.050% Debentures due 2036 UNDERWRITING AGREEMENT
$500,000,000
5.700%
Notes due 2016
$750,000,000
6.050%
Debentures due 2036
To
the Representatives named in Schedule B hereto
of
the Several Underwriters named in Schedule A hereto
August
3,
2006
Ladies
and
Gentlemen:
Caterpillar
Inc.
(the “Company”) confirms its agreement with you and each of the other
“Underwriters” named in Schedule A hereto (collectively, the “Underwriters,”
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom you are acting as representatives
(in
such capacity, the “Representatives”), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth in said Schedule A of $500,000,000
aggregate principal amount of the Company’s 5.700% Notes due 2016 (the “Notes”)
and $750,000,000 aggregate principal amount of the Company’s 6.050% Debentures
due 2036 (the “Debentures” and, together with the Notes, the “Securities”)
described in Schedules B-1 and B-2 hereto. The Securities are to be issued
pursuant to an indenture, dated as of May 1, 1987, as supplemented (the
“Indenture”), between the Company and Citibank, N.A., as trustee (the
“Trustee”). The term “Indenture,” as used herein, includes the Officers’
Certificates (as defined in the Indenture) establishing the form and terms
of
the Securities pursuant to Section 301 of the Indenture.
The
Company
understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement
has been executed and delivered.
Certain
terms used
herein are defined in Section 18 hereof.
| SECTION 1. |
Representations
and Warranties.
|
(a)
Representations
and
Warranties by the Company. The Company represents and warrants to each
Underwriter as of the date hereof, and as of the Closing Time referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i)
Compliance
with
Registration Requirements. The Company meets the requirements for use of
Form S-3 under the 1933 Act and has filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf registration statement, as
defined in Rule 405, on Form S-3 (File No. 333-136265) covering
the registration of the Securities under the 1933 Act, including a related
Base
Prospectus. The Company may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule 424(b)
(“Rule 424(b)”) of the rules and regulations of the Commission under the
1933 Act (the “1933 Act Regulations”), one or more preliminary prospectus
supplements relating to the Securities, each of which has previously been
furnished to you. Promptly after execution and delivery of this Agreement,
the
Company will prepare and file a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the 1933 Act and the 1933
Act Regulations, and, except to the extent the Representatives shall agree
in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed
at
the Execution Time, shall contain only such specific additional information
and
other changes (beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time, will
be
included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
For
purposes of
this Agreement, all references to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the Final Prospectus or any amendment
or
supplement to any of the foregoing shall be deemed to include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the 1934 Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or
the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the 1934 Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference.
Each
of the
Registration Statement and any post-effective amendment thereto has become
effective under the 1933 Act and no stop order suspending the effectiveness
of
the Registration Statement or any post-effective amendment thereto or notice
objecting to its use has been issued under the 1933 Act and no proceedings
for
that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the
Commission for additional information has been complied with.
On
each Effective
Date, the Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and at the Closing Time, the Final
Prospectus (and any supplement thereto) will, comply in all material respects
with the applicable requirements of the 1933 Act and the 1933 Act Regulations,
the 1934 Act and the respective rules thereunder (the “1934 Act Regulations”)
and the 1939 Act and the respective rules thereunder (the “1939 Act
Regulations”); on each Effective Date and at the Execution Time, the
Registration Statement 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 in order to make the statements therein not misleading; and on
the
date of any filing pursuant to Rule 424(b) and at the Closing Time, the
Final Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility (Form T-1)
under the 1939 Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement
or
the Final Prospectus (or any supplement thereto).
(ii)
Disclosure
Package.
The Disclosure Package, when taken together as a whole, does not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading. The preceding sentence does not apply
to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(iii)
Well-known
Seasoned
Issuer. (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of complying
with
Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the 1934 Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offering relating to the Securities in
reliance on the exemption in Rule 163, and (iv) at the Execution Time
(with such date being used as the determination date for purposes for this
clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees
required by the Commission relating to the Securities within the time required
by Rule 456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(iv)
Ineligible
Issuer.
(i) At the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the
Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer
(as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the
Company be considered an Ineligible Issuer.
(v)
Issuer
Free Writing
Prospectuses. Each Issuer Free Writing Prospectus and the final term sheet
prepared and filed pursuant to Section 3(a) hereof do not include any
information that conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified.
The foregoing sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(vi)
Independent
Accountants. The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(vii)
Financial
Statements. The financial statements included in the Registration Statement,
the
Disclosure Package and the Final Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; and said financial
statements have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required to
be
stated therein. The selected financial data and the summary financial
information included in the Disclosure Package and the Final Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(viii)
No
Material Adverse
Change in Business. Since the respective dates as of which information is given
in the Disclosure Package and the Final Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one
enterprise, and (C) except for regular quarterly dividends on the Common Stock
in amounts per share that are consistent with past practice, there has been
no
dividend or distribution of any kind declared, paid or made by the Company
on
any class of its capital stock.
(ix)
Good
Standing of
the Company. The Company has been duly organized and is validly existing as
a
corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and
to
conduct its business as described in the Disclosure Package and the Final
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(x)
Good
Standing of
Subsidiaries. Each “significant subsidiary” of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Disclosure
Package and the Final Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or
to be in good standing would not result in a Material Adverse Effect; except
as
otherwise disclosed in the Disclosure Package and the Final Prospectus, all
of
the issued and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is owned
by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of
the
outstanding shares of capital stock of any subsidiary was issued in violation
of
the preemptive or similar rights of any securityholder of such
subsidiary.
(xi)
Capitalization.
The
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; and none
of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(xii)
Authorization
of
Agreement. This Agreement has been duly authorized, executed and delivered
by
the Company.
