Exhibit 1.1
EXECUTION COPY
GENERAL XXXXX, INC.
3.901% NOTES DUE 2007
PLACEMENT AGENCY AGREEMENT
November 15, 0000
XXXX XX XXXXXXX SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
FLEET SECURITIES, INC.
HSBC SECURITIES (USA) INC.
WACHOVIA SECURITIES, INC.
c/o Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
General Xxxxx, Inc., a Delaware corporation (the "Company"), hereby
confirms its agreement with Banc of America Securities LLC, X.X. Xxxxxx
Securities Inc., Fleet Securities, Inc., HSBC Securities (USA) Inc. and Wachovia
Securities, Inc., each as an agent of the Company (collectively the "Placement
Agents") with respect to the issue and sale by the Company of, and the
solicitation by the Placement Agents on behalf of the Company of offers to
purchase, up to $135,000,000 aggregate principal amount of the Company's 3.901%
Notes due 2007 identified in Schedule I (the "Notes") to Core Bonds Products
LLC, as depositor (the "Depositor") for the Core Investment Grade Bond Trust I
(the "Trust"). The Notes are to be issued pursuant to an indenture, dated as of
February 1, 1996, as amended or modified from time to time (the "Indenture"),
between the Company and U.S. Bank National Association (formerly First Trust of
Illinois, National Association), as trustee (the "Trustee"). The Company hereby
appoints the Placement Agents as its exclusive agents for the solicitation of
offers to purchase the Notes from the Company by the Depositor, and each
Placement Agent hereby accepts such appointment. The Company shall not appoint
any other entity or person to act on its behalf, or to assist it, in the
placement of the Notes. Notwithstanding anything to the contrary contained
herein, the parties hereto agree that no Placement Agent shall be obligated,
under any circumstance, to purchase Notes from the Company, as principal or
otherwise.
Concurrent with the issue and sale of the Notes, the Company is offering
$350,000,000 aggregate principal amount of the Company's 3.875% Notes due 2007
(the
"3.875% Notes") in a separate offering registered under the Securities Act of
1933. Neither offering is contingent upon the other.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 15 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Placement Agent as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Notes. The Company may
have filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission a final prospectus in
accordance with Rules 415 and 424(b). As filed, such final prospectus
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Placement Agents
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the
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Trust Indenture Act and the rules thereunder; and, as of its date and on
the Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification ("Form T-1") under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Placement Agents specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) Each of the Company and its Material Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized with corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); and the Notes have been
duly authorized and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the
Depositor, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law) and entitled to
the benefits of the Indenture.
(f) Neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of the
transactions herein
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contemplated will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its Material Subsidiaries pursuant to, (i) the
charter or by-laws of the Company or such subsidiaries, (ii) the terms
of any material indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or such
subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or such subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its subsidiaries
or any of its or their properties.
(g) There has been no material adverse effect on the consolidated
financial position, stockholders' equity or results of operations,
prospects, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus.
(h) The Indenture and the Notes conform in all material respects
to the description thereof contained in the Final Prospectus.
(i) The Company is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(j) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase of the Notes by the Depositor in the manner contemplated herein
and in the Prospectus.
(k) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial data set
forth under the caption "Ratios of Earnings to Fixed Charges" in the
Prospectus and Registration Statement fairly present, on the basis
stated in the Prospectus and the Registration Statement, the information
included or incorporated by reference therein. The pro forma financial
statements included or incorporated by reference in the Prospectus and
the Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions and events described therein, the
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related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial statement
amounts in the pro forma financial statements included in the Prospectus
and the Registration Statement. The pro forma financial statements
included in the Prospectus and the Registration Statement comply as to
form in all material respects with the applicable accounting
requirements of Regulation S-X under the Act.
