<PAGE> 1
EXHIBIT 1.1
================================================================================
HOMESIDE LENDING, INC.
(a Florida corporation)
Medium-Term Notes due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
----------------------
================================================================================
Dated: June 6, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
SECTION 1. APPOINTMENT AS AGENT..........................................................................3
SECTION 2. REPRESENTATIONS AND WARRANTIES................................................................4
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT...............................................12
SECTION 4. COVENANTS OF THE COMPANY.....................................................................14
SECTION 5. CONDITIONS OF AGENTS' OBLIGATIONS............................................................18
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT.............................20
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY..........................................................21
SECTION 8. INDEMNIFICATION..............................................................................22
SECTION 9. CONTRIBUTION.................................................................................24
SECTION 10. PAYMENT OF EXPENSES..........................................................................26
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY...............................27
SECTION 12. TERMINATION..................................................................................27
SECTION 13. NOTICES......................................................................................28
SECTION 14. PARTIES......................................................................................30
SECTION 15. GOVERNING LAW; FORUM.........................................................................30
SECTION 16. EFFECT OF HEADINGS...........................................................................30
SECTION 17. COUNTERPARTS.................................................................................31
SCHEDULES
Schedule A - Compensation Schedule...................................................... Sch A-1
EXHIBITS
Exhibit A - Pricing Terms............................................................... Exh A-1
Exhibit B-1 - Form of Opinion of Company's Counsel...................................... Exh B-1-1
Exhibit B-2 - Form of Opinion of Company's General Counsel.............................. Exh B-2-1
</TABLE>
i
<PAGE> 3
HOMESIDE LENDING, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
June 6, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
UBS WARBURG LLC
as Agents
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
4 World Financial Center
250 Vesey Street
New York, New York 10080
Ladies and Gentlemen:
HomeSide Lending, Inc., a Florida corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Banc of America Securities LLC ("BancAmerica"),
Chase Securities Inc. ("Chase"), Deutsche Bank Securities Inc. ("Deutsche
Bank"), J.P. Morgan Securities Inc. ("J.P. Morgan") and UBS Warburg LLC
("Warburg") (each an "Agent," and collectively, the "Agents") with respect to
the issue and sale by the Company of its Medium-Term Notes Due Nine Months or
More From Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of May 15, 1997, as amended or modified from time to time
(the "Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"). As of the date of the initial execution and delivery of this
Agreement, the Company has authorized the issuance and sale of up to
U.S. $1,408,000,000 aggregate initial offering price of Notes to or through the
Agents pursuant to the terms of this Agreement. It is understood, however, that
the Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or through the Agents pursuant to the
terms of this Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the
1
<PAGE> 4
applicable Agent), in which case the applicable Agent will act as an agent of
the Company in soliciting offers for the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (No. 333-45603, No. 333-78629
and No. 333-84179) for the registration of debt securities, including the Notes,
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such additional post-effective amendments thereto as
may be required prior to any acceptance by the Company of an offer for the
purchase of Notes and each such post-effective amendment has been declared
effective by the Commission. Such registration statements (as so amended, if
applicable) have been declared effective by the Commission and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). To the extent required or permitted under the 1933 Act and the 1933 Act
Regulations, promptly after execution and delivery of this Agreement and from
time to time thereafter, the Company will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
1933 Act Regulations and/or paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Such registration statements, as amended,
including the exhibits thereto and schedules thereto at the time they became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, and as amended by each post-effective amendment thereto, if any,
are herein collectively called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus and all applicable amendments or supplements
thereto (including the final prospectus supplement, pricing supplement and Rule
430A Information or Rule 434 Information, relating to the offering of Notes, if
any), in the form first furnished to the applicable Agent(s), are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, prior to any
acceptance by the Company of an offer for the purchase of Notes. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus furnished by the
Company after the registration statement became effective and before any
acceptance by the Company of an offer for the purchase of Notes which omitted
the relevant Rule 430A Information or Rule 434 Information. For purposes of this
Agreement, all references to the Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be deemed
to include
2
<PAGE> 5
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained", "included", or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. (i) Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby authorizes each Agent to act as its agent to
solicit offers for the purchase of all or part of the Notes from the Company.
(ii) Notwithstanding anything to the contrary contained herein, the
Company, upon prior notice to the Agents, may authorize any other
person, partnership or corporation (an "Additional Agent") to act as
its agent to solicit offers for the purchase of all or part of the
Notes and/or accept offers to purchase Notes from any such Additional
Agent, provided, however, that any such Additional Agent shall have
entered into an agreement with the Company upon the same terms and
conditions as set forth in this Agreement.
(b) SALE OF NOTES. The Company shall not sell or approve the solicitation
of offers for the purchase of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon between an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the
3
<PAGE> 6
purchase of Notes. Such Agent will communicate to the Company, orally, each
offer for the purchase of Notes solicited by it on an agency basis other than
those offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any offer for the purchase of Notes,
in whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company may accept or reject any offer for the
purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer for
the purchase of Notes has been solicited by it on an agency basis and accepted
by the Company. Such Agent shall not have any liability to the Company in the
event that any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer has
been solicited by such Agent on an agency basis and accepted by the Company, the
Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii) pay to such
Agent any commission to which it would otherwise be entitled absent such
default.
