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EXHIBIT 1
FORM OF
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CABOT CORPORATION
$500,000,000
SERIES B MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
November __, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Cabot Corporation, a Delaware corporation (the "Company"), confirms its
agreement with each of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. (each,
an "Agent", and collectively, the "Agents") with respect to the issue and sale
by the Company of its Series B 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 December 1, 1987, as supplemented and amended by a First
Supplemental Indenture dated as of June 17, 1992, a Second Supplemental
Indenture dated as of January 31, 1997 and a Third Supplemental Indenture dated
as of November __, 1998 (collectively and as amended or supplemented from time
to time, the "Indenture"), between the Company and State Street Bank and Trust
Company, as successor trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance and sale of up to U.S. $500,000,000
aggregate initial offering price of Notes (or its equivalent, based upon the
exchange rate on the applicable trade date in such foreign or composite
currencies as the Company shall designate at the time of issuance) 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
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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 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") a registration statement on Form S-3 (No. 333-64787) 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
post-effective amendments thereto as may be required prior to any acceptance by
the Company of an offer for the purchase of Notes. Such registration statement
(as so amended, if applicable) has 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"). Such registration statement (as so amended, if
applicable) is referred to herein as the "Registration Statement"; and the final
prospectus and all applicable amendments or supplements thereto (including the
final prospectus supplement and pricing supplement relating to the offering of
Notes), 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 incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to any
acceptance by the Company of an offer for the purchase of Notes; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. 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 information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. 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 any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
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
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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.
1. APPOINTMENT AS AGENT.
a. APPOINTMENT. 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 agrees that
Notes will be sold exclusively to or through the Agents. The
Company agrees that it will not appoint any other agents to act on
its behalf, or to assist it, in the placement of the Notes.
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 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
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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.
2. REPRESENTATIONS AND WARRANTIES.
a. 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. DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF THE
COMPANY. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus and to enter into this Agreement
and 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 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 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
(a "Material Adverse Effect").
ii. DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF
SIGNIFICANT SUBSIDIARIES. Each significant subsidiary (as
such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act), if any (each, a "Significant
Subsidiary") 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
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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 to so qualify or be in good standing would
not result in a Material Adverse Effect; the Company owns
such amount or percentage of the outstanding capital stock of
its subsidiaries as it is stated in the Prospectus to own or
as it is assumed to own for purposes of preparing the
financial statements of the Company included in the
Prospectus, free and clear of all liens, encumbrances and
claims, and all such stock is validly issued, fully paid and
nonassessable.
iii. REGISTRATION STATEMENT AND PROSPECTUS. The Company meets the
requirements for use of Form S-3 under the 1933 Act; 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 (including 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 that the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration
Statement (including any Rule 462(b) Registration Statement)
and any amendments 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; each preliminary
prospectus and 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; each preliminary prospectus and the
Prospectus delivered to the applicable Agent(s) for use in
connection with the offering of Notes are identical to any
electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T; and at the date hereof, at the date of the
Prospectus and at each Representation Date, neither the
Prospectus nor any amendment or supplement thereto 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 not misleading;
provided, however, that the
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representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by the Agents expressly for use in the Registration
Statement or the Prospectus or to any statement in or
omission from the Statement of Eligibility and Qualification
on Form T-1 of the Trustee.
iv. INCORPORATED DOCUMENTS. The documents incorporated or deemed
to be incorporated by reference in the Prospectus, at the
time they were or are hereafter 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.
v. INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
vi. FINANCIAL STATEMENTS. The consolidated financial statements
of the Company included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as
well as those financial statements, schedules and notes of
any other entity included in the Registration Statement and
the Prospectus, present fairly the consolidated financial
position of the Company and its subsidiaries, or such other
entity, as the case may be, at the dates indicated and the
consolidated statement of operations, stockholders' equity
and cash flows of the Company and its subsidiaries, or such
other entity, as the case may be, for the periods specified;
such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods
involved, except for the notes to any unaudited financial
statements; the supporting schedules, if any, included in the
Registration Statement and the Prospectus 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; and any pro forma
consolidated financial statements of the Company and its
subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance
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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.
vii. NO MATERIAL CHANGES. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (1) there has
been no event or occurrence that would result in a Material
Adverse Effect and (2) 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.
viii. 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 will be
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 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
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certified to the Agents and contemplated by the Indenture;
and each holder of Notes will be entitled to the benefits of
the Indenture.
ix. 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. Immediately after any sale of
Notes by the Company hereunder, the aggregate amount of Notes
which shall have been issued and sold by the Company
hereunder and of any debt securities of the Company (other
than such Notes) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration
Statement.
x. 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.