(l) Except as set forth in or contemplated in the Prospectus, no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations, prospects, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(m) KPMG LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated financial statements and
schedules included in the Prospectus, are independent public accountants
with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(n) No labor dispute with the employees of the Company or any of
its Material Subsidiaries exists or, to the best of the Company's
knowledge, is threatened that could reasonably be expected to have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations, prospects, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business except as set forth in or contemplated in the Prospectus.
(o) No Material Subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary
of the Company, except as described in or contemplated by the
Prospectus.
(p) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes.
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Any certificate signed by any officer of the Company and delivered to
the Placement Agents or counsel for the Placement Agents in connection with the
placement of the Notes shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to the Placement Agents.
2. Placement of Notes; Fees
(a) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein specified, each
Placement Agent, acting solely as an agent of the Company, will use its
reasonable efforts to solicit offers from the Depositor for the purchase of the
aggregate principal amount of the Notes from the Company specified opposite its
name in Schedule II attached hereto. Each Placement
Agent will communicate to the Company, orally, each offer for the purchase of
Notes it has solicited from the Depositor on an agency basis. In the event that
a Placement Agent orally communicates to the Company that it has received an
offer from the Depositor for the purchase of Notes at a price at least equal to
100% of the principal amount thereof, then the Company shall accept such offer
in whole, provided that the aggregate of all such offers does not exceed
$135,000,000 aggregate principal amount of Notes. If the Company shall default
on its obligation to deliver Notes to a purchaser whose offer has been solicited
by a Placement Agent on an agency basis and accepted by the Company or fails to
satisfy any condition to its issuance and sale of the Notes hereunder, the
Company shall (i) hold such Placement Agent harmless against any loss, claim or
damage arising from, or as a result of, such default or failure and (ii) pay to
such Placement Agent the commission to which it would otherwise be entitled
absent such default or failure.
(b) The Company hereby agrees to pay to each Placement Agent a
commission equal to .30% of the principal amount of each Note to be delivered to
a purchaser whose offer has been solicited by such Placement Agent on an agency
basis and has been accepted, or is required to be accepted in accordance with
the terms hereof, by the Company. Such commission shall be payable, at the
option of the applicable Placement Agent, either in the form of a discount from
the price received from purchasers of Notes sold through such Placement Agent or
directly from the Company. Delivery of Notes sold through a Placement Agent as
an agent of the Company shall be made by the Company to such Placement Agent for
the account of the purchaser thereof only against payment therefor in
immediately available funds. In the event that the purchaser of Notes fails to
accept delivery of such Notes or fails to make payment in full therefor on the
Closing Date, the applicable Placement Agent shall promptly notify the Company
and return such Notes to the Company. If such Placement Agent has theretofore
paid the Company for such Notes, the Company shall promptly return the related
funds to such Placement Agent and shall reimburse such Placement Agent on an
equitable basis for its loss of the use of funds for the period such funds were
credited to the Company's account.
(c) The Company acknowledges that the placement of Notes arranged
by the Placement Agents for the Company on an agency basis is being conducted by
the Placement Agents in reliance upon the representations, warranties, covenants
and agreements contained herein.
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3. Delivery of Prospectus; No Contest of Enforceability of
Securities Laws Rights. (a) The Company hereby authorizes the Placement Agents
to deliver a copy of the Prospectus to each initial purchaser of Pass-Through
Certificates (the "Certificates") issued under the Trust Agreement, dated as of
November 20, 2002 (the "Trust Agreement"), among Core Bond Products LLC, as
depositor, Banc of America Securities LLC, as administrative agent, and The Bank
of New York, as trustee (the "Certificates Trustee"). Furthermore, each of the
Company and the Placement Agents (i) acknowledges that the Certificates Trustee
has assigned to initial purchasers and subsequent holders of the Certificates
its rights against the Company and such Placement Agent under U.S. federal and
state securities laws with respect to its purchase of the Notes and (ii) agrees
not to contest the enforceability of such assignment.