(e) RELIANCE. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATION AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Agent as of the date hereof, as of the date of each
acceptance by the Company of an offer for the purchase of Notes (whether to such
Agent as principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through such Agent as
agent) (the date of each such delivery to such Agent as principal is referred to
herein as a "Settlement Date"), and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented (each of the times
referenced above is referred to herein as a "Representation Date"), as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement 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. The Indenture has been duly
qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the
4
<PAGE> 7
Commission) became effective and at each Representation Date, the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did
not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at each
Representation Date, included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectus shall not be "materially different", as such term is
used in Rule 434, from the prospectus included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Agent(s) expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Agents for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations") and, when read together with the other information
in the Prospectus, at the date hereof, at the date of the Prospectus
and at each Representation Date, did not and will not include an
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.
(iii) INDEPENDENT ACCOUNTANTS. The accountants, Arthur Andersen LLP
and KPMG LLP, each of whom certified certain financial statements and
supporting schedules thereto included in the Registration Statement
and the Prospectus, are
5
<PAGE> 8
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly (a) the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
(b) the results of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; 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 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 Registration Statement and the 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 and the Prospectus. If applicable, the pro
forma financial statements and the related notes thereto and other pro
forma financial information included in the Registration Statement and
the Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein or contemplated
thereby, (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) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) 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 Florida and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus, to enter into and perform its obligations
under this Agreement and to consummate the transactions contemplated
in the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
6
<PAGE> 9
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 to so qualify or be in good
standing would not result in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each subsidiary (either direct or
indirect) of the Company 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 conduct its business as
described in the 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
stated in the Registration Statement and the Prospectus, all of the
issued and outstanding shares of capital stock of each subsidiary of
the Company 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 such subsidiary was issued
in violation of preemptive or other similar rights of any
securityholder of such subsidiary. The only subsidiaries of the
Company are (a) the subsidiaries listed on Exhibit 21 incorporated by
reference in the Registration Statement and (b) certain other
subsidiaries which, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(viii) CAPITALIZATION. If applicable, the authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus as of the date specified therein under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus). 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; 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.
(ix) AUTHORIZATION, ETC., OF THIS AGREEMENT, THE INDENTURE AND THE
NOTES. This Agreement has been duly authorized, executed and delivered
by the Company; the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally, (2) general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), (3) requirements that a claim with
respect to any debt securities
7
<PAGE> 10
issued under the Indenture that are payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (4)
governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes have been duly
authorized by the Company for offer, sale, issuance and delivery
pursuant to this Agreement and, when issued, authenticated and
delivered in the manner provided for in the Indenture and delivered
against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally, (2) general equitable principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law), (3) requirements that a claim with respect to any
Notes payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (4) governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Notes will be substantially in a form previously certified
to the Agents and contemplated by the Indenture; and each holder of
Notes will be entitled to the benefits of the Indenture.
(x) DESCRIPTIONS OF THE INDENTURE AND THE NOTES. The Indenture and
the Notes conform and will conform in all material respects to the
statements relating thereto contained in the Prospectus and are
substantially in the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any of
its subsidiaries is in violation of the provisions 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 of its subsidiaries 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, the Notes and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions
contemplated by the Prospectus, the consummation of the transactions
contemplated in the Prospectus (including the issuance and sale of the
Notes and the use of proceeds therefrom as described in the Prospectus
under the caption "Use of Proceeds") and the compliance by the Company
with its obligations hereunder and under the Indenture, the Notes and
such other agreements or instruments have been duly authorized by all
necessary corporate action and do not and will not, whether with
8
<PAGE> 11
or without the giving of notice or the 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 of its subsidiaries 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 of its
subsidiaries 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 of its subsidiaries 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 of its subsidiaries.
(xii) ABSENCE OF LABOR DISPUTES. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, which, in either case, may reasonably be
expected to result in a Material Adverse Effect.
(xiii) 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 of its subsidiaries which is required to be disclosed
in the Registration Statement and the Prospectus (other than as stated
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 assets, properties or operations
thereof, the performance by the Company of its obligations under this
Agreement, the Indenture and the Notes or the consummation of the
transactions contemplated in the Prospectus; and the aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents which
are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed
as required.
(xv) NO STABILIZATION OR MANIPULATION. Neither the Company nor any of
its subsidiaries has taken or will take, directly or indirectly, any
action designed to,
9
<PAGE> 12
or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes.
(xvi) 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 or quasi-governmental agency (including the Federal Home Loan
Mortgage Corporation ("FHLMC"), Fannie Mae (formerly known as the
Federal National Mortgage Association), the Government National
Mortgage Association ("GNMA"), the Federal Housing Administration
("FHA") and the Veterans Administration ("VA")) is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Notes hereunder or the consummation of the transactions contemplated
by this Agreement, except such as have been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations or the
securities or "blue sky" laws of the various states.
