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EXHIBIT 10.1
EXECUTION COPY
UNITED PARCEL SERVICE, INC.
$500,000,000
UPS NOTES
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
November 17, 2006
The Purchasing Agents Listed in
Schedule I hereto
Dear Sirs:
United Parcel Service, Inc., a Delaware corporation (the
"COMPANY"),
proposes to issue and sell up to $500,000,000 aggregate principal
amount of its
UPS Notes (the "NOTES") with maturities of 9 months or more from
date of issue
pursuant to the provisions of the Indenture, dated as of August 26,
2003 (the
"INDENTURE"), between the Company and Citibank, N.A., as Trustee
(the
"Trustee"). The Notes shall have the maturity ranges, interest
rates and other
terms set forth in the Prospectus referred to below as it may be
amended or
supplemented from time to time. The Notes will be issued, and the
terms thereof
established, from time to time by the Company in accordance with
the Indenture.
Subject to the terms and conditions contained in this Selling
Agent
Agreement (the "AGREEMENT") and to the reservation by the Company
of the right
to sell up to $50,000,000 aggregate principal amount of Notes
directly on its
own behalf or indirectly through agents other than the Agents (as
hereinafter
defined) in up to ten separate transactions, the Company hereby (i)
appoints
each of you as an agent of the Company (individually, an "AGENT"
and
collectively the "AGENTS") for the purpose of soliciting and
receiving offers to
purchase Notes from the Company and (ii) agrees that whenever the
Company
determines to sell Notes pursuant to this Agreement, such Notes
shall be sold
pursuant to a Terms Agreement (as defined in Section IV(b) below)
relating to
such sale in accordance with the provisions of Section IV(b) hereof
between the
Company and LaSalle Financial Services, Inc. (the "PURCHASING
AGENT"), with the
Purchasing Agent purchasing such Notes as principal for resale to
others. You
hereby agree to use your reasonable best efforts to solicit and
receive offers
to purchase Notes upon terms acceptable to the Company at such
times and in such
amounts as the Company shall from time to time specify and in
accordance with
the terms hereof. This Agreement shall not be construed to create
either an
obligation on the part of the Company to sell any Notes or an
obligation of any
of the Agents to purchase Notes.
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I.
The
Company has filed with the Securities and Exchange Commission
(the
"COMMISSION") a registration statement on Form S-3 (No. 333-108272)
relating to
the Notes and the offering thereof, from time to time, in
accordance with Rule
415 under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). The
term "REGISTRATION STATEMENT" as used with respect to a particular
issue of the
Notes means the registration statement, as from time to time
amended or
supplemented, at the time of its effectiveness for purposes of
Section 11 of the
Securities Act as such section applies to the Company and the
Agents for such
offering of Notes pursuant to Rule 430B(f)(1) and Rule 430B(f)(2)
under the
Securities Act (the "EFFECTIVE TIME"), including (i) all documents
then filed as
a part thereof or incorporated or deemed to be incorporated by
reference therein
and (ii) any information contained or incorporated by reference in
a prospectus
filed with the Commission pursuant to Rule 424(b) under the
Securities Act, to
the extent such information is deemed, pursuant to Rule 430B(f)(1)
under the
Securities Act, to be part of the Registration Statement at the
Effective Time.
The Registration Statement was declared effective by the Commission
on September
8, 2003, and the Indenture has been qualified under the Trust
Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"). The Company has
prepared or will
promptly prepare for filing with, or transmission for filing to,
the Commission,
pursuant to Rule 424 under the Securities Act, a prospectus
supplement (the
"PROSPECTUS SUPPLEMENT") for the purpose of supplying information
in respect of
the public offering of the Notes. The term "BASE PROSPECTUS" means
the
prospectus included in the Registration Statement exclusive of any
supplement
filed pursuant to Rule 424. The Base Prospectus, as supplemented by
the
Prospectus Supplement, is referred to herein as the "PROGRAM
PROSPECTUS." Prior
to the determination of the final terms of a particular issue of
the Notes the
term "PROSPECTUS" means the Program Prospectus, and after such
determination,
such document plus a supplement (the "PRICING SUPPLEMENT") prepared
for the sale
of a particular issue of the Notes and including a description of
the final
terms of the particular issue of Notes and the terms of the
offering thereof.
The term "PERMITTED FREE WRITING PROSPECTUS" as used herein means
any "issuer
free writing prospectus," as defined in Rule 433 under the
Securities Act ("RULE
433"), the form of which is attached as Exhibit D and relating to
the Notes and
intended for general distribution to prospective investors that (i)
is required
to be filed with the Commission by the Company, or (ii) is exempt
from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of
the Notes or
of the offering that does not reflect the final terms, in each case
in the form
filed or required to be filed with the Commission or, if not
required to be
filed, in the form retained in the Company's records pursuant to
Rule 433(g).
The "PRICING EFFECTIVE TIME" as used herein shall occur when either
(i) a
Permitted Free Writing Prospectus with the final terms of the
offering and the
Program Prospectus, or (ii) the Pricing Supplement, prepared by the
Company, and
the Program Prospectus, shall be made available to the Agents for
electronic
delivery to purchasers (the documentation in (i) or (ii), as
applicable, in the
aggregate, the "PRICING DISCLOSURE MATERIAL").
II.
Your
obligations hereunder are subject to the following conditions, each
of
which shall be met on such date as you and the Company shall
subsequently fix
for the commencement of your obligations hereunder (the
"COMMENCEMENT DATE"):
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(a) No litigation or proceeding shall be threatened or pending
to
restrain or enjoin the issuance or delivery of the Notes, or which
in any
way
questions or affects the validity of the Notes. No stop order
suspending the effectiveness of the Registration Statement shall be
in
effect, and no proceedings for such purpose shall be pending before
or
threatened by the Commission. There shall have been no material
adverse
change in the consolidated financial condition of the Company and
its
subsidiaries, considered as a whole (a "MATERIAL ADVERSE CHANGE"),
from
that
set forth in the Registration Statement and the Prospectus
(excluding
any
amendments or supplements to the Prospectus since the relevant
Pricing
Effective Time, if any).