(b) The Company has advised you, and you hereby acknowledge, that
(i) the Company has not been involved in, among other things, the creation of
the Trust or the preparation of the registration statement and prospectus
related to the Certificates, (ii) the Company has no contractual or other
arrangements with the Trust, (iii) the Company will not be involved in the
distribution of the Certificates, (iv) the Company does not have any contractual
or other arrangements related to the Trust with you (other than this Agreement),
the Depositor, any other issuers whose securities may be deposited with the
Trust or any other party, (v) the Company is not a co-issuer of the Certificates
and (vi) the Company is not a partner or joint venturer with respect to the
Trust with you, the Trust, the Depositor or any other issuers whose securities
may be deposited with the Trust. The Company does not have and is not assuming,
and nothing herein contained (except as specifically set forth in paragraph (a)
of this Section 3 and in Section 11 hereof) shall create any liability or
obligation of the Company with respect to the Trust or its structure or actions,
the Certificates or their issuance, offering or sale, the registration statement
or prospectus relating to the Certificates or the actions or securities of any
other issuer that may deposit securities with the Trust. Any references in this
Agreement or any certificate or Legal Opinion delivered hereunder to "the
transactions herein contemplated," "the transactions contemplated herein," "the
transactions contemplated hereby" and like terms shall refer solely to the issue
of the Notes under the Indenture and the sale of the Notes to the Depositor
through you as Placement Agents pursuant to this Agreement and shall not be
deemed to include matters relating to the Trust or its structure or actions, the
Certificates or their issuance, offering or sale, the registration statement or
prospectus relating to the Certificates or the actions or securities of any
other issuer that may deposit securities with the Trust.
4. Agreements. The Company further covenants and agrees with the
Placement Agents that:
(a) The Company will use its best efforts to cause any amendment
to the Registration Statement to become effective. Prior to the termination of
the offering of the Notes, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object, except for any pricing supplement
relating to General Xxxxx CoreNotes or any prospectus supplement relating to
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the 3.875% Notes. Subject to the foregoing sentence, if the Registration
Statement has become effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Placement Agents of such timely filing. The Company will promptly advise the
Placement Agents (1) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (2) when, prior to termination of the offering of the Notes, any
amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information, (4) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will (1)
notify the Placement Agents of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 4,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Placement Agents an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Placement Agents and counsel
for the Placement Agents, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by a Placement Agent may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Placement Agents may reasonably request.
(e) The Company will arrange, if necessary, for the qualification
of the Notes for sale under the laws of such jurisdictions as the Placement
Agents may
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designate, will maintain such qualifications in effect so long as required for
the distribution of the Notes and will pay any fee of the National Association
of Securities Dealers, Inc., in connection with its review of the offering;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Notes, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of
the Placement Agents, offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Rule 16a of the Exchange Act in respect of, any
debt securities issued or guaranteed by the Company with a maturity in excess of
one year (other than the Notes, the 3.875% Notes, and any General Xxxxx
CoreNotes) or publicly announce an intention to effect any such transaction,
until the Closing Date.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Notes.