(xvii) 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 or
quasi-governmental agencies or bodies (including FHLMC, Fannie Mae,
GNMA, FHA and VA) necessary to conduct the business now operated by
them, except where the failure so to possess such Governmental
Licenses would not, singly or in the aggregate, have a Material
Adverse Effect; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, 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.
(xviii) TITLE TO PROPERTY. The Company and its subsidiaries have good
and marketable title to all properties and assets described in the
Prospectus as owned by the Company and its subsidiaries, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement and the Prospectus or (B) those
which do not, singly or in the aggregate, materially affect the value
of such property or asset and do not interfere with the use made and
proposed to be made of such property or asset 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 or assets described in the Prospectus, are in full
10
<PAGE> 13
force and effect, and neither the Company nor any of its subsidiaries
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 of its
subsidiaries under any of such leases or subleases, 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.
(xix) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the 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.
(xxi) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
11
<PAGE> 14
(xxii) RATINGS. The Medium-Term Note Program under which the Notes are
issued (the "Program"), as well as the Notes, are rated [BAA2] by
Moody's Investors Service, Inc. and [BBB] by Standard & Poor's Ratings
Service, or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a) hereof.
(xxiii) INTERNAL ACCOUNTING CONTROLS. The Company and its subsidiaries
each maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general and specific authorization, (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general and specific authorization, and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Company and its
subsidiaries have not made, and, to the knowledge of the Company, no
employee or agent of the Company or any of its subsidiaries has made,
any payment of the Company's or any of its subsidiaries' funds or
received or retained any funds in violation of any applicable law,
regulation or rule or that would be required to be disclosed in the
Prospectus.
(xxiv) 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, software,
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.
(b) ADDITIONAL CERTIFICATION. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
12
<PAGE> 15
(a) PURCHASES AS PRINCIPAL. Purchases of Notes from the Company by the
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes from
the Company by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the officers' certificate, opinion of counsel and
comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Notes from the Company as principal and one
or more of such Agents shall fail at the relevant Settlement Date to purchase
the Notes which it or they are obligated to purchase (the "Defaulted Notes"),
then the nondefaulting Agents shall have the right, within 24 hours thereafter,
to make arrangements for one of them or one or more other Agents or underwriters
to purchase all, but not less than all, of the Defaulted Notes in such amounts
as may be agreed upon and upon the terms herein set forth; provided, however,
that if such arrangements shall not have been completed within such 24-hour
period, then:
(A) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on such Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(B) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of Notes to be so purchased by all
of such Agents on such Settlement Date, such agreement shall terminate
without liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the relevant Settlement
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
13
<PAGE> 16
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
shall be agreed upon from time to time among the Company, the Agents and the
Trustee. The Agents and the Company agree to perform, and the Company agrees to
cause the Trustee to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 4(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Agents immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Notes for offering
14
<PAGE> 17
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes, or (v) any change in the rating assigned
by any nationally recognized statistical rating organization to the Program or
any debt securities (including the Notes) of the Company, or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of the Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities. 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
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 Agents advance notice
of its intention to file or prepare any additional registration statement with
respect to the registration of additional Notes, any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any amendment
or supplement to the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus (other than an amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish to the Agents copies of any such document a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file any
such document to which the Agents or counsel for the Agents shall reasonably
object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or will
deliver to each Agent and counsel for the Agents, without charge, signed and
conformed 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 and conformed copies of all consents and
certificates of experts. The Registration Statement and each amendment thereto
furnished to the Agents will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company will deliver to each Agent,
without charge, as many copies of each preliminary prospectus as such Agent may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each Agent,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Agent may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the Agents
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Notes as contemplated in this Agreement and in the
Prospectus. If at any time when a
15
<PAGE> 18
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Agents or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements 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 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 4(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Agents such number of copies of such amendment or supplement as
the Agents may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Agents may designate and to maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
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 Notes
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 as long as may be required for the distribution of the Notes.
(g) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used.
(h) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (o) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an 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
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to
16
<PAGE> 19
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company shall give immediate notice, confirmed in writing, to the Agents to
cease the solicitation of offers for the purchase of Notes in their capacity as
agents and to cease sales of any Notes they may then own as principal, and the
Company will promptly prepare and file with the Commission, subject to Section
4(b) hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements, and the Company will furnish to the Agents,
without charge, such number of copies of such amendment or supplement as the
Agents may reasonably request. In addition, the Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of each offering of Notes.
(i) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (o) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
the Agents, confirmed in writing, and shall cause the Prospectus to be amended
or supplemented to include financial information with respect thereto and
corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(j) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (o) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include such audited consolidated financial
statements and the report or reports, and consent or consents to such inclusion,
of the independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an understanding of such
consolidated financial statements or as shall be required by the 1933 Act or the
1933 Act Regulations.
(k) 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 and Rule 158 of the 1933 Act Regulations.