(b) You shall have received on the Commencement Date a certificate
of
the
Company dated such Commencement Date and signed by an executive
officer
of
the Company to the foregoing effect. The officer signing such
certificate may rely upon the best of his knowledge as to
proceedings
threatened.
(c) You shall have received a favorable opinion of King &
Spalding
LLP,
counsel for the Company, dated the Commencement Date, to the
effect
that:
(i) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware with the
corporate
power and authority to own its properties and conduct its business
as
described in the Prospectus.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement
of the Company, enforceable against the Company in accordance with
its
terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the
rights and remedies of creditors generally and to the effect of
general principles of equity; and the Indenture has been duly
qualified under the Trust Indenture Act.
(iii) The Notes have been duly authorized and, when the terms
thereof have been established in accordance with the Indenture
and
when executed, authenticated, issued and delivered in the
manner
provided for in the Indenture against payment therefor, will
constitute valid and binding obligations of the Company,
enforceable
against the Company in accordance with their terms, subject as
to
enforcement of
remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights and remedies of
creditors generally and to the effect of general principles of
equity.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) No authorization, consent or approval of, or registration
or
filing with, any governmental or public body or regulatory
authority
is required on the part of the Company for the issuance of the
Notes
in accordance with the Indenture or the sale of the Notes in
accordance with this Agreement other than
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the registration of the Notes under the Securities Act,
qualification
of the Indenture under the Trust Indenture Act and compliance with
the
securities or Blue Sky laws of various jurisdictions.
(vi) The statements in the Prospectus under the captions
"Description of Debt Securities", "Description of Notes" and
"Certain
United States Federal Income Tax Considerations", insofar as
such
statements constitute summaries of the documents (or provisions
thereof) or statutes (or provisions thereof) referred to
therein,
fairly present the information required to be described with
respect
to such documents (or provisions thereof) or statutes (or
provisions
thereof) and fairly summarize in all material respects such
documents
(or provisions thereof) or statutes (or provisions thereof).
(vii) The Indenture and the form of the Notes conform in all
material respects to the descriptions thereof in the
Prospectus.
(viii) The Registration Statement has become effective under
the
Securities Act, and, to our knowledge, no stop order suspending
the
effectiveness of the Registration Statement or of any part thereof
has
been issued and no proceedings for that purpose have been
instituted
or are pending under the Securities Act.
(ix)(A) Each document, if any, filed pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
incorporated by reference in the Prospectus, when such document
was
filed with the Commission, complied as to form in all material
respects with the Exchange Act and the rules and regulations
thereunder; and (B) the Registration Statement, as of its
effective
date, and the Prospectus, as of its issue date and the
Commencement
Date, complied as to form in all material respects with the
requirements of the Trust Indenture Act and the Securities Act and
the
rules and regulations thereunder (in each case other than the
financial statements and notes thereto, the financial statement
schedules and the other financial and statistical data and Form
T-1
included or incorporated by reference therein).
In addition, King & Spalding LLP shall state that, in its
capacity as
counsel for the Company, it has rendered legal advice and
assistance in
connection with the Company's preparation of the Registration
Statement and
the
Prospectus. Rendering such assistance included, among other
things,
discussions and inquiries concerning various legal matters, the
review of
certain documents, and participating in conferences with officers
and other
representatives of the Company, representatives of the
Company's
independent auditors and representatives of the Agents and their
counsel
during which the contents of the Registration Statement and the
Prospectus
and
related matters were discussed and reviewed. Such counsel shall
state
that
although it is not passing upon and does not assume any
responsibility
for
the accuracy, completeness or fairness of the statements contained
in
the
Registration Statement or the Prospectus, on the basis of the
information that was developed in the course of the performance of
the
services referred to above, nothing came to their attention that
causes
them
to believe that (A) each part of
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the
Registration Statement (other than the financial statements and
notes
thereto, the financial statement schedules and the other financial
and
statistical data and the Form T-1 included or incorporated by
reference
therein), at the time it became effective, and if any amendment to
the
Registration Statement has been filed with the Commission
subsequent to
such
date, at the time of the most recent filing, contained an
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 (B) the Prospectus (other than the financial
statements and
notes thereto, the financial statement schedules and the other
financial
and
statistical data included or incorporated by reference therein), as
of
its
issue date and as of the Commencement Date, contained or contains
any
untrue statement of a material fact or omits to state any material
fact
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading.
(d) You shall have received a favorable opinion of counsel in
the
Legal Department of
the Company, reasonably satisfactory to the Agents,
dated the Commencement Date, to the effect that:
(i) The Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which it owns
or
leases material properties or in which the conduct of its
business
requires such qualification and in which the failure to so
qualify
would have a material adverse effect on the Company and its
subsidiaries considered as a whole.
(ii) The execution and delivery of the Indenture, the issuance
of
the Notes in accordance with the Indenture and the sale of the
Notes
pursuant to this Agreement: (A) do not and will not result in
any
violation of the certificate of incorporation or bylaws of the
Company; (B) to such counsel's knowledge, do not and will not
result
in a breach or violation of any of the terms and provisions of,
or
constitute a default under, any agreement or other instrument
binding
upon the Company or any subsidiary of the Company that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation
S-X
under the Securities Act (each, a "SIGNIFICANT SUBSIDIARY") that
is
material to the Company and its subsidiaries considered as a
whole;
and (C) do not and will not result in a violation of any
existing
material law, rule or regulation applicable to the Company or any
of
its subsidiaries or any material judgment, order, writ, injunction
or
decree known to such counsel of any governmental authority or
court
having jurisdiction over the Company or any of its
subsidiaries.