(xiii)
Authorization
of
the Indenture. The Indenture has been duly authorized by the Company and duly
qualified under the 1939 Act and constitutes a valid and binding agreement
of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiv)
Authorization
of
the Securities. The Securities have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and, when authenticated,
issued and delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this Agreement,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of
whether enforcement is considered in a proceeding in equity or at law), and
will
be in the form contemplated by, and entitled to the benefits of, the
Indenture.
(xv)
Description
of the
Securities and the Indenture. The Securities and the Indenture will conform
in
all material respects to the respective statements relating thereto contained
in
the Disclosure Package and the Final Prospectus and will be in substantially
the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xvi)
Absence
of Defaults
and Conflicts. Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or in default in the performance or observance of
any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries
is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (collectively,
“Agreements and Instruments”), except for such defaults that would not result in
a Material Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated herein and in the Disclosure Package and the Final
Prospectus (including the issuance and sale of the Securities and the use of
the
proceeds from the sale of the Securities as described in the Disclosure Package
and the Final Prospectus under the caption “Use of Proceeds”) and compliance by
the Company with its obligations hereunder and under the Indenture and the
Securities have been duly authorized by all necessary corporate action and
do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a “Repayment Event”
means any event or condition which gives the holder of any note, debenture
or
other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary.
(xvii)
Absence
of Labor
Dispute. No labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent, and the Company is
not
aware of any existing or imminent labor disturbance by the employees of any
of
its or any subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result in
a
Material Adverse Effect.
(xviii)
Absence
of
Proceedings. There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to be disclosed
in
the Disclosure Package and the Final Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which any
of
their respective property or assets is the subject which are not described
in
the Disclosure Package and the Final Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xix)
Accuracy
of
Exhibits. There are no contracts or documents which are required to be described
in the Registration Statement, the Base Prospectus or the documents incorporated
by reference therein or to be filed as exhibits thereto which have not been
so
described and filed as required.
(xx)
Possession
of
Intellectual Property. The Company and its subsidiaries own or possess, or
can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual Property”) necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any
of
its subsidiaries therein, and which infringement or conflict (if the subject
of
any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would result in a Material Adverse Effect.
(xxi)
Absence
of Further
Requirements. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or
sale
of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement or for the due execution, delivery or performance of the
Indenture by the Company, except such as have been already obtained or as may
be
required under the 1933 Act or the 1933 Act Regulations or state securities
laws
and except for the qualification of the Indenture under the 1939
Act.
(xxii)
Possession
of
Licenses and Permits. The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of
such
Governmental Licenses to be in full force and effect would not have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
such
Governmental Licenses which, singly or in the aggregate, if the subject of
an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xxiii)
Title
to Property.
The Company and its subsidiaries have good and marketable title to all real
property owned by the Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of
any
kind except such as (a) are described in the Disclosure Package and the Final
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed
to be
made of such property by the Company or any of its subsidiaries; and all of
the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any
of its subsidiaries holds properties described in the Disclosure Package, are
in
full force and effect, and neither the Company nor any subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse
to
the rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises
under
any such lease or sublease.
(xxiv)
Environmental
Laws.
Except as described in the Disclosure Package and the Final Prospectus and
except as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation
of
any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending
or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up
or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(b)
Officer’s
Certificates. Any certificate signed by any officer of the Company or any of
its
subsidiaries delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
| SECTION 2. |
Sale
and
Delivery to Underwriters; Closing.
|
(a)
Securities.
On the
basis of the representations and warranties herein contained and subject to
the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and
not
jointly, agrees to purchase from the Company, at the respective prices set
forth
in Schedules B-1 and B-2, the respective aggregate principal amounts of
Notes and Debentures set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Notes or Debentures which
such Underwriter may become obligated to purchase pursuant to the provisions
of
Section 10 hereof.
(b)
Payment.
Payment of
the purchase price for, and delivery of certificates for, the Securities shall
be made at the offices of Underwriters’ counsel, or at such other place as shall
be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern
Time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern
Time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later
than
ten business days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being herein called
“Closing Time”).
Payment
shall be
made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives
for
the respective accounts of the Underwriters of the Securities to be purchased
by
them. It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Each of
Citigroup Global Markets Inc., ABN AMRO Incorporated and Barclays Capital Inc.,
in each case individually and not as a Representative of the Underwriters,
may
(but shall not be obligated to) make payment of the purchase price for the
Securities, if any, to be purchased by any Underwriter whose funds have not
been
received by the Closing Time, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
| SECTION 3. |
Covenants
of
the Company.
|
The
Company
covenants with each Underwriter as follows:
(a)
Compliance
with
Securities Regulations and Commission Requests. The Company, subject to Section
3(b), will comply with the requirements of Rule 424 and will notify the
Representatives immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or the Final Prospectus or any supplement thereto shall have been filed, (ii)
of
the receipt of any comments from the Commission with respect to the Registration
Statement, Preliminary Prospectus or Final Prospectus, or any amendment thereof
or supplement thereto, or any document incorporated therein by reference, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Final Prospectus or for additional
information and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any notice of
objection to the use of the Registration Statement pursuant to Rule 401(g),
or
of any order preventing or suspending the use of any Preliminary Prospectus,
or
of the suspension of the qualification of the Securities for offering or sale
in
any jurisdiction, or of the initiation or threatening of any proceedings for
any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that
it
was not, it will promptly file such prospectus. The Company will promptly
prepare a final term sheet, containing solely a description of final terms
of
the Securities and the offering thereof, in a form approved by the
Representatives and will file such term sheet pursuant to Rule 433(d)
within the time required by such Rule. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b)
Filing
of
Amendments. The Company will give the Representatives notice of its intention
to
file or prepare any amendment to the Registration Statement, or any amendment,
supplement or revision (including any Preliminary Prospectus or the Final
Prospectus) to the Base Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as
the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c)
Delivery
of
Registration Statement. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to the Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters.