(l) 1940 ACT. The Company will not be or become an "investment company" or
an entity "controlled" by an "investment company" as such terms are defined in
the 1940 Act.
(m) USE OF PROCEEDS. The Company will use the net proceeds received by it
from the issuance and sale of the Notes in the manner specified in the
Prospectus under the caption "Use of Proceeds."
17
<PAGE> 20
(n) RESTRICTION ON OFFERS AND SALES OF NOTES. Unless otherwise agreed upon
between one or more Agents acting as principal and the Company, between the date
of the agreement by such Agent(s) to purchase the related Notes from the Company
and the Settlement Date with respect thereto, the Company will not, without the
prior written consent of such Agent(s), issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, any debt securities
of the Company (other than the Notes that are to be sold pursuant to such
agreement or commercial paper in the ordinary course of business).
(o) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be required
to comply with the provisions of subsections (h), (i) or (j) of this Section 4
during any period from the time (i) the Agents shall have suspended solicitation
of offers for the purchase of Notes in their capacity as agents pursuant to a
request from the Company and (ii) no Agent shall then hold any Notes purchased
from the Company as principal, as the case may be, until the time the Company
shall determine that solicitation of offers for the purchase of Notes should be
resumed or an Agent shall subsequently purchase Notes from the Company as
principal.
(p) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file, and provide to the Agents a reasonable amount of time prior to such
filing, all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods prescribed by the 1934 Act and the rules and
regulations of the Commission thereunder.
SECTION 5. CONDITIONS OF AGENTS' OBLIGATIONS.
The obligations of one or more Agents to purchase Notes from the Company as
principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through an Agent as
an agent of the Company, will be subject to the accuracy of the representations
and warranties on the part of the Company herein contained or contained in any
certificate of an officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance and observance by the
Company of its covenants and other obligations hereunder, and to the following
additional conditions precedent:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement 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 Agents. A prospectus containing the
Rule 430A Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements of
Rule 430A) or, if the Company has elected to rely upon Rule 434, a Term Sheet
shall have been filed with the Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY. On the date hereof, the Agents shall
have received the favorable opinion, dated as of the date hereof, of Hutchins,
Wheeler & Dittmar, A
18
<PAGE> 21
Professional Corporation, counsel for the Company, in form and substance
satisfactory to counsel for the Agents, together with signed or reproduced
copies of such letter for each of the other Agents, to the effect set forth in
Exhibit B-1 hereto and to such further effect as counsel to the Agents may
reasonably request. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other documents relating to legal opinions, including, without limitation,
the Legal Opinion Accord of the ABA Section of Business Law (1991). Such counsel
may 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.
(c) OPINION OF GENERAL COUNSEL FOR COMPANY. On the date hereof, the Agents
shall have received the favorable opinion, dated as of date hereof, of Robert J.
Jacobs, Executive Vice President, Secretary and General Counsel for the Company,
in form and substance satisfactory to counsel for the Agents, together with
signed or reproduced copies of such letter for each of the other Agents, to the
effect set forth in Exhibit B-2 hereto and to such further effect as counsel to
the Agents may reasonably request. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other documents relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
Such counsel may state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
(d) OPINION OF COUNSEL FOR AGENTS. On the date hereof, the Agents shall
have received the favorable opinion, dated as of date hereof, of Brown & Wood
LLP, counsel for the Agents, together with signed or reproduced copies of such
letter for each of the other Agents. 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, 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 Agents. 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.
(e) OFFICERS' CERTIFICATE. On the date hereof, (A) the Prospectus, as it
may then be amended or supplemented, shall not contain any untrue statement of a
material fact or any 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; (B) there shall not have been, since the respective
dates as of which information is given in the Prospectus, 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; (C)
neither the Company nor any of its subsidiaries shall have received any
communication from any regulatory, governmental or quasi-governmental authority
or agency (including FHLMC, Fannie Mae, GNMA, FHA and VA) which is material and
adverse to the business prospects of the Company or its subsidiaries; (D) no
action, suit, proceeding at law or in equity shall be pending or, to the
knowledge of the Company, threatened, against the Company or any of its
subsidiaries before or by any government, governmental instrumentality or court,
domestic or foreign, that could result in any
19
<PAGE> 22
Material Adverse Effect other than as set forth in the Prospectus; (E) the
representations and warranties in Section 2(a) hereof shall be true and correct
with the same force and effect as though expressly made at and as of the date
hereof; (F) the Company shall have complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
hereof; and (G) 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; and the
Representatives shall have received a certificate of the Chief Executive Officer
and the Chief Financial Officer of the Company, dated as of the date hereof, to
such effect.