(iii) The Company has the corporate power and authority to
authorize, issue and sell the Notes as contemplated by this
Agreement.
(iv) The statements in the (A) documents incorporated by
reference into the Prospectus under the captions "Government
Regulation" and "Legal Proceedings" in the Company's most
recently
filed Annual Report on Form 10-K and Part II, Item 1 of the
Company's
subsequently filed Quarterly Reports on Form 10-Q, if any (or
comparable paragraphs under the caption "Liquidity and Capital
Resources" in Part I, Item 2 of such Quarterly Reports on Form
10-Q,
as
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the case may be), and (B) the Registration Statement under Item
15,
insofar as such statements purport to constitute summaries of
the
documents (or provisions thereof), statutes (or provisions thereof)
or
legal proceedings referred to therein, fairly present the
information
required to be described with respect to such documents (or
provisions
thereof), statutes (or provisions thereof) or legal proceedings
and
fairly summarize in all material respects such documents (or
provisions thereof), statutes (or provisions thereof), or legal
proceedings.
(v) To such counsel's knowledge, there are no (A) legal or
governmental proceedings pending or threatened to which the Company
or
any Significant Subsidiary is a party, or to which any of the
properties of the Company or any Significant Subsidiary is
subject,
that are required to be described in the Registration Statement or
the
Prospectus and are not so described or (B) statutes, regulations
or
contracts that are required to be described in the Registration
Statement or the Prospectus or contracts that are required to be
filed
as exhibits to the Registration Statement that are not described
or
filed as required.
(e) You shall have received on the Commencement Date a letter
dated
the
Commencement Date from Deloitte & Touche LLP, independent
auditors,
containing statements and information of the type ordinarily
included in
auditors' "comfort letters" to underwriters with respect to the
financial
statements and certain financial information contained in or
incorporated
by
reference into the Registration Statement and the Prospectus.
(f) You shall have received a favorable opinion of Gibson, Dunn
&
Crutcher LLP, counsel for the Agents, dated such Commencement Date,
to the
effect set forth in Section II(c) in clauses (ii), (iii), (iv),
(vii) and
(ix)(B) and the paragraph following clause (ix).
(g) You shall have received a certificate of the secretary or
assistant secretary of the Company as to the Certificate of
Incorporation
of
the Company, the Bylaws of the Company and the resolutions
authorizing
the
issuance and sale of the Notes and certain related matters.
The
obligations of the Purchasing Agent to purchase Notes as
principal,
both under this Agreement and under any Terms Agreement, are
subject to the
conditions that: (i) no litigation or proceeding shall be pending
or, to the
Company's knowledge, threatened to restrain or enjoin the issuance
or delivery
of the Notes, or which in any way questions or affects the validity
of the
Notes; (ii) no stop order suspending the effectiveness of the
Registration
Statement shall be in effect and no proceedings for such purpose or
pursuant to
Section 8A under the Securities Act shall be pending before or, to
the Company's
knowledge, threatened by the Commission; and (iii) there shall have
been no
Material Adverse Change in the consolidated financial condition of
the Company
and its subsidiaries, considered as a whole, from that set forth in
the
Registration Statement and the Prospectus, each of which conditions
shall be met
on the corresponding Settlement Date (as defined in Section IV(b)
hereof).
Further, if specifically called for by any written agreement by the
Purchasing
Agent to purchase Notes as principal, the Purchasing
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Agent's obligations hereunder and under such agreement shall be
subject to such
of the additional conditions set forth in clause (a), as it relates
to the
executive officer's certificate, and clauses (b), (c), (d) and (e)
above, as
agreed to by the parties, each of which such agreed conditions
shall be met on
the corresponding Settlement Date.
III.
In
further consideration of your agreements herein contained, the
Company
covenants as follows:
(a) The Company will furnish you, without charge, a copy of (i)
the
Indenture, (ii) the resolutions of the Board of Directors (or the
Executive
Committee) of the Company authorizing the issuance and sale of the
Notes,
certified by the Secretary or Assistant Secretary of the Company as
having
been
duly adopted, (iii) the Registration Statement including exhibits
and
documents incorporated by reference therein, and (iv) as many
copies of the
Prospectus, any Permitted Free Writing Prospectus, any
documents
incorporated by reference therein, and any supplements and
amendments
thereto as you may reasonably request.
(b) Before amending or supplementing the Registration Statement,
the
Prospectus or the Pricing Disclosure Material (other than
amendments or
supplements to change interest rates and other than amendments
or
supplements in the form of the Company's periodic filings to be
filed with
the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act that are incorporated by reference in the Prospectus
and the
Pricing Disclosure Material), the Company will furnish you a copy
of each
such
proposed amendment or supplement and afford you a reasonable
opportunity to comment on any such proposed amendment or
supplement.
(c) The Company will furnish you copies of each amendment to
the
Registration Statement and of each amendment and supplement to
the
Prospectus or the Pricing Disclosure Material in such quantities as
you may
from
time to time reasonably request. If at any time when the delivery
of a
Prospectus shall be required by law in connection with sales of any
of the
Notes, either (i) any event shall have occurred as a result of
which the
Prospectus or the Pricing Disclosure Material as then amended
or
supplemented would include any untrue statement of a material fact
or omit
to
state any material fact necessary in order to make the
statements
therein, in light of the circumstances under which they were made,
not
misleading or (ii) for any other reason it shall be necessary to
amend or
supplement the Prospectus or Pricing Disclosure Material as then
amended or
supplemented or to file under the Exchange Act any document
incorporated by
reference in the Prospectus in order to comply with the Securities
Act or
the
Exchange Act, the Company will (A) notify you to suspend the
solicitation of offers to purchase Notes and if notified by the
Company,
you
shall forthwith suspend such solicitation and cease using the
Prospectus or the Pricing Disclosure Material, as applicable, as
then
amended or supplemented and (B) if the Company notifies you that it
would
like
you to resume the solicitation of offers to purchase Notes,
promptly
prepare and file with the Commission such document incorporated
by
reference in the Prospectus or the Pricing Disclosure Material or
an
amendment or supplement to the Registration
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Statement, the Prospectus or the Pricing Disclosure Material which
will
correct such statement or omission or effect such compliance and
will
provide to you without charge a reasonable number of copies
thereof, which
you
shall use thereafter.