(d)
Delivery
of
Prospectuses. The Company has delivered to each Underwriter, without charge,
as
many copies of each Preliminary Prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. If at any time prior to the filing of a
final prospectus pursuant to Rule 424(b), any event occurs as a result of
which the Disclosure Package would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made at such time not
misleading, the Company will (i) notify promptly the Representatives so
that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct
such statement or omission; and (iii) supply any amendment or supplement to
you in such quantities as you may reasonably request. The Company will furnish
to each Underwriter, without charge, during the period when the Final Prospectus
is required to be delivered under the 1933 Act (including in circumstances
where
such requirement may be satisfied pursuant to Rule 172), such number of
copies of the Final Prospectus (as amended or supplemented) and any supplement
thereto, and each Issuer Free Writing Prospectus, as such Underwriter may
reasonably request.
(e)
Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act
and
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the
1939
Act and the 1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Final Prospectus. If at any time when a prospectus is required by the 1933
Act
to be delivered in connection with the sales of the Securities (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172), any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for
the
Company, to amend the Registration Statement or amend or supplement the Final
Prospectus in order that the Final Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Final Prospectus in order
to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Final Prospectus comply
with such requirements, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f)
Blue
Sky
Qualifications. The Company will use its best efforts, in cooperation with
the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may designate and to maintain such qualifications in effect
for
a period of not less than one year from the effective date of the Registration
Statement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction
in
which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction
to
continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement. The Company will also
supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws
of
such jurisdiction as the Underwriters may request.
(g)
Rule
158. The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h)
Use
of Proceeds.
The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Disclosure Package under “Use of
Proceeds.”
(i)
Reporting
Requirements. The Company, during the period when the Final Prospectus is
required to be delivered under the 1933 Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act Regulations.
(j)
Other
Offerings.
During the period beginning from the date of this Agreement and continuing
to
and including the Closing Time, the Company will not offer, sell, contract
to
sell or otherwise dispose of any debt securities of the Company which mature
more than one year after such Closing Time and which are substantially similar
to the Securities, without the prior written consent of the
Representatives.
(k)
Free
Writing
Prospectuses. The Company agrees that, unless it has obtained or will obtain
the
prior written consent of the Representatives, and each Underwriter, severally
and not jointly, agrees with the Company that, unless it has obtained or will
obtain, as the case may be, the prior written consent of the Company, it has
not
made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405) required to be filed
by the Company with the Commission or retained by the Company under
Rule 433, other than the information contained in the final term sheet
prepared and filed pursuant to Section 3(a) hereof; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule C hereto. Any
such free writing prospectus consented to by the Representatives or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and
(y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
| SECTION 4. |
Payments
of
Expenses.
|
(a)
Expenses.
The
Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of
the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates
for
the Securities to the Underwriters, (iv) the fees and disbursements of the
Company’s counsel, accountants and other advisors, (v) the qualification of the
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
Preliminary Prospectus and of the Final Prospectus and any amendments or
supplements thereto, and of any Issuer Free Writing Prospectus, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue
Sky
Survey and any supplement thereto, (viii) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities, and (ix) any fees payable in connection
with the rating of the Securities.
(b)
Termination
of
Agreement. If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters.
| SECTION 5. |
Conditions
of
Underwriters’ Obligations.
|
The
obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof
or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions.
(a)
Final
Prospectus
and Registration Statement. The Final Prospectus, and any supplement thereto,
have been filed in the manner and within the time period required by
Rule 424(b); the final term sheet contemplated by Section 3(a) hereof,
and any other material required to be filed by the Company pursuant to
Rule 433(d) under the 1933 Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433;
and at Closing Time no stop order suspending the effectiveness of the
Registration Statement and no notice objecting to its use shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters.
(b)
Opinion
of Counsel
for Company. At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(c)
Opinion
of Counsel
for Underwriters. At Closing Time, the Representatives shall have received
the
favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, together with signed or reproduced copies of
such
letter for each of the other Underwriters with respect to the incorporation
of
the Company, the Securities, the Indenture, the Registration Statement, the
Disclosure Package and the Final Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters. In giving such opinion such counsel may rely, as to
all
matters governed by the laws of jurisdictions other than the law of the State
of
New York and the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to
the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon
certificates of officers of the Company and its subsidiaries and certificates
of
public officials.
(d)
Officers’
Certificate. At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Disclosure
Package, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and of the
chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii)
the
representations and warranties in Section l(a) hereof are true and correct
with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time and (iv)
no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending
or are contemplated by the Commission.
(e)
Accountants’
Comfort Letter. At the time of the execution of this Agreement, the
Representatives shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement, the Disclosure Package and the Final
Prospectus.
(f)
Bring-down
Comfort
Letter. At Closing Time, the Representatives shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall
be a date not more than three business days prior to Closing Time.
(g)
Maintenance
of
Rating. At Closing Time, the Securities shall be rated at least “A2” by ▇▇▇▇▇’▇
Investors Service, Inc. and “A” by Standard & Poor’s Ratings Group, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and the Company shall have
delivered to the Representatives a letter dated the Closing Time, from each
such
rating agency, or other evidence satisfactory to the Representatives, confirming
that the Securities have such ratings; and since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company’s other securities by any “nationally
recognized statistical rating organization,” as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or
review its rating of the Securities or any of the Company’s other
securities.
(h)
Additional
Documents. At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form
and
substance to the Representatives and counsel for the Underwriters.