(f) ACCOUNTANTS' COMFORT LETTERS. At the time of the execution of this
Agreement, the Agents shall have received from each of KPMG LLP and Arthur
Andersen LLP a letter dated the date hereof, in form and substance satisfactory
to the Agents, together with signed or reproduced copies of such letter for each
of the other Agents and to such further effect as counsel to the Agents may
reasonably request, and containing statements and information of the type
ordinarily included in accountants' "comfort letters" to agents with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(g) ADDITIONAL DOCUMENTS. On the date hereof, counsel for the Agents 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 Notes 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 Notes as herein contemplated shall be satisfactory
in form and substance to the Agents and counsel for the Agents.
(h) TERMINATION OF AGREEMENT. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the applicable Agent or Agents by notice to the
Company at any time and any such termination shall be without liability of any
party to any other party except as provided in Section 10 hereof and except that
Sections 8, 9, 11, 14 and 15 hereof shall survive any such termination and
remain in full force and effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT.
Delivery of Notes sold through an Agent as an agent of the Company shall be
made by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, such Agent shall promptly notify the Company and
deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
20
<PAGE> 23
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company further covenants and agrees with each Agent as follows:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent(s) or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as though made at
and as of each such time (it being understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished to the Agent(s), forthwith a certificate dated
the date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(e) hereof which were last
furnished to the Agents are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(e) hereof, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate (it being understood that, in the case of clause (ii) above,
any such certificate shall also include a certification that 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 since the date of the agreement by
such Agent(s) to purchase Notes from the Company as principal).
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not
21
<PAGE> 24
previously certified to the Agents by the Company, the Company shall furnish or
cause to be furnished forthwith to the Agent(s) and to counsel to the Agents (1)
the written opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation,
counsel to the Company, or other counsel satisfactory to the Agent(s), and (2)
the written opinion of Robert J. Jacobs, Executive Vice President, Secretary and
General Counsel for the Company, each dated the date of filing with the
Commission or the date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agent(s), of the same tenor as the opinions referred to in
Sections 5(b) and 5(c) hereof, respectively, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinions or, in lieu of such
opinions, counsel last furnishing such opinions to the Agent(s) shall each
furnish the Agent(s) with a letter substantially to the effect that the Agent(s)
may rely on such counsel's last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
one or more Agents as principal, the Company shall cause each of KPMG LLP and
Arthur Andersen LLP to furnish to the Agent(s) a letter, dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
satisfactory to the Agent(s), of the same tenor as the letter referred to in
Section 5(f) hereof but modified to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such letter.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent 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 an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, as applicable, 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 an untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), 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;
22
<PAGE> 25
(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 8(d) hereof) any 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 such Agent),
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 subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an 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 the Agents
expressly for use in the Registration Statement (or any amendment thereto),
including the relevant Rule 430A Information and Rule 434 Information, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The foregoing indemnity with respect to any untrue statement contained
in or any omission from a preliminary prospectus shall not inure to the benefit
of any Agent (or any person who controls such Agent within the meaning of
Section 15 of the 1933 Act) from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Notes that are the
subject thereof if the Company shall sustain the burden of proving that such
person was not sent or given a copy of the Prospectus (or any amendment or
supplement thereto) at or prior to the written confirmation of the sale of such
Notes to such person and the untrue statement contained in or the omission from
such preliminary prospectus was corrected in the Prospectus (or any amendment or
supplement thereto), unless such failure resulted from noncompliance by the
Company with its obligations hereunder to furnish the Agents with copies of the
Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Agent
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 Section 8(a) hereof, 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), including the relevant Rule 430A Information and Rule 434
Information, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
23
<PAGE> 26
(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 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable Agent(s)
(PROVIDED, that in the case of an action involving two or more Agents that shall
have purchased Notes from the Company in a syndicate as principals, the Agent
that acted as managing underwriter shall make such selection) and, in the case
of parties indemnified pursuant to Section 8(b) hereof, 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 8 or 9 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 8(a)(ii) effected without its written consent if (i) such settlement is
entered into more than sixty (60) 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 forty-five (45) 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 9. CONTRIBUTION.
If the indemnification provided for in Section 8 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
24
<PAGE> 27
benefits received by the Company, on the one hand, and the applicable Agent(s),
on the other hand, from the offering of the Notes that were the subject of the
claim for indemnification 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 the applicable Agent(s) 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
applicable Agent(s) on the other hand in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any 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 applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the applicable Agent(s) 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 9. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 9 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 any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable 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 9, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights
25
<PAGE> 28
to contribution as such Agent, 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. In
addition, in connection with an offering of Notes purchased from the Company by
two or more Agents as principal, the respective obligations of such Agents to
contribute pursuant to this Section 9 are several in proportion to the aggregate
principal amount of Notes that each such Agent has agreed to purchase from the
Company and not joint.
