COMMERCIAL PAPER DEALER AGREEMENT [4(2) Program] among Procter & Gamble International Funding S.C.A., as Issuer The Procter & Gamble Company, as Guarantor and _______________, as Dealer
[4(2)
Program]
among
Procter
& Xxxxxx International Funding S.C.A., as Issuer
The
Procter & Xxxxxx Company, as Guarantor
and
_______________,
as Dealer
Concerning
Notes to be issued pursuant to an Issuing and Paying Agent Agreement dated
as of
____________ among the Issuer, the Guarantor, and Citibank, N.A., as Issuing
and
Paying Agent
Dated
as of
_________________
[4(2)
Program]
This
agreement (the “Agreement”) sets forth the understandings among the Issuer, the
Guarantor, and the Dealer, each named on the cover page hereof, in connection
with the issuance and sale by the Issuer of its short-term promissory notes
(the
“Notes”).
The
Guarantor has agreed unconditionally and irrevocably to guarantee payment
in
full of the principal of and interest (if any) on all such Notes of the
Issuer,
pursuant to a guarantee dated the date hereof, in the form of Exhibit D
hereto
(the “Guarantee”).
Certain
terms used in this Agreement are defined in Section 6 hereof.
The
Addendum to this Agreement, and any Annexes or Exhibits described in this
Agreement or such Addendum, are hereby incorporated into this Agreement
and made
fully a part hereof.
| 1. |
Offers,
Sales and Resales of Notes.
|
|
1.1
|
While
(i) the Issuer has and shall have no obligation to sell the Notes
to the
Dealer, and (ii) the Dealer has and shall have no obligation
to purchase
the Notes from the Issuer or to arrange any sale of the Notes
for the
account of the Issuer, the parties hereto agree that in any case
where the
Dealer purchases Notes from the Issuer, or arranges for the sale
of Notes
by the Issuer, such Notes will be purchased or sold by the Dealer
in
reliance on the representations, warranties, covenants and agreements
of
the Issuer and the Guarantor contained herein or made pursuant
hereto and
on the terms and conditions and in the manner provided
herein.
|
1.2
So
long
as this Agreement shall remain in effect, and in addition to the limitations
contained in Section 1.7 hereof, neither the Issuer nor the Guarantor shall,
without the consent of the Dealer, offer, solicit or accept offers to purchase,
or sell, any Notes except (a) in transactions with one or more dealers
which may
from time to time after the date hereof become dealers with respect to
the Notes
by executing with the Issuer and the Guarantor one or more agreements which
contain provisions substantially identical to those contained in Section
1 of
this Agreement, of which the Issuer and the Guarantor hereby undertakes
to
provide the Dealer prompt notice or (b) in transactions with the other
dealers
listed on the Addendum hereto, which are executing agreements with the
Issuer
and the Guarantor which contain provisions substantially identical to Section
1
of this Agreement contemporaneously herewith. In no event shall the Issuer
or
the Guarantor offer, solicit or accept offers to purchase, or sell, any
Notes
directly on its own behalf in transactions with persons other than
broker-dealers as specifically permitted in this Section 1.2.
1.3
The
Notes
shall be in a minimum denomination of U.S.$250,000 or integral multiples
of
U.S.$1,000 in excess thereof, will bear such interest rates, if interest
bearing, or will be sold at such discount from their face amounts, as shall
be
agreed upon by the Dealer and the Issuer, shall have a maturity not exceeding
397 days from the date of issuance and may have such terms as are specified
in
Exhibit C hereto or the Private Placement Memorandum. The Notes shall not
contain any provision for extension, renewal, or automatic
“rollover.”
1.4
The
authentication and issuance of, and payment for, the Notes shall be effected
in
accordance with the Issuing and Paying Agent Agreement, and the Notes shall
be
either individual physical certificates or book-entry notes evidenced by
one or
more master notes (each, a “Master Note”) registered in the name of The
Depository Trust Company (“DTC”) or its nominee, in the form or forms annexed to
the Issuing and Paying Agent Agreement.
1.5
If
the
Issuer and the Dealer shall agree on the terms of the purchase of any Note
by
the Dealer (including, but not limited to, agreement with respect to the
date of
issue, purchase price, principal amount, maturity and interest rate or
interest
rate index and margin (in the case of interest-bearing Notes) or discount
thereof (in the case of Notes issued on a discount basis), and appropriate
compensation for the Dealer’s services hereunder) pursuant to this Agreement,
the Issuer shall cause such Note to be issued and delivered in accordance
with
the terms of the Issuing and Paying Agent Agreement and payment for such
Note
shall be made by the purchaser thereof to the Issuing and Paying Agent,
for the
account of the Issuer.
1.6
The
Dealer, the Issuer and the Guarantor hereby establish and agree to observe
the
following procedures in connection with offers, sales and subsequent resales
or
other transfers of the Notes. In addition to the following, assuming compliance
by the Issuer and the Guarantor with their respective representations and
covenants hereunder, the Issuer and the Guarantor shall not be responsible
for
securities laws compliance of sales or solicitations made by the Dealer
or any
of the dealers with respect to the Notes.
| (a) |
Offers
and sales of the Notes by the Dealer shall be made only to (i)
investors
reasonably believed by the Dealer to be Qualified Institutional
Buyers
(“QIBs”) or Institutional Accredited Investors and (ii) non-bank
fiduciaries or agents that will be purchasing Notes for one or
more
accounts, each of which is reasonably believed by the Dealer to
be an
Institutional Accredited Investor, and in the case of clauses (i)
and
(ii), in a manner which would not cause a violation of Regulation
T and
the interpretations thereunder.
|
| (b) |
Resales
and other transfers of the Notes by the holders thereof shall be
made only
in accordance with the restrictions in the legend described in
clause (e)
below.
|
| (c) |
No
general solicitation or general advertising shall be used in connection
with the offering of the Notes. Without limiting the generality
of the
foregoing, without the prior written approval of the Dealer, neither
the
Issuer nor the Guarantor shall issue any press release or place
or publish
any “tombstone” or other advertisement relating to the
Notes.
|
| (d) |
No
sale of Notes to any one purchaser shall be for less than U.S.$250,000
principal or face amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a non-bank fiduciary
acting
on behalf of others, each person for whom such purchaser is acting
must
purchase at least U.S.$250,000 principal or face amount of
Notes.
|
| (e) |
Offers
and sales of the Notes by the Issuer shall be made in accordance
with
Section 4(2) under the Securities Act, and shall be subject to
the
restrictions described in the legend appearing on Exhibit A hereto.