5. Conditions to the Obligations of the Placement Agents. The
obligations of the Placement Agents hereunder shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) The Company's General Counsel shall have furnished to the
Placement Agents his or her opinion, dated the Closing Date and
addressed to the Placement Agents, to the effect that:
(i) the Company and each of its Material Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in which it
is chartered or
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organized, with corporate power and authority to own or lease,
as the case may be, and to operate its properties and conduct
its business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, or subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction;
(ii) the Company's authorized equity capitalization is as
set forth in the Final Prospectus; the Indenture and the Notes
conform in all material respects to the description thereof
contained in the Final Prospectus;
(iii) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a
proceeding in equity or at law); and the Notes have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Depositor, will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law) and
entitled to the benefits of the Indenture;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their
property, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required; and
the statements included or incorporated by reference in the Final
Prospectus under the headings "Description of Debt Securities We
May Offer" and "Description of the Notes" insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings;
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(v) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened,
and the Registration Statement and the Final Prospectus (other
than the financial statements and other financial information
contained or incorporated by reference therein and the Form T-1,
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; and such counsel has no reason to
believe that on the Effective Date or the date the Registration
Statement was last deemed amended, and on the date hereof, the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on the
Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained or incorporated by reference therein and
the Form T-1, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) the Company is not and, after giving effect to the
offering and sale of the Notes and the application of the
proceeds thereof as described in the Final Prospectus, will not
be an "investment company" as defined in the Investment Company
Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is required
in connection with the transactions contemplated herein, except
(a) such as have been obtained under the Act and the Trust
Indenture Act and (b) such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase of the
Notes by the Depositor in the manner contemplated in this
Agreement and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the execution and delivery of the Indenture,
the issue and sale of the Notes, nor the consummation of any
other of the transactions herein contemplated will conflict with,
result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
or its Material Subsidiaries pursuant
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to, (i) the charter or by-laws of the Company or such
subsidiaries, (ii) the terms of any material indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or such subsidiaries is a party
or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or such subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company or such subsidiaries or any of its or their properties;
and
(x) no holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Placement Agents and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and its subsidiaries and public
officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Placement Agents shall have received from Xxxxx Xxxx &
Xxxxxxxx, counsel for the Placement Agents, such opinion or opinions,
dated the Closing Date and addressed to the Placement Agents, with
respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Placement Agents
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the Placement Agents a
certificate of the Company, signed by the Chairman of the Board or the
President or any Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have reviewed the Registration
Statement, the Final Prospectus, any supplements to the Final Prospectus
and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) to the knowledge of such officers, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or threatened; and
12
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has been no material adverse effect on the
consolidated financial position, stockholders' equity or results
of operations, prospects, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus.
(e) The Company shall have requested and caused KPMG LLP to have
furnished to the Placement Agents, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered
to the Placement Agents), dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Placement Agents, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
and that they have performed a review of the unaudited interim financial
information of each of the Company and The Pillsbury Company
("Pillsbury") for the period ended on and as at the date of the most
recent unaudited financial statements of each the Company and Pillsbury
included or incorporated by reference in the Registration Statement and
Final Prospectus, in accordance with Statement on Auditing Standards No.
71, and stating in effect, except as provided in Schedule I hereto,
that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the unaudited financial
statements of each of the Company and Pillsbury made available by
the Company and its subsidiaries; their limited review, in
accordance with standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial information
for the period ended on and as at the date of the unaudited
financial statements of each of the Company and Pillsbury
included or incorporated by reference in the Registration
Statement and Final Prospectus, as indicated in their report
which is incorporated by reference in the Registration Statement
and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and committees of the Company and the
subsidiaries; a reading of the minutes of the meetings of the
stockholders, directors and committees of Pillsbury; and
inquiries of certain officials of each of the Company and
Pillsbury who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the
13
most recent unaudited financial statements of the Company or
Pillsbury, as the case may be, included or incorporated by
reference in the Registration Statement and Final Prospectus,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement
and the Final Prospectus do not comply as to form in all
material respects with applicable accounting requirements
of the Act and with the related rules and regulations
adopted by the Commission with respect to financial
statements included or incorporated by reference in
quarterly reports on Form 10-Q or in reports on Form 8-K
under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other than
any capsule information), audited or unaudited, included
or incorporated by reference in the Registration Statement
and the Final Prospectus, there were any changes, at a
specified date not more than three Business Days prior to
the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity of the
Company or in consolidated net current assets as compared
with the amounts shown on the consolidated balance sheet
as of the date indicated above included or incorporated by
reference in the Registration Statement and the Final
Prospectus, or for the period from the date one day after
the date above to such specified date there were any
decreases, as compared with the corresponding period in
the preceding year for sales, earnings before taxes and
earnings from joint ventures or in total or per share
amounts of net earnings of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Placement
Agents; and
(3) the information included or incorporated by
reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation)
and Item 503(d) (Ratio of Earnings to Fixed Charges) is
not in conformity with the applicable disclosure
requirements of Regulation S-K;
14
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth under
the captions "Summary," "Risk Factors" and "Ratios of Earnings to
Fixed Charges" in the Final Prospectus, the information included
or incorporated by reference in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated by reference
in the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated by reference in the Company's quarterly reports on
Form 10-Q or reports on Form 8-K, incorporated by reference in
the Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus (the "pro forma
financial statements"); carrying out certain specified
procedures; inquiries of certain officials of the Company who
have responsibility for financial and accounting matters; and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the unaudited pro forma financial
statements do not comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
such statements.