SECTION 10. PAYMENT 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, filing and delivery of the
Registration Statement (including financial statements and exhibits)
as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto
(including, without limitation, any Prospectus required to be
delivered pursuant to Section 4(3) of the 1933 Act);
(ii) The preparation, printing and delivery of this Agreement and the
Indenture;
(iii) The preparation, issuance and delivery of the Notes, including
any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form and the cost of obtaining CUSIP or other
identification numbers for the Notes;
(iv) The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or
exchange rate agent) and of the Trustee and its counsel;
(v) The reasonable fees and disbursements of counsel for the Agents
incurred in connection with the establishment of the Program and
incurred from time to time in connection with the transactions
contemplated hereby, unless otherwise agreed to between the Company
and the applicable Agent(s) and/or Additional Agent(s) pursuant to a
terms agreement with respect to such transactions;
(vi) The qualification of the Notes under securities laws in
accordance with the provisions of Section 4(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto;
(vii) The printing and delivery to the Agents of copies of each
preliminary prospectus and any amendments or supplements thereto;
26
<PAGE> 29
(viii) The preparation, printing and delivery to the Agents of copies
of the Blue Sky Survey and any supplement thereto;
(ix) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(x) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(xi) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Notes; and
(xii) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Agents in accordance with the provisions of Section 5 or Section 12(b)(i)
hereof, the Company shall reimburse the Agents for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Agents and the costs and expenses incurred in connection with the updating and
delivery of any Prospectus that may be required under the 1933 Act or the 1934
Act.
SECTION 11. 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 or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
or any controlling person of an Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any agreement
by one or more Agents to purchase Notes from the Company as principal) may be
terminated for any reason, at any time by either the Company or an Agent, as to
itself, upon the giving of prior written notice of such termination to the other
party hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, 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)
there has occurred any material adverse change in the financial markets
27
<PAGE> 30
in the United States or, if such Notes are denominated and/or payable in, or
indexed to, one or more foreign or composite currencies, in the international
financial markets, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development or event 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 such
Agent(s), impracticable to market such Notes or enforce contracts for the sale
of such Notes, or (iii) trading in any securities of the Company has been
suspended or limited by the Commission or a national securities exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or by the
relevant authorities in the country or countries of origin of any foreign or
composite currency in which such Notes are denominated and/or payable, or (v)
the rating assigned by any nationally recognized statistical rating organization
to the Program or any debt securities (including the Notes) of the Company as of
the date of such agreement shall have been lowered or withdrawn since that date
or if any such rating organization shall have publicly announced that it has
under surveillance or review its rating of the Program or any such debt
securities, or (vi) there shall have come to the attention of such Agent(s) any
facts that would cause such Agent(s) to believe that the Prospectus, at the time
it was required to be delivered to a purchaser of such Notes, included 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 existing
at the time of such delivery, not misleading.
(c) GENERAL. In the event of any such termination under paragraph (a) or
(b) of this Section, neither party will have any liability to the other party
hereto, except that (i) the Agents shall be entitled to any commissions earned
in accordance with the third paragraph of Section 3(b) hereof, (ii) if at the
time of termination (a) any Agent shall own any Notes purchased by it from the
Company as principal or (b) an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser or his agent
of such Notes relating thereto has not occurred, the covenants set forth in
Sections 4 and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Sections 4(e)
and 4(k) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. 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 Company shall be directed to it at:
7301 Baymeadows Way
Jacksonville, Florida 32256
Attention: President
28
<PAGE> 31
Facsimile: 904 281-3745
with copies to:
7301 Baymeadows Way
Jacksonville, Florida 32256
Attention: Robert J. Jacobs
Facsimile: 904 281-3745
Notices to any Agent shall be directed to such Agent as follows:
If to Merrill Lynch, at:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
4 World Financial Center
250 Vesey Street
New York, New York 10080
Attention: MTN Product Management
Facsimile: 212 449-2234
If to BancAmerica, at:
Banc of America Securities LLC
100 North Tryon Street
NC1-007-07-01
Charlotte, NC 28255
Attention: Medium-Term Note Desk
Facsimile: 704 388-9939
If to Chase, at:
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Facsimile: 212 834-6081
If to Deutsche Bank, at:
Deutsche Bank Securities Inc.
31 West 52nd Street
New York, New York 10019
29
<PAGE> 32
Attention:
Facsimile:
If to J.P. Morgan, at:
J.P. Morgan Securities Inc.
60 Wall Street, 5th Floor
New York, New York 10260
Attention: Transaction Execution Group
Facsimile: 212 648-5151
If to Warburg, at:
UBS Warburg LLC
677 Washington Boulevard
Stamford, CT 06901
Attention: Medium-Term Note Desk
Facsimile: 203 719-7319
SECTION 14. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the Agents
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 parties hereto and their respective successors and
the controlling persons, officers and directors referred to in Sections 8 and 9
hereof 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 parties hereto and their
respective successors, and said controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 15. GOVERNING LAW; FORUM.
---------------------
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN
CONNECTION WITH OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE
STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF
MANHATTAN, THE CITY OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 16. EFFECT OF HEADINGS.
30
<PAGE> 33
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
31
<PAGE> 34
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
HOMESIDE LENDING, INC.
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ___________________________________
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By: ___________________________________
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By: ___________________________________
Authorized Signatory
CHASE SECURITIES INC.