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) 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 or without the giving
of notice or the passage of time or both, conflict with or
constitute a breach of, or default or 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 (a
"Repayment Event") under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of its
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subsidiaries pursuant to, any Agreements and Instruments, 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.
xii. 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 may reasonably be expected to result in a Material
Adverse Effect, or which may 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, may not reasonably be expected to result in a
Material Adverse Effect.
xiii. TITLE TO PROPERTY. The Company and its subsidiaries have good
and marketable title to all property that is described in the
Prospectus as owned by the Company and its subsidiaries or
necessary to conduct its business as described in the
Prospectus, 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 are not
material and do not, singly or in the aggregate, materially
interfere with or adversely affect the use made and proposed
to be made of such property by the Company or any of its
subsidiaries.
xiv. 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,
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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 may 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.
xv. NO FILINGS, REGULATORY APPROVALS ETC. No filing with, or
approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or
required for the performance by the Company of its
obligations under this Agreement, the Indenture and the
Notes or in connection with the transactions contemplated in
the Prospectus, except such as have been obtained under the
1933 Act or the 1939 Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the solicitation by any Agent of offers to
purchase Securities from the Company and with purchases of
Securities by such Agent as principal, as the case may be,
in each case in the manner contemplated hereby.
xvi. 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"
within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
xvii. 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").
xviii. RATINGS. The Medium-Term Note Program under which the Notes
are issued (the "Program"), as well as the Notes, are rated
[ ] by Xxxxx'x
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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.
b. ADDITIONAL CERTIFICATIONS. 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.
3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
a. PURCHASES AS PRINCIPAL. Notes purchased 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 by one
or more Agents as principal, 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 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:
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(i) 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 the 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
(ii) 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 the 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
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.
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
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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.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent as follows:
a. NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration
Statement or the filing of any amendment or supplement to the
Prospectus (other than any 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), (ii) the receipt of any comments from the Commission,
(iii) 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) 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 initiation of any
proceedings for that purpose 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 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 OR USE 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) of the 1933 Act
Regulations) 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
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use, as the case may be, and will not file any such document to
which the Agents or counsel for the Agents shall object.
c. DELIVERY OF THE REGISTRATION STATEMENT. The Company has furnished
to each Agent and to 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 any electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
d. DELIVERY OF THE PROSPECTUS. 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, 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
any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
e. 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.
f. REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (m) 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
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opinion of either such counsel, 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 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.
g. PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (m) 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
timely 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.
h. PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (m) 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
timely 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.
i. EARNINGS STATEMENTS. 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.
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j. 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 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 1934 Act Regulations.
k. RESTRICTION ON OFFERS AND SALES OF SECURITIES. 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).
l. 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.
m. SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (f), (g) or
(h) 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.
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 and no proceedings for that purpose shall have
been instituted or shall be pending 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.
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b. LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in
form and substance satisfactory to the Agents:
(1) OPINION OF COUNSEL FOR THE COMPANY. The favorable opinion of
Xxxxxx Xxxxxxxx, Esq., Vice President and General Counsel of
the Company, to the effect set forth in Exhibit B hereto and
to such further effect as the Agents may reasonably request.
(2) OPINION OF COUNSEL FOR THE AGENTS. The favorable opinion of
Xxxxxxx, Xxxxxxx & Xxxx LLP, counsel for the Agents, with
respect to the matters set forth in numbered paragraphs 1
(first sentence), 5, 6, 8 and 10 and the penultimate
paragraph of Exhibit B hereto.
c. OFFICER'S CERTIFICATE. On the date hereof, 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, and the Agents shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial officer and chief accounting officer of the Company,
dated as of the date hereof, to the effect that (i) there has been
no such material adverse change, (ii) the representations and
warranties of the Company herein contained are true and correct
with the same force and effect as though expressly made at and as
of the date of such certificate, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate,
and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to the best of such
officer's knowledge, are threatened by the Commission.
d. COMFORT LETTER OF INDEPENDENT ACCOUNTANTS. On the date hereof, the
Agents shall have received a letter from the independent certified
public accountants who have certified the financial statements
included or incorporated by reference in the Registration Statement
and Prospectus, as then amended or supplemented, dated as of the
date hereof and in form and substance satisfactory to the Agents,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference in the
Registration Statement and the Prospectus, as then amended or
supplemented.
e. ADDITIONAL DOCUMENTS. On the date hereof, counsel to the Agents
shall have been furnished with such documents and opinions as such
counsel may require for the purpose of enabling such counsel to
pass upon the issuance and sale of Notes as herein
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contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations and 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 Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
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.