(i)
Termination
of
Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to
Closing Time and such termination shall be without liability of any party to
any
other party except as provided in Section 4 and except that Sections 1, 6,
7 and
8 shall survive any such termination and remain in full force and
effect.
| SECTION 6. |
Indemnification.
|
(a)
Indemnification
of
Underwriters. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i)
against
any and all
loss, liability, claim, damage and expense whatsoever, as incurred, arising
out
of any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein
or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included in
the
Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to the Securities, the Final Prospectus or any Issuer Free
Writing Prospectus, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)
against
any and all
loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) such settlement is effected with the written
consent of the Company; and
(iii)
against
any and all
expense whatsoever, as incurred (including the fees and disbursements of counsel
chosen by the Representatives), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
(i)
or (ii) above; provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out
of
any untrue statement or omission or alleged untrue statement or omission made
in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in
the
Registration Statement (or any amendment thereto), or the Base Prospectus,
any
Preliminary Prospectus or any other preliminary prospectus supplement relating
to the Securities, the Final Prospectus or any Issuer Free Writing
Prospectus.
(b)
Indemnification
of
Company, Directors and Officers. Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act
against any and all loss, liability, claim, damage and expense described in
the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or
omissions, made in the Registration Statement (or any amendment thereto), or
the
Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to the Securities, the Final Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein.
(c)
Actions
Against
Parties; Notification. Each indemnified party shall give notice as promptly
as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it
may have otherwise than on account of this indemnity agreement. In the case
of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at
its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to
or an admission of fault, culpability or a failure to act by or on behalf of
any
indemnified party.
(d)
Settlement
without
Consent if Failure to Reimburse. If at any time an indemnified party shall
have
requested an indemnifying party to reimburse the indemnified party for fees
and
expenses of counsel, such indemnifying party agrees that it shall be liable
for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
| SECTION 7. |
Contribution.
|
If
the
indemnification provided for in Section 6 hereof is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then
each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement 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) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The
relative
benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover
of
the Final Prospectus, bear to the aggregate initial public offering price of
the
Securities as set forth on such cover.
The
relative fault
of the Company on the one hand and the Underwriters on the other hand shall
be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact relates to information supplied by the Company or by
the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The
Company and 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 which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party
and
referred to above in this Section shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
claim
whatsoever based upon any such untrue or alleged untrue statement or omission
or
alleged omission.
Notwithstanding
the
provisions of this Section 7, no Underwriter shall be required to contribute
any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any 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 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
For
purposes of
this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and
each person, if any, who controls the Company within the meaning of Section
15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters’ respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their respective
names in Schedule A hereto and not joint.
| SECTION 8. |
Representations,
Warranties and Agreements to Survive
Delivery.
|
All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
| SECTION 9. |
Termination
of Agreement.
|
(a)
Termination;
General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as
one enterprise, whether or not arising in the ordinary course of business,
or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change
or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities
or
to enforce contracts for the sale of the Securities, or (iii) if trading in
any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, the Chicago Stock Exchange or the
Pacific Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or
by
such system or by order of the Commission or any other Governmental authority,
or (iv) if a banking moratorium has been declared by either Federal or New
York
authorities.
(b)
Liabilities.
If
this Agreement is terminated pursuant to this Section, such termination shall
be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
| SECTION 10. |
Default
by
One or More of the Underwriters.
|
If
one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which
it
or they are obligated to purchase under this Agreement (the “Defaulted
Securities”), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the nondefaulting
Underwriters, or any other Underwriters, to purchase all, but not less than
all,
of the Defaulted Securities in such amounts as may be agreed upon and upon
the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a)
if
the number of
Defaulted Securities does not exceed 10% of the aggregate principal amount
of
the Securities to be purchased hereunder, each of the nondefaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all nondefaulting
Underwriters, or
(b)
if
the number of
Defaulted Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased hereunder, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No
action taken
pursuant to this Section shall relieve any defaulting Underwriter from liability
with respect to its default.
In
the event of any
such default which does not result in a termination of this Agreement, either
the Representatives or the Company shall have the right to postpone the Closing
Time for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Final Prospectus or in any other
documents or arrangements. As used herein, the term “Underwriter” includes any
person substituted for any Underwriter under this Section 10.
| SECTION 11. |
Notices.
|
All
notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives, c/o Citigroup Global Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; attention of General Counsel; fax ▇▇▇-▇▇▇-▇▇▇▇; and
notices to the Company shall be directed to it at its corporate offices in
Peoria, Illinois, attention of Secretary.
| SECTION 12. |
Parties.
|
This
Agreement
shall each inure to the benefit of and be binding upon the Underwriters and
the
Company and their respective successors. Nothing expressed or mentioned in
this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred
to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of
such
purchase.
| SECTION 13. |
No
Fiduciary
Duty.
|
The
Company hereby
acknowledges that (a) the purchase and sale of the Securities pursuant to
this Agreement is an arms’-length commercial transaction between the Company, on
the one hand, and the Underwriters, on the other, (b) the Underwriters are
acting as principal and not as agent or fiduciary of the Company and
(c) the Company’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, the Company agrees
that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have rendered advisory services
of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
| SECTION 14. |
Integration.
|
This
Agreement
supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Underwriters, or any of them, with respect to the
subject matter hereof.
| SECTION 15. |
Governing
Law
and Time.
|
THIS
AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
| SECTION 16. |
Effect
of
Headings.
|
The
Section
headings herein are for convenience only and shall not affect the construction
thereof.
| SECTION 17. |
Waiver
of
Jury Trial.
|
The
Company hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
and
all right to a trial by jury in any legal proceeding arising out of or relating
to this Agreement or the transactions contemplated thereby.
| SECTION 18. |
Definitions.
|
The
terms which
follow, when used in this Agreement, shall have the meanings
indicated.
“1933
Act” shall
mean the Securities Act of 1933, as amended, and the rules and regulations
of
the Commission promulgated thereunder.
“1934
Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“1939
Act” shall
mean the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Base
Prospectus”
shall mean the base prospectus referred to in Section 1(a)(i) contained in
the Registration Statement at the Execution Time.