A
legend substantially to the effect of such Exhibit A shall appear
as part
of the Private Placement Memorandum used in connection with offers
and
sales of Notes hereunder, as well as on each individual certificate
representing a Note and each Master Note representing book-entry
Notes
offered and sold pursuant to this Agreement. For the avoidance
of doubt,
the Dealer will not act as an agent for the Issuer, the Guarantor
or any
of its affiliates with respect to purchases of Notes by the Guarantor
or
any of its affiliates, and in no case will the Dealer intentionally
grant
a preference to the Guarantor or any of its affiliates with respect
to the
purchase of Notes from the Dealer hereunder, which preference is
not
generally provided to the Dealer’s other money market customers of
substantially the same sophistication and investment history, including
in
the event of an oversubscription.
|
| (f) |
The
Dealer shall furnish or shall have furnished to each purchaser
of Notes
for which it has acted as the Dealer a copy of the then-current
Private
Placement Memorandum unless such purchaser has previously received
a copy
of the Private Placement Memorandum as then in effect. The Private
Placement Memorandum shall expressly state that any person to whom
Notes
are offered shall have an opportunity to ask questions of, and
receive
information from, the Issuer, the Guarantor and the Dealer regarding
this
offering and shall provide the names, addresses and telephone numbers
of
the appropriate contacts for such questions.
|
| (g) |
The
Issuer and the Guarantor, jointly and severally, agree, for the
benefit of
the Dealer and each of the holders and prospective purchasers from
time to
time of the Notes that, if at any time the Guarantor shall not
be subject
to Section 13 or 15(d) of the Exchange Act, the Guarantor will
furnish,
upon request and at its expense, to the Dealer and to holders and
prospective purchasers of Notes information concerning the Guarantor
required by Rule 144A(d)(4)(i) in compliance with Rule
144A(d).
|
| (h) |
In
the event that any Note offered or to be offered by the Dealer
would be
ineligible for resale under Rule 144A as a result of actions taken
by the
Issuer, the Issuer shall immediately notify the Dealer (by telephone,
confirmed in writing) of such fact and shall promptly prepare and
deliver
to the Dealer an amendment or supplement to the Private Placement
Memorandum describing the Notes that are ineligible, the reason
for such
ineligibility and any other relevant information relating
thereto.
|
| (i) |
The
Issuer and the Guarantor represent that neither the Issuer nor
the
Guarantor is currently issuing commercial paper in the United States
market in reliance upon the exemption provided by Section 3(a)(3)
of the
Securities Act. The Issuer and the Guarantor agree that, if they
shall
issue commercial paper after the date hereof in reliance upon such
exemption (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed
in a separate account; (b) the Issuer and the Guarantor will institute
appropriate corporate procedures to ensure that the offers and
sales of
notes issued by the Issuer pursuant to the Section 3(a)(3) exemption
are
not integrated with offerings and sales of Notes hereunder; and
(c) the
Issuer and the Guarantor will comply with each of the requirements
of
Section 3(a)(3) of the Securities Act in selling commercial paper
or other
short-term debt securities other than the Notes in the United
States.
|
|
(j)
|
The
Dealer acknowledges that no action has been or will be taken
by the
Issuer, the Guarantor or the Dealer that would permit a public
offering of
the Notes or possession or distribution of the Private Placement
Memorandum or other offering material relating to the Notes in
any
jurisdiction where action for that purpose is
required.
|
|
(k)
|
The
Dealer acknowledges and agrees that it has read, reviewed and
understands
the Blue Sky Memorandum, dated _____________, with respect to
the
securities or Blue Sky laws of the various states in connection
with the
offer and sale of the Notes, which memorandum has been prepared
by Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, special counsel to the Issuer
and the Guarantor.
|
|
(l)
|
To
the extent that any Notes are offered or sold outside the United
States,
the Dealer represents that it will (i) observe all applicable
securities
laws and regulations in each jurisdiction outside the United
States in or
from which it may offer or sell Notes, except to the extent that
a failure
to do so relates to or results from the violation or breach of
a
representation or covenant made by the Issuer or the Guarantor
hereunder
and (ii) obtain any consent, approval or permission required
by it for the
offer or sale by the Dealer of the Notes under the securities
laws and
regulations in force in any jurisdiction outside the United States
to
which it is subject or in or from which it makes any offer or
sale, except
to the extent that a failure to do so relates to or results from
the
violation or breach of a representation or covenant made by the
Issuer or
the Guarantor hereunder.