By: ___________________________________
Authorized Signatory
32
<PAGE> 35
J.P. MORGAN SECURITIES INC.
By: ___________________________________
Name:
Title:
UBS WARBURG LLC
By: ___________________________________
Authorized Signatory
1
<PAGE> 36
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
<S> <C>
From 9 months to less than 1 year................................... .125%
From 1 year to less than 18 months.................................. .150
From 18 months to less than 2 years................................. .200
From 2 years to less than 3 years................................... .250
From 3 years to less than 4 years................................... .350
From 4 years to less than 5 years................................... .450
From 5 years to less than 6 years................................... .500
From 6 years to less than 7 years................................... .550
From 7 years to less than 10 years.................................. .600
From 10 years to less than 15 years................................. .625
From 15 years to less than 20 years................................. .700
From 20 years to 30 years........................................... .750
Greater than 30 years............................................... (1)
</TABLE>
----------------
(1) As agreed to by the Company and the applicable Agent at the time of sale.
2
<PAGE> 37
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
~ LIBOR Reuters Page:
~ LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
~ Weekly Average
~ Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
A-1
<PAGE> 38
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letters pursuant to Section 7(d) of the Distribution Agreement.
A-2
<PAGE> 39
EXHIBIT B-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
1. The Company has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus, and the Company has corporate power and authority to
issue the Notes and to enter into and perform its obligations under
the Distribution Agreement, the Indenture and the Notes.
2. If applicable, the authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under the
caption "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 arising by operation of law, or under the charter or by-laws
of the Company, or under any agreement known to us to which the
Company is a party.
3. The Distribution Agreement has been duly authorized, executed and
delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, (B) general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), (C)
requirements that a claim with respect to any debt securities issued
under the Indenture that are payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (D)
governmental authority to limit, delay or prohibit the making of
payments outside the United States.
5. The Indenture has been duly qualified under the 1939 Act.
6. The Notes have been duly authorized by the Company for offer,
sale, issuance and delivery pursuant to the Distribution Agreement
and, when issued, authenticated and delivered in the manner provided
for in the Indenture and delivered against payment of the
consideration therefor, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by
B-1-1
<PAGE> 40
(A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally,
(B) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), (C) requirements that
a claim with respect to any Notes payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (D)
governmental authority to limit, delay or prohibit the making of
payments outside the United States; and the Notes, in the forms
certified on the date hereof, are in the form contemplated by, and
each registered holder thereof is entitled to the benefits of, the
Indenture.
7. The Indenture and the Notes, in the forms certified on the date
hereof, conform in all material respects to the statements relating
thereto contained in the Prospectus and are in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
8. The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
9. The Registration Statement, including any Rule 462(b)
Registration Statement and the relevant Rule 434 Information, as
applicable, the Prospectus, excluding the documents incorporated by
reference therein, and each amendment or supplement to the
Registration Statement and Prospectus as of their respective effective
or issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we
express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
10. The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we express no opinion), when
they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations.
11. If Rule 434 has been relied upon, the Prospectus was not
"materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it
became effective.
B-1-2
<PAGE> 41
12. To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Company or any of its subsidiaries is a party, or to which the
property of the Company or any of its subsidiaries is subject, before
or brought by any court or governmental or quasi-governmental agency
or body, domestic or foreign, 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 the
Distribution Agreement or the performance by the Company of its
obligations thereunder.
13. The information in the Prospectus under "Description of Notes"
and "Certain United States Federal Income Tax Considerations," or any
caption purporting to cover such matters, the information in the
Registration Statement under Item 15, to the extent that such
information constitutes matters of law, summaries of legal matters,
the Company's charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
14. To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that
are not described as required.
15. All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party
are accurate in all material respects; to the best of our knowledge,
there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
16. To the best of our knowledge, the Company is not in violation of
its charter or by-laws and no default by the Company exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
17. All necessary corporate action by the Company has been taken in
connection with, and no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental or quasi-governmental authority or agency,
domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need
express no opinion), is necessary or required for, the due
authorization, execution, delivery and performance by the Company of
its obligations under the
B-1-3
<PAGE> 42
Distribution Agreement, the Indenture or the Notes or for the
offering, issuance or sale of the Notes or the consummation of the
transactions contemplated in the Prospectus.
18. The execution, delivery and performance of the Distribution
Agreement, the Indenture and the Notes and any other agreement or
instrument entered into or issued or to be entered into or issued by
the Company in connection with the transactions contemplated in the
Prospectus, the consummation of the transactions contemplated in the
Prospectus (including the issuance and sale of the Notes and the use
of the proceeds therefrom as described in the Prospectus) and the
compliance by the Company with its obligations thereunder do not and
will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 2(a)(xi) of the Distribution
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument,
known to us, to which the Company is a party or by which it may be
bound, or to which any of the property or assets of the Company is
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have 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 applicable
law, statute, rule, regulation, judgment, order, writ or decree, known
to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of
its respective properties, assets or operations.
19. To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act except as disclosed in
the Prospectus.