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.
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
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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) the Company sells Notes to or through
one or more Agents, whether as principal or as agent 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(c) 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(c) 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) the Company sells Notes to or through one or more
Agents, whether as principal or as agent 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
forthwith to the Agent(s) and to counsel to the Agents the written
opinion of Xxxxxx Xxxxxxxx, Esq., counsel to the Company, or other
counsel satisfactory to the Agent(s), 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 opinion referred to in Section 5(b)(1) hereof,
but modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agent(s)
with a letter substantially to the effect that the Agent(s) may
rely on such 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).
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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) the
Company sells Notes to or through one or more Agents, whether as
principal or as agent, the Company shall cause its independent
public accountants forthwith 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(d) hereof but modified to relate to the Registration
Statement and Prospectus as amended and supplemented to the date of
such letter.
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), 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;
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 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), 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;
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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) or
any preliminary prospectus or 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) 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 the Agents expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
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 case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent
that it shall wish, to assume the defense thereof, jointly with any
other indemnifying party similarly notified, with counsel
satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 8 for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the defense thereof except as provided below and except for the
reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (i) the
employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (ii) the indemnified party
has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the
indemnifying party, (iii) a
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conflict or potential conflict exists (based on advice of counsel
to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (iv) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the
indemnifying party or parties. 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 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
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 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),
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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, (i) 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 and (ii) 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. 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,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
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 to contribution as such Agent, and each director
of the Company, each officer of the Company and
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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.
10. PAYMENT OF EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
a. The preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any
preliminary prospectus, the Prospectus and any amendments or
supplements thereto;
b. The preparation, printing and delivery of this Agreement and the
Indenture;
c. 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;
d. 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;
e. The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and
incurred from time to time in connection with the transactions
contemplated hereby;
f. The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
g. The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
h. 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"); and
i. Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
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.
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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 30
days' 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 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.
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c. GENERAL. In the event of any such termination, 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 Section
4(i) 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.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Cabot Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Treasurer
Telecopy No.: 000-000-0000
with a copy to:
Cabot Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (000) 000-0000
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Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Credit Department, Credit Control -- Medium-Term Notes
Telecopy No.: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Department
Telecopy No.: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
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.
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 WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. 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.
16. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
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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.
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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,
CABOT CORPORATION
By: ___________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _________________________________
Authorized Signatory
XXXXXXX, XXXXX & CO.
By: _________________________________
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By: _________________________________
Authorized Signatory
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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:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
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)
-----------------
(1) As agreed to by the Company and the applicable Agent at the time of sale.
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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: [ ] 30/360 for the period from ______ to _______ or
[ ] Actual/360 for the period from ______ to ______
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:
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:
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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 Letter pursuant to Section 7(d) of
the Distribution Agreement.
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EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(1)
(1) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to issue and sell the Notes.
The Company has been duly qualified to do business as a foreign
corporation in, and is in good standing under the laws of, each
jurisdiction (other than the State of Delaware) where the Company owns
or leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify or failure to be
in good standing would not have a material adverse effect upon the
Company and its subsidiaries taken as a whole.
(2) Each of the current subsidiaries of the Company which is a "significant
subsidiary" (as defined in Regulation S-X under the Securities Act of
1933) has been duly incorporated and is validly existing as a
corporation and is in good standing under the laws of the jurisdiction
of its incorporation (except with respect to any subsidiaries
incorporated in jurisdictions where the concept of good standing is not
recognized); and the Company owns of record or beneficially all of the
outstanding shares of capital stock of each such subsidiary, to such
counsel's knowledge, free and clear of any liens, encumbrances or
claims.
(3) To the best of such counsel's knowledge, other than as set forth in the
Prospectus, there is not pending or threatened any action, suit or
proceeding before any court or governmental agency, authority or body
involving the Company or any of its subsidiaries which either
individually or in the aggregate may reasonably be foreseen to have a
material adverse effect on the business or condition of the Company and
its subsidiaries, taken as a whole; and the descriptions of the actions,
suits and proceedings incorporated by reference in the Prospectus fairly
describe, to the extent required by applicable Exchange Act provisions,
such actions, suits or proceedings as of the date made and no materially
adverse change has occurred with respect to such actions, suits or
proceedings.