|
|
1.7
|
Each
of the Issuer and the Guarantor hereby represents and warrants
to the
Dealer, in connection with offers, sales and resales of Notes,
as
follows:
|
|
(a)
|
The
Issuer and the Guarantor hereby confirm to the Dealer that (except
for any
offer or sale in connection with the Guarantor’s existing commercial paper
programs and/or as permitted by Section 1.6(i)) within the preceding
six
months neither the Issuer nor the Guarantor nor any person other
than the
Dealer or the other dealers referred to in Section 1.2 hereof
acting on
behalf of the Issuer or the Guarantor has offered or sold any
Notes, or
any substantially similar security of the Issuer or the Guarantor
(including, without limitation, medium-term notes issued by the
Issuer or
the Guarantor), to, or solicited offers to buy any such security
from, any
person other than the Dealer or the other dealers referred to
in Section
1.2 hereof. The Issuer and the Guarantor also agree that (except
for any
offer or sale in connection with the Guarantor’s existing commercial paper
programs and/or as permitted by Section 1.6(i)), as long as the
Notes are
being offered for sale by the Dealer and the other dealers referred
to in
Section 1.2 hereof as contemplated hereby and until at least
six months
after the offer of Notes hereunder has been terminated (it being
understood that for purposes of this Section 1.7(a) the date
of
termination shall be the date an offering of Notes is completed,
not the
date this Agreement is terminated), neither the Issuer nor the
Guarantor
nor any person other than the Dealer or the other dealers referred
to in
Section 1.2 hereof (except as contemplated by Section 1.2 hereof)
will
offer the Notes or any substantially similar security of the
Issuer for
sale to, or solicit offers to buy any such security from, any
person other
than the Dealer or the other dealers referred to in Section 1.2
hereof, it
being understood that such agreement is made with a view to bringing
the
offer and sale of the Notes within the exemption provided by
Section 4(2)
of the Securities Act and shall survive any termination of this
Agreement.
Each of the Issuer and the Guarantor hereby represents and warrants
that
it has not taken or omitted to take, and will not take or omit
to take,
any action that would cause the offering and sale of Notes hereunder
to be
integrated with any other offering of securities, whether such
offering is
made by the Issuer or the Guarantor or some other party or
parties.
|
|
(b)
|
The
Dealer acknowledges and agrees that the proceeds of the sale
of the Notes
are currently contemplated to be used for the purpose of buying,
carrying
or trading securities within the meaning of Regulation T and
the
interpretations thereunder by the Board of Governors of the Federal
Reserve System. In the event that the Dealer purchases Notes
and does not
resell such Notes on the day of such purchase, to the extent
necessary to
comply with Regulation T and the interpretations thereunder,
the Dealer
will sell such Notes either (i) only to offerees it reasonably
believes to
be QIBs or to QIBs it reasonably believes are acting for other
QIBs, in
each case in accordance with Rule 144A or (ii) in a manner which
would not
cause a violation of Regulation T and the interpretations
thereunder.
|
|
1.8
|
Neither
the Issuer nor any of its affiliates will be required hereunder
to
repurchase (or otherwise reacquire) any Notes from the
Dealer.
|
| 2. |
Representations
and Warranties of Issuer and the
Guarantor.
|
Each
of
the Issuer and the Guarantor represents and warrants as to itself
that:
| 2.1 |
The
Issuer is a société
en commandite par actions
duly organized and validly existing under the laws of the Grand
Duchy of
Luxembourg and has all the requisite power and authority to execute,
deliver and perform its obligations under the Notes, this Agreement
and
the Issuing and Paying Agent Agreement.
|
| 2.2 |
The
Guarantor is a corporation duly organized, validly existing and
in good
standing under the laws of the State of Ohio and has all the requisite
corporate power and authority to execute, deliver and perform its
obligations under the Guarantee, this Agreement and the Issuing
and Paying
Agent Agreement.
|
| 2.3 |
This
Agreement and the Issuing and Paying Agent Agreement have been
duly
authorized, executed and delivered by the Issuer and the Guarantor
and
constitute legal, valid and binding obligations of the Issuer and
the
Guarantor enforceable against the Issuer and the Guarantor in accordance
with their terms, subject to applicable bankruptcy, insolvency
reorganization, fraudulent conveyance and similar laws affecting
creditors’ rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought
in a
proceeding in equity or at law) and to potential unenforceability
of
indemnity and contribution provisions.
|
| 2.4 |
The
Notes have been duly authorized by the Issuer, and when issued
as provided
in the Issuing and Paying Agent Agreement, will be duly and validly
issued
and will constitute legal, valid and binding obligations of the
Issuer
enforceable against the Issuer in accordance with their terms,
subject to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance
and similar laws affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether
enforcement is sought in a proceeding in equity or at
law).
|
| 2.5 |
The
Guarantee has been duly authorized by the Guarantor, and when the
Notes
have been issued and delivered as provided in the Issuing and Paying
Agent
Agreement, will be duly executed and delivered by, and constitute
the
legal, valid and binding obligation of, the Guarantor, enforceable
against
the Guarantor in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
similar
laws affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether
enforcement is sought in a proceeding in equity or at
law).
|
| 2.6 |
The
offer and sale of the Notes and the Guarantee in the manner contemplated
hereby do not require registration of the Notes or the Guarantee
under the
Securities Act, pursuant to the exemption from registration contained
in
Section 4(2) thereof, and no indenture in respect of the Notes
or the
Guarantee is required to be qualified under the Trust Indenture
Act of
1939, as amended.
|
| 2.7 |
The
Notes and the Guarantee will rank at least pari passu with all
other
unsecured and unsubordinated indebtedness of the Issuer and the
Guarantor,
respectively.
|
| 2.8 |
Other
than filing with the SEC a notice on Form D in accordance with
Rule 503
under the Securities Act, if necessary, no consent or action of,
or filing
or registration with, any governmental or public regulatory body
or
authority, including the SEC, is required to authorize, or is otherwise
required in connection with the execution, delivery or performance
of,
this Agreement, the Notes, the Guarantee or the Issuing and Paying
Agent
Agreement, except as may be required by the securities or Blue
Sky laws of
the various states in connection with the offer and sale of the
Notes.