References to the Final Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this
Section 5 or (ii) any change, or any development involving a prospective
change, in or affecting the consolidated financial position,
stockholders' equity or results of operations, prospects, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Placement Agents, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Notes as contemplated by the Registration
Statement and the Final Prospectus.
15
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(h) Prior to the Closing Date, the Company shall have furnished
to the Placement Agents such further information, certificates and
documents as the Placement Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Placement Agents and counsel for the
Placement Agents, this Agreement and all obligations of the Placement Agents
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Placement Agents. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Xxxxx Xxxx & Xxxxxxxx, counsel for the Placement
Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 on the Closing Date.
6. Payment of Expenses.
(a) The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) and each amendment thereto, (ii)
the delivery to the Placement Agents of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale, issuance or
delivery of the Notes, (iii) the fees and disbursements of the Company's
counsel, accountants and other advisors, (iv) the qualification of the Notes
under securities laws in accordance with the provisions of Section 4(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Placement Agents in connection therewith, (v) the printing and delivery to
the Placement Agents of copies of each of the Prospectus and any amendments or
supplements thereto, and (vi) the fees and expenses of any transfer agent or
registrar for the Notes.
(b) If the placement of the Notes provided for herein is not
consummated because any condition to the obligations of the Placement Agents set
forth in Section 5 hereof is not satisfied, because of any termination pursuant
to Section 8 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof, the Company will reimburse the Placement Agents severally on demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
placement of the Notes.
16
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Placement Agents, the directors of each of the Placement Agents and each person
who controls any Placement Agent within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Notes as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Placement Agent specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Placement Agent severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Placement Agent, but
only with reference to written information relating to any Placement Agent
furnished to the Company by or on behalf of such Placement Agent specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Placement
Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
17
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Placement Agents severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Placement Agents may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Placement Agents on the other from the placement of the Notes;
provided, however, that in no case shall any Placement Agent be responsible for
any amount in excess of the commission applicable to the placement of the Notes,
after taking into account the amount of damages such Placement Agent is
otherwise required to pay, if any. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Placement
Agents shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and of the Placement Agents on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Placement Agents shall be deemed to
be equal to the total placement agent commissions, in each case as set forth on
the cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Placement Agents on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company
18
and the Placement Agents agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls a Placement Agent within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of a Placement Agent shall
have the same rights to contribution as such Placement Agent, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Placement Agents, by notice given to the Company
prior to delivery of and payment for the Notes, if at any time prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) there shall have
occurred any material disruption in securities clearance or settlement services,
(iii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Placement Agents,
impractical or inadvisable to proceed with the offering or delivery of the Notes
as contemplated by the Final Prospectus.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and of any Placement Agent set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Placement Agents or the Company or any of the
officers, directors, employees, agents or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Notes. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Placement Agents, will be mailed,
delivered or telefaxed to each of Banc of America Securities LLC, Attention:
Transaction Services (fax no.: (000) 000-0000) and X.X. Xxxxxx Securities Inc.,
Attn: Investment Grade Syndicate Desk, 8th Floor (fax no.: 000-000-0000) and
confirmed to Banc of America Securities LLC, at 0 Xxxx 00xx Xxxxxx, 0xx xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Transaction Services and X.X. Xxxxxx
Securities Inc., at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Investment Grade
Syndicate Desk, 8th Floor; or, if sent to the Company, will be mailed, delivered
or telefaxed to General Xxxxx, Inc., General Counsel (fax no.: (000) 000-0000)
and confirmed to General Xxxxx, Inc., General Counsel, Number Xxx Xxxxxxx Xxxxx
Xxxx., Xxxxxxxxxxx, Xxxxxxxxx 00000, with a copy to
19
General Xxxxx, Inc., Treasury Department, Number Xxx Xxxxxxx Xxxxx Xxxx.,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn.: Treasurer (fax no.: (000) 000-0000).