(d) The Company will endeavor to qualify such Notes for offer and
sale
under the securities or Blue Sky laws of such jurisdictions as you
shall
reasonably request and will pay all reasonable expenses (including
fees and
disbursements of counsel) in connection with such qualification;
provided,
that, in connection therewith the Company shall not be required to
qualify
as a
foreign corporation to do business, or to file a general consent
to
service of process, in any jurisdiction.
(e) The Company will make generally available to its security
holders
and
to you as soon as practicable earning statements that satisfy
the
provisions of Section 11(a) of the Securities Act and the rules
and
regulations of the Commission thereunder covering 12 month
periods
beginning, in each case, not later than the first day of the
Company's
fiscal quarter next following the "effective date" (as defined in
Rule 158
under the Securities Act) of the Registration Statement with
respect to
each
sale of Notes.
(f) If the Company and the Purchasing Agent mutually agree to
list
Notes on any stock exchange (a "STOCK EXCHANGE"):
(i) The Company will use its reasonable efforts, in cooperation
with the Purchasing Agent, to cause such Notes to be accepted
for
listing on any such Stock Exchange, in each case as the Company
and
the Purchasing Agent shall deem to be appropriate. In connection
with
any such agreement to list Notes on a Stock Exchange, the
Company
shall use its reasonable efforts to obtain such listing promptly
and
shall furnish any and all documents, instruments, information
and
undertakings that may be reasonably necessary or advisable in order
to
obtain and maintain the listing.
(ii) So long as any Note remains outstanding and listed on a
Stock Exchange, if the Prospectus as then amended or
supplemented
would include any untrue statement of a material fact or omit to
state
any material fact relating to any matter described in the
Prospectus
the inclusion of which was required by the listing rules and
regulations of such Stock Exchange on which any Notes are listed
(the
"LISTING RULES") or by such Stock Exchange, the Company will
provide
to the Purchasing Agent information about the change or matter and
to
amend or supplement the Prospectus in order to comply with the
Listing
Rules or as otherwise requested by the Stock Exchange.
(iii) The Company will use reasonable efforts to comply with
any
undertakings given by it from time to time to any Stock Exchange
on
which any Notes are listed.
(g) The Company promptly will notify the Purchasing Agent in
writing
in
the event that the Company does not have a security listed on the
New
York
Stock Exchange.
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(h) The Company will notify the Agents immediately, and confirm
such
notice in writing, of any change in the rating assigned by any
nationally
recognized statistical rating organization, as such term is defined
in Rule
436(g)(2) under the Securities Act, to the Medium-Term Note Program
under
which the Notes are issued (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.
IV.
(a)
Solicitations as Agent. You hereby agree, as Agents hereunder, to
use
your reasonable best efforts to solicit and receive offers to
purchase Notes
upon the terms and conditions set forth herein and in the
Prospectus and upon
the terms communicated to you from time to time by the Company or
the Purchasing
Agent, as the case may be. For the purpose of such solicitation you
will use the
Prospectus as then amended or supplemented which has been most
recently
distributed to you by the Company, and you will solicit offers to
purchase only
as permitted or contemplated thereby and herein. The Company
reserves the right,
in its sole discretion, to suspend solicitation of offers to
purchase Notes at
any time for any period of time or permanently. Upon receipt of
notice of any
such suspension (which may be given orally) from the Company, you
will as soon
as practicable, but in any event no later than one business day
after receipt of
such instructions, suspend solicitation of offers to purchase until
such time as
the Company has advised you that such solicitation may be resumed.
In addition,
the Company reserves the right to sell, and may solicit and accept
offers to
purchase, up to $50,000,000 aggregate principal amount of Notes
directly on its
own behalf in up to ten separate transactions; and, in the case of
any such sale
not resulting from a solicitation made by any Agent, no Concession
(as defined
below) will be payable with respect to such sale.
You
are authorized to solicit orders for the Notes only in
denominations of
$1,000 or more (in multiples of $1,000). You are not authorized to
appoint
subagents or to engage the service of any other broker or dealer in
connection
with the offer or sale of the Notes without the consent of the
Company;
provided, however, the Purchasing Agent may engage the service of
any other
broker or dealer without the consent of the Company. The Purchasing
Agent,
however, on a periodic basis upon request, will provide the Company
with a list
of those brokers or dealers so engaged. In addition, unless
otherwise instructed
by the Company, the Purchasing Agent shall communicate to the
Company, orally or
in writing, the aggregate amount of each offer to purchase each
proposed series
or issuance of Notes. The Company shall have the sole right to
accept offers to
purchase Notes offered through you and may reject any proposed
purchase of Notes
as a whole or in part. You shall have the right, in your discretion
reasonably
exercised, to reject any proposed purchase of Notes, as a whole or
in part, and
any such rejection shall not be deemed a breach of your agreements
contained
herein.
The
Company agrees to pay the Purchasing Agent, as consideration
for
soliciting offers to purchase Notes, a concession in the form of a
discount
equal to the percentages of the principal amount of each Note sold
not in excess
of the concession set forth in Exhibit A (the "CONCESSION").