|
| 2.9 |
Neither
the execution and delivery of this Agreement and the Issuing and
Paying
Agent Agreement, nor the issuance of the Notes and the Guarantee
in
accordance with the Issuing and Paying Agent Agreement, nor the
fulfillment of or compliance with the terms and provisions hereof
or
thereof by the Issuer or the Guarantor, will (i) result in the
creation or
imposition of any mortgage, lien, charge or encumbrance of any
nature
whatsoever upon any of the properties or assets of the Issuer or
the
Guarantor, or (ii) violate or result in a breach or a default under
any of
the terms of their respective charter documents or by-laws, any
contract
or instrument to which the Issuer or the Guarantor is a party or
by which
it or its property is bound, or any law or regulation, or any order,
writ,
injunction or decree of any court or government instrumentality,
to which
the Issuer or the Guarantor is subject or by which it or its property
is
bound, which breach or default might have a material adverse effect
on the
condition (financial or otherwise), operations the Issuer or the
Guarantor
or the ability of the Issuer or the Guarantor to perform their
obligations
under this Agreement, the Notes, the Guarantee or the Issuing and
Paying
Agent Agreement.
|
| 2.10 |
There
is no litigation or governmental proceeding pending, or to the
knowledge
of the Issuer or the Guarantor threatened, against or affecting
the Issuer
or the Guarantor or any of their respective subsidiaries which
would be
reasonably likely to result in a material adverse change in the
condition
(financial or otherwise), operations of the Issuer or the Guarantor
or the
ability of the Issuer or the Guarantor to perform their obligations
under
this Agreement, the Notes, the Guarantee or the Issuing and Paying
Agent
Agreement, as the case may be.
|
| 2.11 |
Neither
the Issuer nor the Guarantor is an “investment company” within the meaning
of the Investment Company Act of 1940, as
amended.
|
| 2.12 |
Neither
the Private Placement Memorandum nor the Company Information contains
any
untrue statement of a material fact or omits to state a material
fact
required to be stated therein or necessary to make the statements
therein,
in light of the circumstances under which they were made, not misleading;
provided that this representation does not extend to Dealer Information
supplied by the Dealer or any other dealer with respect to the
Notes or
any omission of such information.
|
| 2.13 |
Each
(a) issuance and sale of Notes by the Issuer hereunder and (b)
amendment
or supplement of the Private Placement Memorandum shall be deemed
a
representation and warranty by each of the Issuer and the Guarantor
to the
Dealer, as of the date and time thereof, that, both before and
after
giving effect to such issuance and sale and after giving effect
to such
amendment or supplement, (i) the representations and warranties
given by
the Issuer and the Guarantor set forth in this Section 2 remain
true and
correct on and as of such date and time as if made on and as of
such date
and at such time, (ii) in the case of an issuance of Notes, the
Notes
being issued on such date have been duly and validly issued and
constitute
legal, valid and binding obligations of the Issuer, enforceable
against
the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
similar
laws affecting creditors’ rights generally and subject, as to
enforceability, to general principles of equity (regardless of
whether
enforcement is sought in a proceeding in equity or at law) and
are
guaranteed pursuant to the Guarantee, and (iii) in the case of
an issuance
or sale of Notes, since the date of the most recent Private Placement
Memorandum, there has been no material adverse change in the condition
(financial or otherwise), or operations of the Issuer or the Guarantor
which has not been disclosed to the Dealer in
writing.
|
2.14
Under
the
laws of Luxembourg, neither the Issuer nor any of its revenues, assets
or
properties have any right of immunity from service of process or from the
jurisdiction of competent courts of Luxembourg or the United States or
the State
of New York in connection with any suit, action or proceeding, attachment
prior
to judgment, attachment in aid of execution of a judgment or execution
of a
judgment or from any other legal process with respect to its obligations
under
this Agreement, the Issuing and Paying Agent Agreement or the
Notes.
2.15
The
Issuer is permitted to make all payments under this Agreement, the Issuing
and
Paying Agent Agreement and the Notes to holders of the Notes that are
non-residents of Luxembourg, free and clear of and without deduction or
withholding for or on account of any taxes or other governmental charges
imposed
by Luxembourg. There is no stamp or documentary tax or other charge imposed
by
any governmental agency having jurisdiction over the Issuer in connection
with
the execution, delivery, issuance, payment, performance, enforcement, or
introduction into evidence in a court of Luxembourg of this Agreement,
the
Issuing and Paying Agent Agreement or any Note.
2.16
The
choice of New York law to govern this Agreement, the Guarantee, the Issuing
and
Paying Agent Agreement and the Notes is, under the laws of Luxembourg,
a valid,
effective, and irrevocable choice of law, and the submission by the Issuer
to
the jurisdiction of the courts of the State of New York with regard to
this
Agreement is valid and binding under the laws of Luxembourg.
2.17
Any
final
judgment rendered by any court referred to in Section 7.3(a) in an action
to
enforce the obligations of the Issuer under this Agreement, the Issuing
and
Paying Agent Agreement or the Notes is capable of being enforced in the
courts
of Luxembourg.
|
2.18
|
As
a condition to the admissibility in evidence of this Agreement,
the
Guarantee, the Issuing and Paying Agent Agreement or the Notes
in the
courts of Luxembourg, it is not necessary that this Agreement,
the
Guarantee, the Issuing and Paying Agent Agreement or the Notes
be filed or
recorded with any court or other authority. If this Agreement,
the
Guarantee, the Issuing and Paying Agent Agreement or the Notes
were
produced in proceedings before a Luxembourg court, such court
may require
that all or part of this Agreement, the Guarantee, the Issuing
and Paying
Agent Agreement or the Notes, or any of the documents or agreements
referred to therein, be translated into French or German and
registration
of any such documents exhibited in any court proceedings or before
any
official authority (autorité
constituée)
in Luxembourg might be ordered, the registration tax being a
fixed rate of
12,- EUR or an ad valorem rate depending on the nature of the
registered
document.
|
| 3. |
Covenants
and Agreements of Issuer and the
Guarantor.
|
Each
of
the Issuer and the Guarantor covenants and agrees as to itself
that:
| 3.1 |
The
Issuer and the Guarantor will give the Dealer (i) prompt notice
(but in
any event prior to any subsequent issuance or sale of Notes hereunder)
of
any amendment to, modification of or waiver with respect to, the
Notes,
the Guarantee or the Issuing and Paying Agent Agreement, including
a
complete copy of any such amendment, modification or waiver and
(ii) not
less than five nor more than 25 days’ notice of any proposed redemption of
the Notes.