“Business
Day”
shall mean any day other than a Saturday, a Sunday or legal holiday or a day
on
which banking institutions or trust companies are authorized or obligated by
law
to close in New York City.
“Commission”
shall
mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer
Free Writing Prospectuses, if any, identified in Schedule C hereto,
(iv) the final term sheet prepared and filed pursuant to Section 3(a)
hereto, if any, and (v) any other Free Writing Prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
“Effective
Date”
shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective.
“Execution
Time”
shall mean the date and time that this Agreement is executed and delivered
by
the parties hereto.
“Final
Prospectus”
shall mean the prospectus supplement relating to the Securities that was first
filed pursuant to Rule 424(b) after the Execution Time, together with the
Base Prospectus.
“Free
Writing
Prospectus” shall mean a free writing prospectus, as defined in
Rule 405.
“Issuer
Free
Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in Section 1(a)(i) of this Agreement, which is used
prior to the filing of the Final Prospectus, together with the Base
Prospectus.
“Registration
Statement” shall mean the registration statement referred to in
Section 1(a)(i) of this Agreement, including exhibits and financial
statements and any prospectus supplement relating to the Securities that is
filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective
Date and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so
amended.
“Rule 158”,
“Rule 163”, “Rule 164”, “Rule 172”, “Rule 401”,
“Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” and
“Rule 433” refer to such rules under the Act.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in
Rule 405.
|
Very
truly
yours,
|
|||||
|
By:
|
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
||||
|
|
|||||
|
Name:
|
▇▇▇▇▇
▇.
▇▇▇▇▇▇
|
||||
|
Title:
|
Treasurer
|
||||
|
Accepted
as
of the date hereof:
|
|||||
|
As
Representatives of the Several Underwriters
|
|||||
|
CITIGROUP
GLOBAL MARKETS INC.
|
|||||
|
By:
|
/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
|
||||
|
|
|||||
|
Name:
|
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
|
||||
|
Title:
|
Managing
Director
|
||||
|
ABN
AMRO
INCORPORATED
|
|||||
|
By:
|
/s/
▇.▇.
▇▇▇▇▇▇▇▇▇
|
||||
|
|
|||||
|
Name:
|
▇.▇.
▇▇▇▇▇▇▇▇▇
|
||||
|
Title:
|
Managing
Director
|
||||
|
BARCLAYS
CAPITAL INC.
|
|||||
|
By:
|
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||
|
|
|||||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||
|
Title:
|
Director
|
||||
EXHIBIT
A
Pursuant
to Section
5(b) of this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Company, shall furnish
his
written opinion to the Underwriters to the effect that:
(i)
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 Disclosure
Package;
(ii)
The
Company has an
authorized capitalization as set forth in the Disclosure Package, 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;
(iii)
The
Company has
been duly qualified as a foreign corporation for the transaction of business
and
is in good standing under the laws of the State of Illinois;
(iv)
Such
counsel does
not know of any litigation or any governmental proceeding instituted or
threatened against the Company or any of its consolidated subsidiaries which
in
such counsel’s opinion would be likely to result in a judgment or decree having
a material adverse effect on the business or financial position of the Company
and its subsidiaries as a whole or otherwise be required to be disclosed in
the
Registration Statement which is not disclosed and accurately summarized in
the
Disclosure Package;
(v)
This
Agreement has
been duly authorized, executed and delivered by the Company;
(vi)
The
Securities have
been duly authorized and, when duly executed, authenticated, issued and
delivered by the Company, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture, subject
to
limitations imposed by bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium or other laws relating to or affecting the
enforcement of creditors’ rights generally, and to general principles of equity,
regardless of whether considered in a proceeding in equity or at law; and the
Indenture conforms and the Securities will conform in all material respects
to
the descriptions thereof in the Final Prospectus;
(vii)
The
Indenture has
been duly authorized, executed and delivered by parties thereto and constitutes
a valid and legally binding obligation of the Company, enforceable in accordance
with its terms, subject to limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other laws
relating to or affecting the enforcement of creditors’ rights generally and to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law; and the Indenture has been duly qualified under the 1939
Act;
(viii)
The
issue and sale
of the Securities and the compliance by the Company with all of the provisions
of the Securities, the Indenture and this Agreement, and the consummation of
the
transactions herein and therein contemplated, will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default under,
any agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound, and which conflicts, breaches and
defaults, if any, would individually or in the aggregate have a material adverse
effect on the business or financial position of the Company and its subsidiaries
as a whole; nor will such action result in any violation of the provisions
of
the Restated Certificate of Incorporation or the ByLaws of the Company or any
statute of the United States of America or the State of Delaware or any Rule
or
Regulation thereunder (provided that no opinion need be expressed in this
paragraph as to compliance with the 1933 Act, the 1939 Act, the 1934 Act or
the
Delaware Securities Act, or with the Bankruptcy Code of 1978, as amended, with
respect to any proceeding in which the Company is the debtor) or, to such
counsel’s knowledge, any order of any court or governmental agency or body of
the United States of America or the State of Delaware; 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
by the Company or the consummation by the Company of the other transactions
contemplated by this Agreement or the Indenture, except such as have been
obtained under the 1933 Act and the 1939 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the issue and sale of the
Securities;
(ix)
The
documents
incorporated by reference in the Final Prospectus (other than the financial
statements and related schedules and other financial data therein, as to which
such counsel need express no opinion or belief), when they were filed with
the
Commission, complied as to form in all material respects with the requirements
of the 1933 Act or the 1934 Act, as applicable, and the rules and regulations
of
the Commission thereunder;
(x)
The
Registration
Statement, as of the date on which any part thereof became effective, and the
Final Prospectus, as of the date of such opinion (other than the financial
statements and related schedules and other financial data therein, as to which
such counsel need express no opinion or belief) complied or complies as to
form
in all material respects with the requirements of the 1933 Act and the 1939
Act
and the rules and regulations thereunder; and
(xi)
The
statements made
in the Base Prospectus under the caption “Description of the Debt Securities”
and “Plan of Distribution” and in the Final Prospectus under the captions
“Description of the Notes and Debentures” and “Underwriting” are accurate
summaries of the matters therein set forth insofar as they relate to the
provisions of documents therein described and fairly present the information
called for with respect thereto by the 1933 Act and the rules and regulations
thereunder.