(4) To the best of such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities in connection
with the Registration Statement.
(5) The Distribution Agreement has been duly authorized, executed and
delivered by the Company.
(6) The Notes have been duly authorized and, when duly executed,
authenticated, issued in accordance with the Indenture and delivered by
the Company, and paid for in accordance with the terms thereof, will
constitute valid and legally binding obligations of the Company
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entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, subject, as to enforcement, to (i)
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, (ii)
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or law), (iii) the discretion of the
court before which any proceeding therefor may be brought, (iv)
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 and
(v) governmental authority to limit, delay or prohibit the making of
payments outside the United States (collectively, the "Enforceability
Limitations"). The Indenture and the Notes conform in all material
respects to the descriptions thereof in the Prospectus, as amended or
supplemented through the date of such opinion.
(7) The Indenture has been duly authorized, executed and delivered on behalf
of the Company and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
the Enforceability Limitations. The Indenture has been duly qualified
under the Trust Indenture Act.
(8) No authorization consent or approval under any law or by any regulatory
authority is required for the valid issuance and sale of the Notes or
the consummation by the Company of the transactions contemplated in the
Distribution Agreement (except under the so-called "blue sky" or
securities laws of the several states, as to the applicability of which
such counsel need express no opinion).
(9) The execution, delivery and performance by the Company of the
Distribution Agreement and the Indenture, and the issuance and sale of
the Notes, will not result in any violation of or be in conflict with or
constitute a default under any term of (a) its charter or by-laws, (b)
any statute or governmental rule or regulation or (c) to the best
knowledge of such counsel, any license, permit, agreement, indenture,
instrument, judgment, decree or order, in each case applicable to it so
as to materially and adversely affect the financial condition of the
Company and its subsidiaries taken as a whole.
(10) Each of the documents incorporated by reference into the Registration
Statement, when it was filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(11) The Registration Statement became effective under the Act on October 13,
1998; any required filing, as of the date hereof, of a prospectus or any
supplement thereto pursuant to Rule 424(b) of the Act has been made in
the manner and within the time period required thereby; and, to the best
of my knowledge, 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 under the Act.
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(12) The Registration Statement (including the Prospectus contained therein)
as of its effective date, and the Prospectus and Prospectus Supplement
as of the date hereof, other than the financial statements and the
related schedules therein, as to which such counsel need express no
opinion, complied as to form in all material respects with the
requirements of the Securities Act of 1933 and the applicable published
rules and regulations thereunder and the Indenture complies as to form
in all material respects with the requirements of the Trust Indenture
Act and the rules and regulations thereunder.
(13) Such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement or
the Prospectus which are not filed or incorporated by reference or
described as required.
In addition, such counsel shall state that, without passing upon or
assuming any responsibility for the accuracy or completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, nothing
has come to such counsel's attention that would lead such counsel to believe (a)
that the Registration Statement or any post-effective amendment thereto (except
for financial statements, supporting schedules and other financial data included
therein or omitted therefrom and for the Form T-1, as to which such counsel need
make no statement), at the time the Registration Statement or any post-effective
amendment thereto (including the filing of the Company's Annual Report on Form
10-K with the Commission) became effective 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 (b) that the Prospectus or any amendment or supplement thereto
(except for financial statements, supporting schedules and other financial and
statistical data included therein or omitted therefrom, as to which such counsel
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 of such
opinion, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering this opinion, counsel for the Company may rely (A) as to
matters involving the application of laws other than the laws of the United
States, the Commonwealth of Massachusetts and the State of Delaware, to the
extent such counsel deems proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (dated and furnished to the Agents on the
date of such counsel's opinion, and in form and substance reasonably
satisfactory to counsel for the Agents) of other counsel that is familiar with
the applicable laws and is reasonably acceptable to counsel for the Agents, and
(B) as to matters of fact (but not as to legal conclusions), to the extent
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such counsel deems proper, on certificates of responsible officers of the
Company and public officials. The opinion of counsel to the Company, to the
extent that it relies on such opinions, certificates or other written
statements, shall state that the opinion of any such other counsel or any such
certificate is in form satisfactory to such counsel and, in such counsel's
opinion, such counsel and the Agents are justified in relying thereon.
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