Notwithstanding the
foregoing, for Notes that bear a zero interest rate and are
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issued at a substantial discount from the principal amount payable
at the
Maturity Date (a "ZERO-COUPON NOTE"), the Company agrees to pay the
Purchasing
Agent, as consideration for soliciting the sale of the Zero-Coupon
Notes, a
Concession in the form of a discount equal to the percentages of
the initial
offering price of each Zero-Coupon Note sold not in excess of the
Concession set
forth in Exhibit A. The Purchasing Agent and the other Agents will
share the
Concession in such proportions as they may agree.
Except as provided in Section IV(b) hereof, in soliciting offers
to
purchase Notes from the Company, you are acting solely as agent for
the Company
and not as principal. When acting on behalf of the Company on an
agency basis,
you will make reasonable efforts to assist the Company in obtaining
performance
by each purchaser whose offer to purchase Notes has been accepted
by the
Company, but you shall not have any liability to the Company in the
event such
purchase is not consummated for any reason, other than to repay to
the Company
any Concession with respect thereto.
(b)
Purchases as Principal. Each sale of Notes to an Agent as
principal
shall be made in accordance with the terms of this Agreement and a
separate
agreement, substantially in the form of Exhibit C, to be entered
into on behalf
of such Agent(s) by the Purchasing Agent, which will provide for
the sale of
such Notes to, and the purchase and reoffering thereof by, the
Purchasing Agent
as principal. Each such separate agreement (which may be an oral
agreement and
confirmed in writing as described below between the Purchasing
Agent and the
Company) is herein referred to as a "TERMS AGREEMENT". A Terms
Agreement may
also specify certain provisions relating to the reoffering of such
Notes by the
Purchasing Agent. The Terms Agreement shall not be effective, and
the Agents
agree that no contract of sale may be entered into by the Agents in
respect of a
sale of Notes as described in this section, until the Company has
made the
Pricing Disclosure Material available to the Agents and the Pricing
Effective
Time occurs. The Purchasing Agent's agreement to purchase Notes
pursuant to any
Terms Agreement shall be deemed to have been made on the basis of
the
representations, warranties and agreements of the Company herein
contained and
shall be subject to the terms and conditions herein set forth.
Except pursuant
to a Terms Agreement, under no circumstances shall you be obligated
to purchase
any Notes for your own account. Each Terms Agreement, whether oral
(and
confirmed in writing which may be by facsimile transmission) or in
writing,
shall describe the Notes to be purchased pursuant thereto by the
Purchasing
Agent as principal, and may specify, among other things, the
principal amount of
Notes to be purchased, the interest rate or formula and maturity
date or dates
of such Notes, the interest payment dates, if any, the price to be
paid to the
Company for such Notes, the initial public offering price at which
the Notes are
proposed to be reoffered, and the time and place of delivery of and
payment for
such Notes (the "SETTLEMENT DATE"), whether the Notes provide for a
survivor's
option or for optional redemption by the Company and on what terms
and
conditions, and any other relevant terms.
In
connection with the resale of the purchased Notes, you are not
authorized, without the consent of the Company, to appoint
subagents or to
engage the service of any other broker or dealer, nor may you
reallow any
portion of the discount paid to you by the Company in excess of the
designated
reallowance portion; provided, however, that the Purchasing Agent
may engage the
service of any other broker or dealer without the consent of the
Company. The
Purchasing Agent however, on a periodic basis, will provide the
Company with a
list of those brokers or
10
<PAGE>
dealers so engaged. Unless authorized by the Purchasing Agent in
each instance,
no Agent will purchase and sell Notes for which an order from a
client has not
been received.
Each
purchase of Notes by the Purchasing Agent from the Company shall be
at
a discount from the principal amount of each such Note on the date
of issue not
in excess of the applicable Concession set forth in Exhibit A.
Notwithstanding
the foregoing, for Zero-Coupon Notes, each purchase of Zero-Coupon
Notes by the
Purchasing Agent from the Company shall be at a discount from the
initial
offering price of each such Note on the date of issue not in excess
of the
applicable Concession set forth in Exhibit A.
(c)
Public Offering Price. Unless otherwise authorized by the Company,
all
Notes, other than Zero Coupon Notes, shall be sold to the public at
a purchase
price not to exceed 100% of the principal amount thereof, plus
accrued interest,
if any. Zero-Coupon Notes shall be sold to the public at a purchase
price no
greater than an amount, expressed as a percentage of the principal
face amount
of such Notes, equal to (i) the net proceeds to the Company on the
sale of such
Notes, plus (ii) the Concession, plus (iii) accrued interest, if
any. Such
purchase price shall be set forth in the confirmation statement of
the Agent
responsible for such sale and delivered to the purchaser along with
a notice of
availability (pursuant to Rule 172 of the Securities Act) or a copy
of the
Pricing Disclosure Material.
(d)
Procedures. Procedural details relating to the issue and delivery
of,
and the solicitation of offers to purchase and payment for, the
Notes, whether
under Section IV(a) or IV(b), are set forth in the Administrative
Procedures
attached hereto as Exhibit B, as amended from time to time (the
"PROCEDURES").
Unless otherwise provided in a Terms Agreement, the provisions of
the Procedures
shall apply to all transactions contemplated hereunder. You and the
Company each
agree to perform the respective duties and obligations specifically
provided to
be performed by each in the Procedures. The Procedures may only be
amended by
written agreement of the Company and each of you.
(e)
Information. The Company authorizes the Agents, in connection
with
their solicitation of purchase of the Notes, to use only the
information taken
from the Registration Statement, the Prospectus and any Permitted
Free Writing
Prospectus, and the documents incorporated therein by reference,
and each of the
Agents agrees that it has and will have sole responsibility for the
completeness
and accuracy of all other information, written or oral, furnished
by such Agent
and its agents and employees to purchasers and prospective
purchasers of the
Notes.