In
addition, such
counsel shall state that while he makes no representation that he has
independently verified the accuracy or completeness of the information contained
in the documents incorporated by reference in the Final Prospectus, he has
no
reason to believe that any of such documents (other than the financial
statements and related schedules and other financial data therein, as to which
he need express no opinion or belief), when they were so filed, 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 when such documents were so filed,
not
misleading, in each case after excluding any statement in any such documents
which does not constitute part of the Registration Statement or the Final
Prospectus pursuant to Rule 412 of Regulation C under the Act; further, such
counsel shall state that while he makes no representation that he has
independently verified the accuracy or completeness of the information contained
in the Registration Statement, the Disclosure Package and the Final Prospectus
(other than under the captions identified in paragraph (xi) hereof), he has
no
reason to believe that any part of the Registration Statement, insofar as
relevant to the offering of the Securities, as of the date on which such part
became effective, or the Disclosure Package, as of the Execution Time, or the
Final Prospectus, as of its date or as of the date of such opinion (other than
the financial statements and related schedules and other financial data therein,
as to which he need express no opinion or belief), contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case after excluding any statement in any such document
which does not constitute part of the Registration Statement, the Disclosure
Package or the Final Prospectus pursuant to Rule 412 of Regulation C under
the
Act; and he does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required
to
be incorporated by reference into the Final Prospectus or required to be
described in the Registration Statement or the Final Prospectus which are not
filed or incorporated by reference or described as required.
SCHEDULE
A
|
Underwriter
|
Principal
Amount
of
Notes
|
Principal
Amount
of
Debentures
|
|
|
|
|
|
Citigroup
Global Markets Inc.
|
$ 150,000,000
|
$ 225,000,000
|
|
ABN
AMRO
Incorporated
|
100,000,000
|
150,000,000
|
|
Barclays
Capital Inc.
|
100,000,000
|
150,000,000
|
|
Banc
of
America Securities LLC
|
40,000,000
|
60,000,000
|
|
▇.▇.
▇▇▇▇▇▇
Securities Inc.
|
40,000,000
|
60,000,000
|
|
SG
Americas
Securities, LLC
|
40,000,000
|
60,000,000
|
|
ANZ
Securities, Inc.
|
5,000,000
|
7,500,000
|
|
Commerzbank
Capital Markets Corp..
|
5,000,000
|
7,500,000
|
|
Lloyds
TSB
Bank plc
|
5,000,000
|
7,500,000
|
|
Mitsubishi
UFJ Securities International plc
|
5,000,000
|
7,500,000
|
|
RBC
Capital
Markets Corporation
|
5,000,000
|
7,500,000
|
|
TD
Securities
(USA) LLC
|
5,000,000
|
7,500,000
|
|
|
|
|
|
Total
|
$ 500,000,000
|
$ 750,000,000
|
|
|
|
SCHEDULE
B-1
5.700%
Notes due 2016
Title
of
Securities:
5.700%
Notes due
2016
Aggregate
Principal Amount:
$500,000,000
Price
to
Public:
99.795%
of the
principal amount of the Notes, plus accrued interest, if any, from August 8,
2006
Purchase
Price by Underwriters:
99.320%
of the
principal amount of the Notes, plus accrued interest, if any, from August 8,
2006
Underwriting
Discount or Commission (including aggregate dollar
amount):
0.475%
of the
principal amount of the Notes ($2,375,000)
Specified
Funds for and Method of Payment of Purchase Price and Underwriting Commission
(if not paid in the form of a discount):
Same-day
funds, to
be paid by wire transfer
Indenture:
Indenture,
dated as
of May 1, 1987, as supplemented to date (the “Indenture”), made between the
Company and Citibank, N.A., as Trustee
Maturity
Date:
August
15,
2016
Interest
Rate:
5.700%
Interest
Payment Dates:
February
15 and
August 15, commencing February 15, 2007
Regular
Record Dates:
February
1 or
August 1 immediately preceding the applicable interest payment date
Optional
Redemption Provisions:
The
Notes may be
redeemed in whole at any time or in part from time to time, at the Company’s
option, at a redemption price equal to the greater of
| · |
100%
of the
principal amount of the Notes to be redeemed,
or
|
| · |
the
sum of
the present values of the remaining scheduled payments of principal
and
interest on the Notes to be redeemed, discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the applicable Treasury Rate plus 12.5 basis
points,
|
plus
accrued and
unpaid interest on the principal amount being redeemed to the redemption
date.
“Treasury
Rate”
means, with respect to any redemption date, (1) the yield, under the heading
which represents the average for the immediately preceding week, appearing
in
the most recently published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of Governors of
the
Federal Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue (or, if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and the
Treasury Rate will be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (2) if such release
(or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal
to
the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
of
such redemption date. The Treasury Rate will be calculated on the third Business
Day preceding the redemption date.
“Business
Day”
means any calendar day that is not a Saturday, Sunday or legal holiday in New
York, New York and on which commercial banks are open for business in New York,
New York.
“Comparable
Treasury Issue” means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining
term (“Remaining Life”) of the Note or Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life of such Notes.
“Comparable
Treasury Price” means (1) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
Reference Treasury Dealer Quotations, or (2) if, after seeking at least five
Reference Treasury Dealer Quotations and excluding the highest and lowest
Reference Treasury Dealer Quotations, the Independent Investment Banker obtains
fewer than five such Reference Dealer Quotations, the average of all such
quotations.