|
| 3.2 |
The
Issuer and the Guarantor shall, whenever there shall occur any
change
reasonably likely to result in a material adverse change in the
condition
(financial or otherwise) or operations of the Issuer or the Guarantor
or
the ability of the Issuer or Guarantor to perform their obligations
under
this Agreement, the Notes, the Guarantee or the Issuing and Paying
Agent
Agreement, as the case may be (including but not limited to any
downgrading or receipt of any notice of intended or potential downgrading
or any review for potential change in the rating accorded any of
the
Issuer’s or the Guarantor’s securities by any nationally recognized
statistical rating organization which has published a rating of
the
Notes), promptly, and in any event prior to any subsequent issuance
or
sale of Notes hereunder, notify the Dealer (by telephone, confirmed
in
writing) of such change, development or occurrence, or otherwise
make
publicly available information related to such change, development
or
occurrence in the ordinary course of their
business.
|
| 3.3 |
The
Issuer and the Guarantor shall from time to time furnish to the
Dealer
such information as the Dealer may reasonably request. Such information
shall be limited to any press releases or material provided by
the Issuer
or the Guarantor to any national securities exchange or rating
agency,
regarding (i) the operations and financial condition of the Issuer
and the
Guarantor, (ii) the due authorization and execution of the Notes
and the
Guarantee, (iii) the Issuer’s ability to pay the Notes as they mature and
(iv) the Guarantor’s ability to fulfill its obligations under the
Guarantee.
|
| 3.4 |
The
Issuer and the Guarantor, upon the request of the Dealer, will
endeavor to
take all such action as the Dealer may reasonably request to ensure
that
each offer and each sale of the Notes will comply with any applicable
state Blue Sky laws; provided, however, that neither the Issuer
nor the
Guarantor shall be obligated to file any general consent to service
of
process or to qualify as a foreign corporation or other entity
in any
jurisdiction in which it is not so qualified or subject itself
to taxation
in respect of doing business in any jurisdiction in which it is
not
otherwise so subject.
|
| 3.5 |
The
Issuer shall not issue or sell Notes hereunder until the Dealer
shall have
received (a) opinions of counsel to the Issuer and the Guarantor,
addressed to the Dealer, satisfactory in form and substance to
the Dealer,
(b) a copy of the executed Issuing and Paying Agent Agreement as
then in
effect, (c) a copy of the executed Guarantee, (d) a copy of the
resolutions adopted by the Boards of Directors of the Issuer and
the
Guarantor, satisfactory in form and substance to the Dealer and
certified
by the Manager, Director, Secretary or similar officer of the Issuer
and
the Guarantor, as the case may be, authorizing execution and delivery
by
the Issuer and the Guarantor of this Agreement, the Guarantee,
the Issuing
and Paying Agent Agreement and the Notes and consummation by the
Issuer
and the Guarantor of the transactions contemplated hereby and thereby,
(e)
prior to the issuance of any book-entry Notes represented by a
master note
registered in the name of DTC or its nominee, a copy of the executed
Letter of Representations among the Issuer, the Guarantor, the
Issuing and
Paying Agent and DTC and of the executed master note, (f) prior
to the
issuance of any Notes in physical form, a copy of such form (unless
attached to this Agreement or the Issuing and Paying Agent Agreement)
and
(g) such other certificates, opinions, letters and documents as
the Dealer
shall have reasonably requested.
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| 3.6 |
The
performance or compliance by the Issuer of any several obligation
of the
Guarantor under this Section 3 or any other Section of this Agreement
shall also be deemed to constitute performance or compliance, as
applicable, thereof by the Guarantor, and the performance or compliance
by
the Guarantor of any several obligations of the Issuer under this
Section
3 or any other Section of this Agreement shall also be deemed to
constitute performance or compliance, as applicable, thereof by
the
Issuer.
|
| 4. |
Disclosure.
|
| 4.1 |
The
Private Placement Memorandum and its contents (other than the Dealer
Information) shall be the sole responsibility of the Issuer and
the
Guarantor. The Private Placement Memorandum shall contain a statement
expressly offering an opportunity for each prospective purchaser
to ask
questions of, and receive answers from, the Issuer and the Guarantor
concerning the offering of Notes and to obtain relevant additional
information that the Issuer and the Guarantor possess or can acquire
without unreasonable effort or expense. The Dealer will not distribute
or
use any version of the Private Placement Memorandum, or any amendment
or
supplement thereto, that has not been previously approved by the
Issuer
and the Guarantor.
|
| 4.2 |
Each
of the Issuer and the Guarantor agrees to promptly furnish the
Dealer the
Company Information as it becomes
available.
|
| 4.3 |
(a)Each
of the Issuer and the Guarantor further agrees to notify the Dealer
promptly, or to make publicly available information in the ordinary
course
of their business, upon the occurrence of any event relating to
or
affecting the Issuer or the Guarantor that would cause the Company
Information then in existence to include an untrue statement of
a material
fact or to omit to state a material fact necessary in order to
make the
statements contained therein, in light of the circumstances under
which
they are made, not misleading.