(f)
Prospectus Delivery. You shall, as required by applicable law,
furnish
to each person to whom you sell or deliver Notes a copy of the
Prospectus (as
then amended or supplemented) or, if delivery of the Prospectus is
not required
by applicable law, inform each such person that a copy thereof (as
then amended
or supplemented) will be made available upon request. You are not
authorized to
give any information or to make any representation not contained in
the
Prospectus or the documents incorporated by reference or
specifically referred
to therein in connection with the offer and sale of the Notes. You
will not use
any marketing materials other than the Prospectus and any Permitted
Free Writing
Prospectus in connection with any offer or sale of the Notes except
for
marketing materials prepared by the Company, if any, and furnished
to you
together with written authorization from the Company to the
11
<PAGE>
Purchasing Agent to use the same hereunder. The Company hereby
grants the
Purchasing Agent a limited, non-exclusive, non-sublicenseable,
non-assignable,
revocable worldwide right and license to use the Company's name and
logo (the
"Logo") as displayed on Exhibit F in "Marketing Materials" that
include only (i)
brochures and (ii) the Purchasing Agent's website to identify the
Company as a
member of the Direct Access Notes Program in the Purchasing Agent's
general
materials and marketing objectives relating to the Direct Access
Notes Program
(the "MARKETING MATERIALS"). The Purchasing Agent shall not use the
Company's
name or Logo unless approved in writing by the Company prior to
their use. Any
approvals from or authorizations by the Company under this Section
IV(e) may be
transmitted electronically by the Company to the Purchasing Agent.
The
Purchasing Agent understands and agrees that the rights granted by
the Company
to use and display the Company's name and Logo convey to the
Purchasing Agent no
greater rights than those expressly stated herein and that, in
particular, the
Purchasing Agent shall at no time acquire any legal or equitable
right, title or
interest of any sort in the Company's name and Logo or in the use
thereof.
Unless terminated earlier, the Purchasing Agent's right to use the
Company's
name and Logo shall cease upon the end of the term of this
Agreement.
(g)
Compliance With Laws. The Purchasing Agent is aware that other
than
registering the Notes under the Securities Act, no action has been
or will be
taken by the Company that would permit the offer, sale or purchase
of the Notes
or possession or distribution of the Prospectus or any other
offering material
relating to the Notes in any jurisdiction where action for that
purpose is
required. Accordingly, the Purchasing Agent agrees that it will
obtain any
consent, approval or permission required for the offer, sale or
purchase by it
of Notes under the laws and regulations in force in any such
jurisdiction to
which it is subject or in which it makes such offer, sale or
purchase.
V.
The
Company represents and warrants to the Agents that as of the
date
hereof, as of each date on which the Company accepts an offer to
purchase Notes
(including any purchase by the Purchasing Agent as principal,
pursuant to a
Terms Agreement or otherwise), as of each date the Company issues
and sells
Notes (each of the times referenced above being referred to herein
as a
"REPRESENTATION DATE"):
(a)(i) Each document, if any, filed, or to be filed, pursuant to
the
Exchange Act and incorporated by reference in the Prospectus
complied as to
form
when so filed, or will on the applicable Representation Date comply
as
to
form, in all material respects with the Exchange Act and the rules
and
regulations thereunder; (ii) the Registration Statement, as of the
latest
effective date thereof, did not contain any 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; (iii)
each
Prospectus, if any, filed pursuant to Rule 424 under the Securities
Act,
complied as to form when so filed in all material respects with
the
Securities Act and the applicable rules and regulations thereunder;
(iv)
the
Registration Statement and each Prospectus comply as to form and,
as
amended or supplemented, if applicable, will on the applicable
Representation Date comply as to form in all material respects with
the
Securities Act and the applicable rules and regulations thereunder;
(v) the
Registration Statement and any amendment thereto, as of
12
<PAGE>
the
applicable effective date of the Registration Statement or any
such
amendment, did 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; and (vi) the Prospectus and
any
amendment or supplement thereto, as of the date of the Prospectus
or any
such
amendment or supplement, do not contain 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; and (vi) at the time made available by
the
Company to the Agents for electronic delivery with respect to the
Notes,
the
Pricing Disclosure Material will not contain 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 this representation
and
warranty shall not apply to (i) any statements or omissions made
in
reliance upon and in conformity with information furnished in
writing to
the
Company by any Agent expressly for use in the Prospectus as amended
or
supplemented relating to the Notes or (ii) the Statement of
Eligibility on
Form T-1 of the
Trustee.
(b) The Company has been duly incorporated and is validly existing
as
a
corporation in good standing under the laws of the State of
Delaware,
with
corporate power and authority to own its properties and conduct
its
business as described in the Prospectus and the Pricing
Disclosure
Material, and has been duly qualified as a foreign corporation for
the
transaction of business and is in good standing under the laws of
each
other jurisdiction in which it owns or leases properties, or
conducts any
business so as to require such qualification, or is subject to no
material
liability or disability by reason of the failure to be so qualified
or in
good
standing in any such jurisdiction.
(c) The Company has an authorized capitalization as set forth in
the
financial statements incorporated by reference in the Prospectus
and the
Pricing Disclosure Material, and all of the issued shares of
capital stock
of
the Company have been duly and validly authorized and issued and
are
fully paid and non-assessable.
(d) The Notes have been duly authorized and, when the terms
thereof
have
been established in accordance with the Indenture and when
executed,
authenticated, issued and delivered in the manner provided for in
the
Indenture against payment therefor, will constitute valid and
binding
obligations of the Company, enforceable against the Company in
accordance
with
their terms, subject, as to enforcement of remedies, to
bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights
and
remedies of creditors generally and to the effect of general
principles
of
equity. The Indenture has been duly authorized, executed and
delivered
by
the Company and constitutes a valid and binding agreement of
the
Company, enforceable against the Company in accordance with its
terms,
subject, as to enforcement of remedies, to bankruptcy,
insolvency,
reorganization, moratorium or similar laws affecting the rights
and
remedies of creditors generally and to the effect of general
principles of
equity. The Indenture has been duly qualified under the Trust
Indenture
Act.