“Independent
Investment Banker” means any of Citigroup Global Markets Inc., ABN AMRO
Incorporated or Barclays Capital Inc. and its successors, as appointed by the
Company, or, if it is unwilling or unable to select the Comparable Treasury
Issue, a nationally recognized investment banking institution which is a Primary
Treasury Dealer appointed by the Company.
“Reference
Treasury
Dealer” means (1) any of Citigroup Global Markets Inc., ABN AMRO Incorporated or
Barclays Capital Inc. and its successors, as appointed by the Company, provided,
however, that if the foregoing shall cease to be a primary U.S. government
securities dealer in New York City (a “Primary Treasury Dealer”), the Company
will substitute for such dealer another Primary Treasury Dealer and (2) any
other nationally recognized Primary Treasury Dealer selected by the Independent
Investment Banker and acceptable to the Company.
“Reference
Treasury
Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to
the
Independent Investment Banker at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
Holders
of Notes to
be redeemed will receive notice thereof by first-class mail at least 30 and
not
more than 60 days before the date fixed for redemption. If fewer than all of
the
Notes are to be redeemed, the Trustee will select the particular Notes or
portions thereof for redemption from the outstanding Notes not previously
called, pro rata or by lot, or in such other manner as the Company shall
direct.
Sinking
Fund Provisions:
No
sinking fund provisions
Manner
of
Delivery of Securities:
Registered
Global
Securities through The Depository Trust Company
Time
of
Delivery:
10:00
A.M., New
York time, on August 8, 2006
Closing
Location:
▇▇▇▇▇▇▇▇
&
▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York, New York
10004
Names
and Addresses
of the Representatives:
Citigroup
Global
Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
New
York, NY
10013
(▇▇▇)
▇▇▇-▇▇▇▇
ABN
AMRO
Incorporated
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 6th Floor
New
York, New York
10055
(▇▇▇)
▇▇▇-▇▇▇▇
Barclays
Capital
Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
New
York, New York
10166
212)
412-4000
SCHEDULE
B-2
6.050%
Debentures due 2036
Title
of
Securities:
6.050%
Debentures
due 2036
Aggregate
Principal
Amount:
$750,000,000
Price
to
Public:
99.655%
of the
principal amount of the Debentures, plus accrued interest, if any, from August
8, 2006
Purchase
Price by
Underwriters:
98.780%
of the
principal amount of the Debentures, plus accrued interest, if any, from August
8, 2006
Underwriting
Discount or Commission (including aggregate dollar amount):
0.875%
of the
principal amount of the Debentures ($6,562,500)
Specified
Funds for
and Method of Payment of Purchase Price and Underwriting Commission (if not
paid
in the form of a discount):
Same-day
funds, to
be paid by wire transfer
Indenture:
Indenture,
dated as
of May 1, 1987, as supplemented to date (the “Indenture”), made between the
Company and Citibank, N.A., as Trustee
Maturity
Date:
August
15,
2036
Interest
Rate:
6.050%
Interest
Payment
Dates:
February
15 and
August 15, commencing February 15, 2007
Regular
Record
Dates:
February
1 or
August 1 immediately preceding the applicable interest payment date
Optional
Redemption
Provisions:
The
Debentures may
be redeemed in whole at any time or in part from time to time, at the Company’s
option, at a redemption price equal to the greater of
| · |
100%
of the
principal amount of the Debentures to be redeemed,
or
|
| · |
the
sum of
the present values of the remaining scheduled payments of principal
and
interest on the Debentures to be redeemed, discounted to the date
of
redemption on a semi-annual basis (assuming a 360-day year consisting
of
twelve 30-day months) at the applicable Treasury Rate plus 15 basis
points,
|
plus
accrued and
unpaid interest on the principal amount being redeemed to the redemption
date.
“Treasury
Rate”
means, with respect to any redemption date, (1) the yield, under the heading
which represents the average for the immediately preceding week, appearing
in
the most recently published statistical release designated “H.15(519)” or any
successor publication which is published weekly by the Board of Governors of
the
Federal Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue (or, if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and the
Treasury Rate will be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (2) if such release
(or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal
to
the semi-annual equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
of
such redemption date. The Treasury Rate will be calculated on the third Business
Day preceding the redemption date.
“Business
Day”
means any calendar day that is not a Saturday, Sunday or legal holiday in New
York, New York and on which commercial banks are open for business in New York,
New York.
“Comparable
Treasury Issue” means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining
term (“Remaining Life”) of the Debenture or Debentures to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life of such Debentures.
“Comparable
Treasury Price” means (1) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
Reference Treasury Dealer Quotations, or (2) if, after seeking at least five
Reference Treasury Dealer Quotations and excluding the highest and lowest
Reference Treasury Dealer Quotations, the Independent Investment Banker obtains
fewer than five such Reference Dealer Quotations, the average of all such
quotations.
“Independent
Investment Banker” means any of Citigroup Global Markets Inc., ABN AMRO
Incorporated or Barclays Capital Inc. and its successors, as appointed by the
Company, or, if it is unwilling or unable to select the Comparable Treasury
Issue, a nationally recognized investment banking institution which is a Primary
Treasury Dealer appointed by the Company.
“Reference
Treasury
Dealer” means (1) any of Citigroup Global Markets Inc., ABN AMRO
Incorporated or Barclays Capital Inc. and its successors, as appointed by the
Company, provided, however, that if the foregoing shall cease to be a primary
U.S. government securities dealer in New York City (a “Primary Treasury
Dealer”), the Company will substitute for such dealer another Primary Treasury
Dealer and (2) any other nationally recognized Primary Treasury Dealer selected
by the Independent Investment Banker and acceptable to the Company.