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| (b) |
In
the event that the Issuer or the Guarantor gives the Dealer notice
pursuant to Section 4.3(a) and the Dealer notifies the Issuer that
it then
has Notes it is holding in inventory, the Issuer and the Guarantor
agree
promptly to supplement or amend the Private Placement Memorandum
so that
the Private Placement Memorandum, as amended or supplemented, shall
not
contain an untrue statement of a material fact or omit to state
a material
fact necessary in order to make the statements therein, in light
of the
circumstances under which they were made, not misleading. The Issuer
and
the Guarantor shall make such supplement or amendment available
to the
Dealer.
|
| (c) |
In
the event that (i) the Issuer or the Guarantor gives the Dealer
notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the
Issuer or the Guarantor that it is then holding Notes in inventory
and
(iii) the Issuer or the Guarantor chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described
in
clause (b) above, then all solicitations and sales of Notes shall
be
suspended until such time as the Issuer and the Guarantor have
so amended
or supplemented the Private Placement Memorandum, and made such
amendment
or supplement available to the Dealer.
|
5. Indemnification
and Contribution.
| 5.1 |
The
Issuer and the Guarantor, jointly and severally, will indemnify
and hold
harmless the Dealer, each individual, corporation, partnership,
trust,
association or other entity controlling the Dealer, any affiliate
of the
Dealer or any such controlling entity and their respective directors,
officers, employees, partners, incorporators, shareholders, servants,
trustees and agents (hereinafter the “Indemnitees”) against any and all
liabilities, penalties, suits, causes of action, losses, damages,
claims,
costs and expenses (including, without limitation, reasonable fees
and
disbursements of counsel) or judgments of whatever kind or nature
(each a
“Claim”), imposed upon, incurred by or asserted against the Indemnitees
arising out of or based upon (i) any allegation that the Private
Placement
Memorandum, the Company Information or any information provided
by the
Issuer or the Guarantor to the Dealer included (as of any relevant
time)
or includes an untrue statement of a material fact or omitted (as
of any
relevant time) or omits to state any material fact necessary to
make the
statements therein, in light of the circumstances under which they
were
made, not misleading or (ii) the breach by the Issuer or the Guarantor
of
any agreement, covenant or representation made in or pursuant to
this
Agreement, except, in the case of clause (ii) above, to the extent
that
such Claim is caused by the gross negligence or willful misconduct
of the
Indemnitee. This indemnification shall not apply to the extent
that the
Claim arises out of or is based upon Dealer
Information.
|
| 5.2 |
Provisions
relating to claims made for indemnification under this Section
5 are set
forth on Exhibit B to this Agreement.
|
| 5.3 |
In
order to provide for just and equitable contribution in circumstances
in
which the indemnification provided for in this Section 5 is held
to be
unavailable or insufficient to hold harmless the Indemnitees, although
applicable in accordance with the terms of this Section 5, the
Issuer and
the Guarantor, jointly and severally, shall contribute to the aggregate
costs incurred by the Dealer in connection with any Claim in the
proportion of the respective economic interests of the Issuer,
the
Guarantor and the Dealer; provided, however, that such contribution
by the
Issuer and the Guarantor shall be in an amount such that the aggregate
costs incurred by the Dealer do not exceed the aggregate of the
commissions and fees earned by the Dealer hereunder with respect
to the
issue or issues of Notes to which such Claim relates. The respective
economic interests shall be calculated by reference to the aggregate
proceeds to the Issuer of the Notes issued hereunder and the aggregate
commissions and fees earned by the Dealer
hereunder.
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6. Definitions.
| 6.1 |
“Claim”
shall have the meaning set forth in Section
5.1.
|
| 6.2 |
“Company
Information” at any given time shall mean the Private Placement Memorandum
together with, to the extent applicable, (i) the Guarantor’s most recent
report on Form 10-K filed with the SEC and each report on Form 10-Q or 8-K
filed by the Guarantor with the SEC since the most recent Form
10-K, (ii)
the Guarantor’s most recent annual audited financial statements and each
publicly reported interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii) the
Guarantor’s and its affiliates’ other publicly available recent reports,
including, but not limited to, any publicly available filings or
reports
provided to their respective shareholders, (iv) any other information
or
disclosure of the Issuer or the Guarantor prepared pursuant to
Section 4.3
hereof and (v) any information prepared or approved by the Issuer
or the
Guarantor for dissemination to investors or potential investors
in the
Notes.
|
| 6.3 |
“Dealer
Information” shall mean material concerning the Dealer provided by the
Dealer in writing expressly for inclusion in the Private Placement
Memorandum.
|
| 6.4 |
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as
amended.
|
| 6.5 |
“Indemnitee”
shall have the meaning set forth in Section
5.1.
|
| 6.6 |
“Institutional
Accredited Investor” shall mean an institutional investor that is an
accredited investor within the meaning of Rule 501 under the Securities
Act and that has such knowledge and experience in financial and
business
matters that it is capable of evaluating and bearing the economic
risk of
an investment in the Notes, including, but not limited to, a bank,
as
defined in Section 3(a)(2) of the Securities Act, or a savings
and loan
association or other institution, as defined in Section 3(a)(5)(A)
of the
Securities Act, whether acting in its individual or fiduciary
capacity.
|
| 6.7 |
“Issuing
and Paying Agent Agreement” shall mean the issuing and paying agent
agreement described on the cover page of this Agreement, as such
agreement
may be amended or supplemented from time to
time.
|
| 6.8 |
“Issuing
and Paying Agent” shall mean the party designated as such on the cover
page of this Agreement, as issuing and paying agent under the Issuing
and
Paying Agent Agreement, or any successor thereto in accordance
with the
Issuing and Paying Agent Agreement.
|
| 6.9 |
| 6.10 |
“Non-bank
fiduciary or agent” shall mean a fiduciary or agent other than (a) a bank,
as defined in Section 3(a)(2) of the Securities Act, or (b) a savings
and
loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
|
| 6.11 |
“Private
Placement Memorandum” shall mean offering materials prepared in accordance
with Section 4 (including materials referred to therein or incorporated
by
reference therein, if any) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements
thereto which may be prepared from time to time in accordance with
this
Agreement (other than any amendment or supplement that has been
completely
superseded by a later amendment or
supplement).
|
| 6.12 |
“QIBs”
shall have the meaning set forth in Section
1.6(a).
|
| 6.13 |
“Qualified
Institutional Buyer” shall have the meaning assigned to that term in Rule
144A under the Securities Act.
|
| 6.14 |
“Regulation
T” shall mean Regulation T issued by the Board of Governors of the
Federal
Reserve System pursuant to the Exchange
Act.