11. Successors. Nothing expressed herein is intended or shall be
construed to give any entity or other person any legal or equitable rights,
remedy or claim hereunder or in respect hereof or any provision herein
contained, other than the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 7 hereof, and their heirs and legal representatives; provided, however,
that the Depositor and the Certificates Trustee (on behalf of holders and
beneficial owners of Certificates) are third party beneficiaries solely with
respect to the Company's obligation to accept in whole each offer from the
Depositor to purchase Notes at a price at least equal to 100% of the principal
amount thereof that a Placement Agent orally communicates to the Company, not to
exceed $135,000,000 aggregate principal amount of Notes.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
13. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
14. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
15. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Closing Date" shall mean the date and time specified in Schedule
I hereto or such other date and time agreed to by the Company and the
Placement Agents.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
20
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating
to the Notes that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus as may be amended at
the date of the Final Prospectus.
"Material Subsidiaries" shall mean the Company's significant
subsidiaries as defined by Rule 1-02 of Regulation S-X.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement which describes the Notes and the offering thereof
and is used prior to filing of the Final Prospectus, together with the
Basic Prospectus as may be amended at the date of the Preliminary Final
Prospectus.
"Prospectus" shall mean the Final Prospectus and the Preliminary
Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
as amended and the rules and regulations of the Commission promulgated
thereunder.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Placement Agents.
Very truly yours,
GENERAL XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
22
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified above
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Principal
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
FLEET SECURITIES, INC.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
HSBC SECURITIES (USA) INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
WACHOVIA SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
23
SCHEDULE I
Registration Number: 333-75808
Title : 3.901% Notes due 2007
Principal amount to be issued: $135,000,000
Current ratings: Xxxxx'x Investors Service, Inc.: Baa2
Standard & Poor's Ratings Services: BBB+
Interest Rate: 3.901% per annum
Interest Payment Date(s): Each May 30 and November 30, commencing
May 30, 2003
Record Dates: The close of business on May 15 and November 15
preceding the relevant Interest Payment Date
Maturity Date: November 30, 2007
Redemption Provisions: The Notes will be redeemable as a whole at
any time or in part, from time to time, at
the Company's option, at a redemption price
equal to the greater of: (1) the principal
amount being redeemed or (2) the sum of the
present values of the remaining scheduled
payments of principal and interest on the
Notes being redeemed, discounted to the
redemption date on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the treasury rate
(as defined in the Final Prospectus) plus 15
basis points and accrued interest to the
redemption date.
Sinking Fund Requirements: None
Delayed Delivery Contracts: Not authorized
Form: Global Note through the facilities of The
Depository Trust Company
Listing: None
Closing Date and Location: November 20, 2002, 10:00 a.m.,
New York City time
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxx
Xxx Xxxx, XX 00000
24
SCHEDULE II
PLACEMENT AGENT AGGREGATE PRINCIPAL AMOUNT OF NOTES
--------------- -----------------------------------
Banc of America Securities LLC....................... $ 67,500,000
X.X. Xxxxxx Securities Inc. ......................... $ 54,000,000
Fleet Securities, Inc................................ $ 4,590,000
HSBC Securities (USA) Inc. .......................... $ 4,455,000
Wachovia Securities Inc. ........................... $ 4,455,000
TOTAL................................................ $135,000,000
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