The Indenture conforms and the Notes of any particular issuance
of
Notes will conform in all material respects to the descriptions
thereof
contained in the Prospectus and the Pricing Disclosure Material as
amended
or
supplemented that relate to such Notes.
13
<PAGE>
(e) Other than as set forth in the Prospectus and the Pricing
Disclosure Material, the Company and each of its subsidiaries
have
conducted their businesses and are in compliance in all material
respects
with
all applicable federal and state laws and regulations, except for
any
conduct or noncompliance which would not have a material adverse
effect on
the
Company and its subsidiaries considered as a whole.
(f) The issue and sale of the Notes, the compliance by the
Company
with
the provisions of the Notes, the Indenture, this Agreement and
any
Terms Agreement and the consummation of the transactions herein and
therein
contemplated will not conflict with or result in a breach or
violation of
any
of the terms or provisions of, or constitute a default under: (i)
the
Certificate of Incorporation or By-Laws of the Company; (ii) any
indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to
which the Company or any of its subsidiaries is a party or by which
the
Company or any of its subsidiaries is bound or to which any of the
property
or
assets of the Company or any of its subsidiaries is subject; or
(iii)
any
statute or any order, rule or regulation of any court or
governmental
agency or body having jurisdiction over the Company or any of
its
properties, except for such conflicts, breaches, violations or
defaults
under subsections (ii) or (iii) that would not result in a material
adverse
effect on the Company and its subsidiaries considered as a whole.
No
consent, approval, authorization, order, registration or
qualification of
or
with any court or governmental agency or body is required for the
issue
and
sale of the Notes or the consummation by the Company of the
other
transactions contemplated by this Agreement, any Terms Agreement or
the
Indenture, except such as have been obtained, or will have been
obtained
prior to the Commencement Date, under the Securities Act or the
Trust
Indenture Act and such consents, approvals, authorizations,
registrations
or
qualifications as may be required under state securities or Blue
Sky
laws.
(g) Other than as set forth in the Prospectus and the Pricing
Disclosure Material, there are no legal or governmental proceedings
pending
or,
to the Company's knowledge, threatened to which the Company or any
of
its
subsidiaries is a party or to which any property of the Company or
any
of
its subsidiaries is subject, which are of a character that are
required
to
be disclosed in the Prospectus and Pricing Disclosure Material
which
have
not been disclosed therein as required.
(h) Immediately after any sale of Notes by the Company hereunder
or
under any Terms Agreement, the aggregate amount of Notes which
shall have
been
issued and sold by the Company hereunder or under any Terms
Agreement
and
of any other 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.
(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, the Company will not be, required to register as
an
"investment company" as such term is defined in the Investment
Company Act
of
1940, as amended.
14
<PAGE>
(j) The Program, as well as the Notes, are rated Aaa by Moody's
Investors Service, Inc. and AAA by Standard & Poor's Ratings
Services, or,
after the Commencement Date, such other rating as to which the
Company
shall have most recently notified the Agents pursuant to Section
III(h)
hereof.
(k) The Company has not distributed and will not distribute any
offering material in connection with the offering and sales of the
Notes
other than the Prospectus, the Pricing Disclosure Materials, if
any, and a
Permitted Free Writing Prospectus and will not use a Permitted Free
Writing
Prospectus except in
compliance with Rule 433 under the Securities Act and
otherwise in compliance with the Securities Act.
The
above representations and warranties shall not apply to any
statements
or omissions made in the Prospectus or the Pricing Disclosure
Material in
reliance upon and in conformity with information furnished in
writing to the
Company by you expressly for use therein. Each acceptance by the
Company of an
offer for the purchase of Notes and each issuance of Notes shall be
deemed an
affirmation by the Company that the foregoing representations and
warranties are
true and correct at the time, as the case may be, of such
acceptance or of such
issuance, in each case as though expressly made at such time.
The
representations, warranties and covenants of the Company shall
survive the
execution and delivery of this Agreement and the issuance and sale
of the Notes.
Unless the Company has suspended the solicitation of offers to
purchase
Notes pursuant to Section IV(a), each time the Registration
Statement shall be
amended by the filing of a post-effective amendment or a Form 10-K
or Form 10-Q
pursuant to Section 13 of the Exchange Act, or if agreed to by the
Company in
connection with a particular sale of Notes, the Company shall
furnish the Agents
with: (i) a written opinion, dated the date of such amendment,
filing or as
otherwise agreed, of counsel to the Company, in substantially the
form
previously delivered under Sections II(b) and II(c), but modified,
as necessary,
to relate to the Registration Statement and the Prospectus as
amended or
supplemented at such date; (ii) a letter, dated the date of such
amendment,
filing or as otherwise agreed, of Deloitte & Touche LLP,
independent auditors,
in substantially the form previously delivered under Section II(d),
but
modified, as necessary, to relate to the Registration Statement and
the
Prospectus as amended or supplemented at such date; and (iii) a
certificate,
dated the date of such amendment, filing or as otherwise agreed and
signed by an
executive officer of the Company, in substantially the form
previously delivered
under Section II(a), but modified, as necessary, to relate to the
Registration
Statement and the Prospectus as amended or supplemented at such
date.
VI.
(a)
The Company agrees to indemnify and hold harmless you, each person,
if
any, who controls (within the meaning of either Section 15 of the
Securities Act
or Section 20 of the Exchange Act) you and each of your and such
person's
officers and directors against any and all losses, liabilities,
costs or claims
(or actions in respect thereof) to which any of them may become
subject
(including all reasonable legal and other costs of investigating,
disputing or
defending any such claim or action), insofar as such losses,
liabilities, costs
or claims (or actions in respect thereof) arise out of or in
connection with any
untrue statement or alleged untrue statement of a material fact
contained in the
Registration Statement, any Prospectus, any Pricing
15
<PAGE>
Disclosure Materials, any Permitted Free Writing Prospectus or any
amendment or
supplement thereto, or any omission or alleged omission to state
therein a
material fact required to be stated therein or necessary to make
the statements
therein not misleading provided, however that the Company shall not
be liable
for any such loss, liability, cost, claim or action arising from
any statements
or omissions made in reliance on and in conformity with written
information
provided by you to the Company expressly for use in the
Registration Statement,
any Prospectus, any Pricing Disclosure Materials, any Permitted
Free Writing
Prospectus or any amendment or supplement thereto.