|
| 6.15 |
“Rule
144A” shall mean Rule 144A under the Securities
Act.
|
| 6.16 |
“SEC”
shall mean the U.S. Securities and Exchange
Commission.
|
| 6.17 |
“Securities
Act” shall mean the U.S. Securities Act of 1933, as
amended.
|
7. General
| 7.1 |
Unless
otherwise expressly provided herein, all notices under this Agreement
to
parties hereto shall be in writing and shall be effective when
received at
the address of the respective party set forth in the Addendum to
this
Agreement.
|
| 7.2 |
This
Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to its conflict of laws
provisions.
|
| 7.3 |
(a)Each
of the Issuer and the Guarantor agrees that any suit, action or
proceeding
brought by the Issuer or the Guarantor against the Dealer in connection
with or arising out of this Agreement or the Notes or the offer
and sale
of the Notes shall be brought solely in the United States federal
courts
located in the Borough of Manhattan or the courts of the State
of New York
located in the Borough of Manhattan. EACH OF THE DEALER, THE ISSUER
AND
THE GUARANTOR WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION
OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
|
|
(b)
|
The
Issuer hereby irrevocably accepts and submits to the non-exclusive
jurisdiction of each of the aforesaid courts in personam, generally
and
unconditionally, for itself and in respect of its properties,
assets and
revenues, with respect to any suit, action or proceeding in connection
with or arising out of this
Agreement.
|
|
(c)
|
The
Issuer hereby irrevocably designates, appoints and empowers CT
Corporation
System, with offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as
its designee, appointee and agent to receive, accept and acknowledge
for
and on its behalf, and its properties, assets and revenues, service
for
any and all legal process, summons, notices and documents which
may be
served in any such action, suit or proceeding brought in the
courts listed
in Section 7.3(a) which may be made on such designee, appointee
and agent
in accordance with legal procedures prescribed for such courts,
with
respect to any suit, action or proceeding in connection with
or arising
out of this Agreement or the Notes or the offer and sale of the
Notes. If
for any reason such designee, appointee and agent hereunder shall
cease to
be available to act as such, the Issuer agrees to designate a
new
designee, appointee and agent in The City of New York on the
terms and for
the purposes of this Section 7.3 satisfactory to the Dealer.
The Issuer
further hereby irrevocably consents and agrees to the service
of any and
all legal process, summons, notices and documents out of any
of the
aforesaid courts in any such action, suit or proceeding by serving
a copy
thereof upon the agent for service of process referred to in
this Section
7.3 (whether or not the appointment of such agent shall for any
reason
prove to be ineffective or such agent shall accept or acknowledge
such
service) or by mailing copies thereof by registered or certified
airmail,
postage prepaid, to it at its address specified in or designated
pursuant
to this Agreement. The Issuer agrees that the failure of any
such
designee, appointee and agent to give any notice of such service
to it
shall not impair or affect in any way the validity of such service
or any
judgment rendered in any action or proceeding based thereon.
Nothing
herein shall in any way be deemed to limit the ability of the
holders of
any Notes or the Dealer to serve any such legal process, summons,
notices
and documents in any other manner permitted by applicable law
or to obtain
jurisdiction over the undersigned or bring actions, suits or
proceedings
against the undersigned in such other jurisdictions, and in such
other
manner, as may be permitted by applicable law. The Issuer hereby
irrevocably and unconditionally waives any objection which it
may now or
hereafter have to the laying of venue of any of the aforesaid
actions,
suits or proceedings arising out of or in connection with this
Agreement
brought in the courts listed in Section 7.3(a) and hereby further
irrevocably and unconditionally waives and agrees not to plead
or claim in
any such court that any such action, suit or proceeding brought
in any
such court has been brought in an inconvenient
forum.
|
|
(d)
|
To
the extent that the Issuer or any of its properties, assets or
revenues
may have or may hereafter become entitled to, or have attributed
to them,
any right of immunity, on the grounds of sovereignty or otherwise,
from
any legal action, suit or proceeding in connection with or arising
out of
this Agreement or the Notes or the offer and sale of the Notes,
from the
giving of any relief in any thereof, from setoff or counterclaim,
from the
jurisdiction of any court, from service of process, from attachment
upon
or prior to judgment, from attachment in aid of execution of
judgment, or
from execution of judgment, or other legal process or proceeding
for the
giving of any relief or for the enforcement of any judgment,
in any
jurisdiction in which proceeding may at any time be commenced,
with
respect to its obligations, liabilities or any other matter under
or
arising out of or in connection with this Agreement, the Issuing
and
Paying Agent Agreement or the Notes, the Issuer hereby irrevocably
and
unconditionally waives, and agrees for the benefit of the Dealer
and any
holder from time to time of the Notes not to plead or claim,
any such
immunity, and consent to such relief and
enforcement.
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| 7.4 |
This
Agreement may be terminated, at any time, by the Issuer, upon one
New York
Business Day’s prior notice to such effect to the Dealer, or by the Dealer
upon one New York Business Day’s prior notice to such effect to the Issuer
and the Guarantor. Any such termination, however, shall not affect
the
obligations of the Issuer and the Guarantor under Sections 5 and
7.3
hereof or the respective representations, warranties, agreements,
covenants, rights or responsibilities of the parties made or arising
prior
to the termination of this Agreement.
|
| 7.5 |
This
Agreement is not assignable by any party hereto without the written
consent of the other parties; provided, however, that the Dealer
may
assign its rights and obligations under this Agreement to any affiliate
of
the Dealer.
|
| 7.6 |
This
Agreement may be signed in any number of counterparts, each of
which shall
be an original, with the same effect as if the signatures thereto
and
hereto were upon the same instrument.
|
| 7.7 |
This
Agreement is for the exclusive benefit of the parties hereto, and
their
respective permitted successors and assigns hereunder, and shall
not be
deemed to give any legal or equitable right, remedy or claim to
any other
person whatsoever; provided,
however,
that Sections 7.3(b), (c) and (d) and Section 7.8 are hereby specifically
and exclusively acknowledged to also be for the benefit of the
holders
from time to time of the Notes, as third-party
beneficiaries.