20. The Company is not, and upon the issuance and sale of the Notes
and the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the 1940 Act.
21. The Notes, in the forms certified on the date hereof, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act and the Commodity Exchange Act Regulations.
We have participated in the preparation of the Registration Statement and
the Prospectus and in conferences and telephone conversations with officers and
representatives of the Company, representatives of Arthur Andersen LLP and KPMG
LLP, the independent public accountants for the Company and certain of its
subsidiaries, your representatives and representatives of your counsel, during
which conferences and conversations the contents of the Registration Statement
and the Prospectus and related matters were discussed. Except as set
B-1-4
<PAGE> 43
forth in paragraph 13 above, we have not undertaken to verify independently the
statements made and information provided to us in the documents and conferences
referred to above, but nevertheless we hereby confirm to you that nothing has
come to our attention that would lead us to believe that the Registration
Statement or any amendment thereto, including the relevant Rule 434 Information,
(if applicable), (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and for the Form T-1, as to which we need make no statement), at the
time such Registration Statement or any such amendment became effective (or, if
an Annual Report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement or any such
amendment, at the time of the most recent such filing) or at the date of any
agreement of the applicable Agent(s) to purchase Notes from the Company as
principal, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the date hereof, included or includes any untrue statement of a material
fact or omitted or omits 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.
B-1-5
<PAGE> 44
EXHIBIT B-2
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
1. The Company is a corporation duly incorporated, validly existing
and in corporate good standing under the laws of the State of Florida.
2. The Company has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus, and the Company has corporate power and authority to
issue the Notes and to enter into and perform its obligations under
the Distribution Agreement, the Indenture and the Notes.
3. If applicable, the authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under the
caption "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 arising by operation of law, or under the charter or by-laws
of the Company, or under any agreement known to us to which the
Company is a party.
4. Each subsidiary of the Company is a corporation duly
incorporated, validly existing and in corporate 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 Prospectus. Each of the Company and
its subsidiaries is duly qualified as a foreign corporation to
transact business and is in good standing as a foreign corporation 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.
5. To the best of my knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the
Company or any of its subsidiaries is a party, or to which the
property of the Company or any of its subsidiaries is subject, before
or brought by any court or governmental or quasi-governmental agency
or body, domestic or foreign, 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 the
Distribution Agreement, the Indenture or the Notes or the performance
by the Company of its obligations thereunder.
B-2-1
<PAGE> 45
6. The information in the Prospectus under "Risk
Factors--Regulation, Possible Changes and Related Matters,"
"Business--Properties," "Business --Regulation,"
"Business--Litigation" to the extent that it constitutes matters of
law, summaries of legal matters or legal conclusions, has been
reviewed by me and is correct in all material respects.
7. To the best of my knowledge, none of the Company and or any of
its subsidiaries is in violation of its charter or by-laws and no
default by the Company or any of its subsidiaries exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement which would have a Material Adverse Effect.
8. All necessary corporate action by the Company has been taken in
connection with, and no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental or quasi-governmental authority or agency,
domestic or foreign (other than under the 1933 Act and the 1933 Act
Regulations, or as may be required under the securities or blue sky
laws of the various states, as to which, in each case, I need express
no opinion) is necessary or required for, the due authorization,
execution and delivery of the Distribution Agreement, the Indenture or
the Notes or for the offering, issuance or sale of the Notes.
9. The execution, delivery and performance of the Distribution
Agreement, the Indenture and the Notes and the consummation of the
transactions contemplated herein, therein and in the Registration
Statement (including the issuance and sale of the Notes and the use of
the proceeds from the sale of the Notes as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company
with its obligations under the Distribution Agreement, the Indenture
and the Notes do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section
1(a)(x) of the Distribution Agreement) under or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to
me, to which the Company or any of its subsidiaries is a party or by
which any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have 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 of its subsidiaries, or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to me (other than under the 1933 Act and the 1933 Act
Regulations or under the securities or blue sky
B-2-2
<PAGE> 46
laws of the various states, to which, in each case, I express no
opinion), of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company, any of its
subsidiaries or any of their respective properties, assets or
operations.
I have read the Registration Statement and the Prospectus. I did not
independently verify the accuracy or completeness of the statements made in the
Registration Statement and the Prospectus and I cannot and do not assume
responsibility for or pass on the accuracy and completeness of such statements,
except as set forth in paragraph 6 above and except insofar as such statements
relate to me. Subject to the foregoing, I hereby confirm to you that nothing has
come to my attention that would lead me to believe that the Registration
Statement or any amendment thereto, including the relevant Rule 434 Information
(if applicable), (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which I need make no statement), at the time such Registration
Statement or any such amendment became effective (or, if an Annual Report on
Form 10-K has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement or any such amendment, at the time
of the most recent such filing) or at the date of any agreement of the
applicable Agent(s) to purchase Notes from the Company as principal, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto (except
for financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which I need make
no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the date hereof, included or
includes any untrue statement of a material fact or omitted or omits 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.
B-2-3