(b)
Each Agent severally agrees to indemnify and hold harmless the
Company,
each person, if any, who controls (within the meaning of either
Section 15 of
the Securities Act or Section 20 of the Exchange Act) the Company
and the
Company's and such person's officers and directors from and against
any and all
losses, liabilities, costs or claims (or actions in respect
thereof) to which
any of them may become subject (including all reasonable legal and
other costs
of investigating, disputing or defending any such claim or action),
insofar as
such losses, liabilities, costs or claims (or actions in respect
thereof) arise
out of or in connection with any untrue statement or alleged untrue
statement of
a material fact contained in the Registration Statement, any
Prospectus, any
Pricing Disclosure Materials, any Permitted Free Writing Prospectus
or any
amendment or supplement thereto, or any omission or alleged
omission to state
therein a material fact necessary to make the statements therein
not misleading,
in each case only to the extent that such untrue statement or
alleged untrue
statement or omission or alleged omission was made in reliance on
and in
conformity with written information furnished to the Company by
such Agent
expressly for use therein.
(c)
If any claim, demand, action or proceeding (including any
governmental
investigation) shall be brought or alleged against an indemnified
party in
respect of which indemnity is to be sought against an indemnifying
party
pursuant to the preceding paragraphs, the indemnified party shall,
promptly
after receipt of notice of the commencement of any such claim,
demand, action or
proceeding, notify the indemnifying party in writing of the
commencement of such
claim, demand, action or proceeding, enclosing a copy of all papers
served, if
any; provided, that, the omission to so notify such indemnifying
party will not
relieve the indemnifying party from any liability that it may have
to any
indemnified party under the foregoing provisions of this Section VI
unless, and
only to the extent that, such omission results in the forfeiture of
substantive
rights or defenses by the indemnifying party. In case any such
action is brought
against any indemnified party and it notifies the indemnifying
party of the
commencement thereof, the indemnifying party will be entitled to
participate
therein and, to the extent that it may wish, jointly with any other
indemnifying
party similarly notified, to assume the defense thereof, with
counsel reasonably
satisfactory to such indemnified party (who shall not, except with
the consent
of the indemnified party, be counsel to the indemnifying party),
and after
notice from the indemnifying party to such indemnified party of its
election so
to assume the defense thereof, the indemnifying party will not be
liable to such
indemnified party under this Section VI for any legal or other
expenses
subsequently incurred by such indemnified party in connection with
the defense
thereof other than reasonable costs of investigation. In any such
proceeding,
any indemnified party shall have the right to retain its own
counsel, but the
reasonable fees and expenses of such counsel shall be at the
expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party
shall have mutually agreed to the retention of such counsel, (ii)
the
indemnifying party has assumed the defense of such
16
<PAGE>
proceeding and has failed within a reasonable time to retain
counsel reasonably
satisfactory to such indemnified party or (iii) the named parties
to any such
proceeding (including any impleaded parties) include both the
indemnifying party
and the indemnified party and representation of both parties by the
same counsel
would be inappropriate due to actual or potential conflicts of
interests between
them. It is agreed that the indemnifying party shall not, in
connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the
reasonable fees and expenses of more than one separate law firm (in
addition to
local counsel where reasonably necessary) for all such indemnified
parties. Such
firm shall be designated in writing by the indemnified party. The
indemnifying
party shall not be liable for any settlement of any proceeding
effected without
its written consent, but if settled with such consent or if there
be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the
indemnified party from and against any loss or liability by reason
of such
settlement or judgment. No indemnifying party shall, without the
prior written
consent of the indemnified party, effect any settlement of any
pending or
threatened proceeding in respect of which any indemnified party is
or could have
been a party and indemnity could have been sought hereunder by such
indemnified
party, unless such settlement (i) includes an unconditional release
of such
indemnified party from all liability on claims that are the subject
matter of
such proceeding; 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)
If the indemnification provided for in this Section VI is
unavailable
to or insufficient to hold harmless an indemnified party under the
preceding
paragraphs of this Section VI in respect of any losses, claims,
damages or
liabilities (or actions in respect thereof) referred to therein,
then each
indemnifying party shall contribute to the amount paid or payable
by such
indemnified party as a result of such losses, claims, damages or
liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the
relative benefits received by the Company on the one hand and each
Agent on the
other from the offering of the Notes to which such loss, claim,
damage or
liability (or action in respect thereof) relates. If, however, the
allocation
provided by the immediately preceding sentence is not permitted by
applicable
law, then each indemnifying party shall contribute to such amount
paid or
payable by such indemnified party 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 each Agent on the other in connection
with the
statements or omissions which resulted in such losses, claims,
damages or
liabilities (or actions in respect thereof), as well as any other
relevant
equitable considerations. The relative benefits received by the
Company on the
one hand and each Agent on the other shall be deemed to be in the
same
proportion as the total net proceeds from the sale of Notes (before
deducting
expenses) received by the Company bear to the total commissions or
discounts
received by such Agent in respect thereof. The relative fault shall
be
determined by reference to, among other things, whether the untrue
or alleged
untrue statement of a material fact or the omission or alleged
omission to state
a material fact required to be stated therein or necessary in order
to make the
statements therein not misleading relates to information supplied
by the Company
on the one hand or by any Agent on the other and the parties'
relative intent,
knowledge, access to information and op