|
7.8
(a) Any
payments to the Dealer hereunder or to any holder from time to time of
Notes
shall be in United States dollars and shall be free of, and without withholding
for or on account of, any taxes or other governmental charges of any nature
whatsoever imposed by Luxembourg (“Taxes”), unless the Issuer or the Guarantor,
as the case may be, is required to withhold any such Taxes by Luxembourg
law (or
the interpretation or administration thereof). In the event that the Issuer
or
the Guarantor is so required to withhold any such Taxes from any payments
to the
Dealer hereunder or to any holder from time to time of Notes, the Issuer
or the
Guarantor, as the case may be, will (x) withhold and pay such Taxes and
(y) pay
such additional amounts to the Dealer or such holder, as the case may be,
which,
after such withholding of such Taxes (including any withholding of such
Taxes in
respect of additional amounts) shall equal the amount the Dealer or such
holder
would have received if such Taxes had not been withheld; provided, however,
that
the Issuer and the Guarantor shall not be required to pay any such additional
amounts with respect to any payment to the Dealer or to any holder of a
Note on
account of (i) any Taxes that would not have been so imposed or withheld
but for
the existence of any present or former personal or business connection
between
the Dealer or such holder or the beneficial owner of such Note, as the
case may
be, and Luxembourg other than the mere receipt of such payment or the ownership
or holding of such Note; (ii) any estate, inheritance, gift, sales, value
added,
transfer, stamp, excise or personal property Tax or any similar Tax; (iii)
any
Taxes that are payable otherwise than by withholding from a payment to
the
Dealer or to such holder or the beneficial owner of such Note; (iv) any
Taxes
imposed or withheld as a result of the failure of the Dealer or such holder
or
the beneficial owner of such Note, as the case may be, to duly and timely
comply
with any applicable certification, information, identification, documentation
or
other reporting requirements concerning the nationality, residence, identity
or
connection with Luxembourg of the Dealer or such holder or the beneficial owner
of such Note, as the case may be, or to make any valid or timely declaration
or
similar claim, if such compliance or such declaration or similar claim
is
required by a statute, treaty, regulation or administrative practice of
Luxembourg as a precondition to relief or exemption from all or part of
such
Taxes; (v) any Taxes which would not have been so imposed or withheld but
for
the presentation of such Note for payment on a date more than 10 days after
the
date on which such payment became due and payable or the date on which
payment
is duly provided for, whichever occurs later; (vi) any Taxes required to
be
withheld pursuant to a law in effect as of the date hereof, including any
withholding under the European Council Directive 2003/48/EC or any other
Directive on the taxation of savings implementing the conclusions of the
ECOFIN
council meeting of 26th-27th November, 2000, or any law implementing or
complying with, or introduced in order to conform to, such Directive; (vii)
any
Taxes required to be withheld by any paying agent from any payment in respect
of
such Note if such payment could be made without such withholding by at
least one
other paying agent; or (viii) any Taxes imposed on or withheld from a payment
to
such holder if such holder is not the beneficial owner of such Note or
is a
fiduciary, partnership, limited liability company or other similar entity,
but
only to the extent that a beneficial owner of such Note, a beneficiary
or
settlor with respect to such fiduciary or member of such partnership, limited
liability company or similar entity would not have been entitled to the
payment
of additional amounts had such beneficial owner, settlor, beneficiary or
member
received directly its beneficial or distributive share of such payment.
The
Issuer and the Guarantor will promptly pay any documentary tax or other
similar
governmental charges imposed by Luxembourg in connection with the execution,
delivery, payment or performance of this Agreement, the Guarantee, the
Issuing
and Paying Agent Agreement or the Notes and shall indemnify and hold harmless
the Dealer and each holder of Notes from all liabilities arising from any
failure to pay, or delay in paying, such taxes or charges.
|
(b)
|
Each
of the Issuer and the Guarantor agrees to indemnify and hold
harmless the
Dealer and each holder from time to time of Notes against any
loss
incurred by the Dealer or such holder as a result of any judgment
or order
being given or made for any amount due hereunder and such judgment
or
order being expressed and paid in a currency (the “Judgment Currency”)
other than United States dollars and as a result of any variation
as
between (i) the rate of exchange at which the United States dollar
amount
is converted into the Judgment Currency for the purpose of such
judgment
or order, and (ii) the rate of exchange at which the Dealer or
such holder
is able to purchase United States dollars with the amount of
Judgment
Currency actually received by the Dealer or such holder. The
foregoing
indemnity shall constitute separate and independent obligations
of the
Issuer and the Guarantors and shall continue in full force and
effect
notwithstanding any such judgment or order as aforesaid. The
term “rate of
exchange” shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant
currency.
|
7.9
Each
of
the Issuer, the Guarantor and the Dealer acknowledges and agrees that
(i) the purchase and sale of the Notes pursuant to this Agreement is an
arm’s-length commercial transaction between the Issuer, on the one hand, and
the
Dealer, on the other, and (ii) in connection therewith and with the process
leading to such transaction the Dealer is acting (and shall at all times
continue to act) solely as a principal and not the agent of the Issuer
or the
Guarantor.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Issuer, the Guarantor and the Dealer, or any of them,
with
respect to the subject matter hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date and year first above written.
|
The
Procter & Xxxxxx Company,
as
Guarantor
|
____________________,
as
Dealer
|
|
|
|
|
By:_____________________________
|
By:
____________________________
|
|
Name:
__________________________
|
Name:
__________________________
|
|
Title:
___________________________
|
Title:
Authorized
Signatory
|
|
Procter
& Xxxxxx International Funding S.C.A.,
as
Issuer
|
|
|
|
|
|
By:
_____________________________
|
|
|
Name:
__________________________
|
|
|
Title:
____________________________
|