“Reference
Treasury
Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to
the
Independent Investment Banker at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
Holders
of
Debentures to be redeemed will receive notice thereof by first-class mail at
least 30 and not more than 60 days before the date fixed for redemption. If
fewer than all of the Debentures are to be redeemed, the Trustee will select
the
particular Debentures or portions thereof for redemption from the outstanding
Debentures not previously called, pro rata or by lot, or in such other manner
as
the Company shall direct.
Sinking
Fund
Provisions:
No
sinking fund provisions
Manner
of Delivery
of Securities:
Registered
Global
Securities through The Depository Trust Company
Time
of
Delivery:
10:00
A.M., New
York time, on August 8, 2006
Closing
Location:
▇▇▇▇▇▇▇▇
&
▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York, New York
10004
Names
and Addresses
of the Representative:
Citigroup
Global
Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
New
York, NY
10013
(▇▇▇)
▇▇▇-▇▇▇▇
ABN
AMRO
Incorporated
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 6th Floor
New
York, New York
10055
(▇▇▇)
▇▇▇-▇▇▇▇
Barclays
Capital
Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
New
York, New York
10166
212)
412-4000
Schedule
C
August
3,
2006
Filed
Under
Rule 433
Registration
No. 333-136265
Final
Term
Sheet
$500,000,000
5.700%
Notes due 2016
|
Issuer:
|
|
|
Security:
|
5.700%
Notes
due 2016
|
|
Size:
|
$500,000,000
|
|
Maturity:
|
August
15,
2016
|
|
Coupon:
|
5.700%
|
|
Price
to
Public:
|
99.795%
|
|
Yield
to
Maturity:
|
5.727%
|
|
Spread
to
Benchmark Treasury
|
+
77 basis
points
|
|
Benchmark
Treasury:
|
UST
5.125%
due May 15, 2016
|
|
Benchmark
Treasury Yield:
|
4.957%
|
|
Interest
Payment Dates:
|
February
15
and August 15, commencing February 15, 2007
|
|
Optional
Redemption:
|
At
a discount
rate of Treasury plus 12.5 basis points
|
|
Expected
Settlement Date:
|
T+
3 ; August
8, 2006
|
|
CUSIP:
|
|
|
Anticipated
Ratings:
|
A2
by ▇▇▇▇▇’▇
Investors Service, Inc., A by Standard & Poor’s Ratings Services and
A+ by Fitch Ratings, Inc.
|
|
Note:
A
securities
rating is not a recommendation to buy, sell or hold securities and
may be
subject to revision or withdrawal at any time.
|
|
|
Joint
Book-Running Managers:
|
Citigroup
Global Markets Inc.
ABN
AMRO
Incorporated
Barclays
Capital Inc.
|
|
Co-Managers:
|
Banc
of
America Securities LLC
▇.▇.
▇▇▇▇▇▇
Securities Inc.
SG
Americas
Securities, LLC
|
|
Junior
Co-Managers
|
ANZ
Securities, Inc.
Commerzbank
Capital Markets Corp.
Lloyds
TSB
Bank plc
Mitsubishi
UFJ Securities International plc
RBC
Capital
Markets Corporation
TD
Securities
(USA) LLC
|
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 toll-free Citigroup Global Markets Inc. at ▇-▇▇▇-▇▇▇-▇▇▇▇,
ABN AMRO Incorporated at ▇-▇▇▇-▇▇▇-▇▇▇▇, or Barclays Capital Inc. at
▇-▇▇▇-▇▇▇-▇▇▇▇, ext. 2663.
August
3,
2006
Filed
Under
Rule 433
Registration
No. 333-136265
Final
Term
Sheet
$750,000,000
6.050%
Debentures due 2036
|
Issuer:
|
|
|
Security:
|
6.050%
Debentures due 2036
|
|
Size:
|
$750,000,000
|
|
Maturity:
|
August
15,
2036
|
|
Coupon:
|
6.050%
|
|
Price
to
Public:
|
99.655%
|
|
Yield
to
Maturity:
|
6.075%
|
|
Spread
to
Benchmark Treasury
|
+
97 basis
points
|
|
Benchmark
Treasury:
|
UST
5.375%
due February 15, 2031
|
|
Benchmark
Treasury Yield:
|
5.105%
|
|
Interest
Payment Dates:
|
February
15
and August 15, commencing February 15, 2007
|
|
Optional
Redemption:
|
At
a discount
rate of Treasury plus 15 basis points
|
|
Expected
Settlement Date:
|
T+
3; August
8, 2006
|
|
CUSIP:
|
|
|
Anticipated
Ratings:
|
A2
by ▇▇▇▇▇’▇
Investors Service, Inc., A by Standard & Poor’s Ratings Services and
A+ by Fitch Ratings, Inc.
|
|
Note:
A
securities
rating is not a recommendation to buy, sell or hold securities and
may be
subject to revision or withdrawal at any time.
|
|
|
Joint
Book-Running Managers:
|
Citigroup
Global Markets
Inc.
ABN
AMRO
Incorporated
Barclays
Capital Inc.
|
|
Co-Managers:
|
Banc
of
America Securities LLC
▇.▇.
▇▇▇▇▇▇
Securities Inc.
SG
Americas
Securities, LLC
|
|
Junior
Co-Managers
|
ANZ
Securities, Inc.
Commerzbank
Capital Markets Corp.
Lloyds
TSB
Bank plc
Mitsubishi
UFJ Securities International plc
RBC
Capital
Markets Corporation
TD
Securities
(USA) LLC
|
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 toll-free Citigroup Global Markets Inc. at ▇-▇▇▇-▇▇▇-▇▇▇▇,
ABN AMRO Incorporated at ▇-▇▇▇-▇▇▇-▇▇▇▇, or Barclays Capital Inc. at
▇-▇▇▇-▇▇▇-▇▇▇▇, ext. 2663.