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THE WILLIAMS COMPANIES, INC.

DEALER MANAGER AGREEMENT

November 17, 2005

 

LEHMAN BROTHERS INC.

MERRILL LYNCH & CO.

MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED

 

Lehman Brothers Inc.

745 7th Avenue

New York, New York 10019

Merrill Lynch & Co.

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

Four World Financial Center

New York, New York 10080

Ladies and Gentlemen:

1. General. The Williams Companies, Inc., a Delaware corporation (the

"COMPANY"), plans to make an offer (the "OFFER") to pay a cash premium to

holders of any and all of up to $299,987,000 aggregate principal amount of the

Company's outstanding 5.50% Junior Subordinated Convertible Debentures due 2033

(the "SECURITIES") who elect to convert their Securities to shares of the

Company's common stock ("COMPANY SHARES") in accordance with the terms of the

Securities and upon the terms and subject to the conditions set forth in the

Preliminary Conversion Offer Prospectus dated the date hereof and included in

the Registration Statement (as defined below) (and as amended or supplemented

from time to time prior to effectiveness of the Registration Statement, the

"PRELIMINARY PROSPECTUS"), and the related Letter of Transmittal (the "LETTER OF

TRANSMITTAL") dated the date hereof and filed as Exhibit 99.1 to the

Registration Statement.

The following materials to be used by the Company in connection with the

Offer, as any of them may be amended, modified or supplemented from time to

time, are collectively referred to herein as the "OFFER MATERIAL":

(a) The Company's Registration Statement on Form S-4 filed with the

Securities and Exchange Commission (the "COMMISSION") on November 17, 2005 in

accordance with the Securities Act of 1933, as amended, and the rules and

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regulations of the Commission thereunder (collectively, the "1933 ACT"),

relating to the Offer and the issuance of the Company Shares in connection

therewith. As used in this agreement (the "DEALER MANAGER AGREEMENT" or this

"AGREEMENT"), the term "REGISTRATION STATEMENT" means such registration

statement, including all exhibits, financial statements, schedules or other

information included or incorporated by reference therein, when it becomes

effective under the 1933 Act, and as amended or supplemented from time to time.

(b) The Company's Conversion Offer Prospectus relating to the Offer and

the Company Shares to be issued in connection therewith. As used in this

Agreement, the term "PROSPECTUS" means (i) any prospectus, as amended or

supplemented on or prior to the Acceptance Date (as defined below) (including,

but not limited to, the Preliminary Prospectus) that the Company uses, prepares,

files, distributes or approves in writing which is used to solicit tenders of

Securities in the Offer, or (ii) after the effectiveness of the Registration

Statement, the prospectus, if any, filed with the Commission pursuant to Rule

424(b) under the 1933 Act, in the form it was first filed, provided that such

prospectus was used to solicit tenders of Securities in the Offer on or prior to

the Acceptance Date. All references in this Agreement to financial statements

and schedules and other information which is "contained", "included" or "stated"

in the Registration Statement, any preliminary prospectus or the Prospectus (or

other references of like import) shall be deemed to mean and include all such

financial statements and schedules and other information which is incorporated,

or deemed to be incorporated, by reference in the Registration Statement, any

preliminary prospectus or the Prospectus, as the case may be. Any reference

herein to the Registration Statement or the Prospectus shall be deemed to refer

to and include any documents, financial statements and schedules incorporated,

or deemed to be incorporated, by reference therein pursuant to Form S-4 under

the 1933 Act, as of the effective date of the Registration Statement or the date

of the Prospectus, as the case may be, and any reference to any amendment or

supplement to the Registration Statement or the Prospectus shall be deemed to

refer to and include any documents, financial statements and schedules filed

after such date under the Securities Exchange Act of 1934, as amended, and the

rules and regulations of the Commission thereunder (collectively, the "1934

ACT") and so incorporated, or deemed to be incorporated, by reference (such

incorporated documents, financial statements and schedules being herein called

the "INCORPORATED DOCUMENTS"). For purposes of this Agreement, all references to

the Registration Statement, any preliminary prospectus, the Prospectus or any

amendment or supplement to any of the foregoing shall be deemed to include the

copy filed with the Commission pursuant to its Electronic Data Gathering,

Analysis and Retrieval system ("EDGAR").

(c) The Tender Offer Statement on Schedule TO (the "SCHEDULE TO") filed

or to be filed by the Company with the Commission pursuant to Rule 13e-4 under

the 1934 Act and all amendments to the Schedule TO (each an

 

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"AMENDMENT" and, collectively, the "AMENDMENTS") and the Letter of Transmittal.

(d) The Guidelines for Certification of Taxpayer Identification Number

on Substitute Form W-9 relating to the Offer.

(e) The form of letter to Registered Holders and The Depository Trust

Company Participants relating to the Offer, and the form of letter to Clients of

Registered Holders and The Depository Trust Company Participants relating to the

Offer.

(f) Any other documents or materials whatsoever (including newspaper

announcements and press releases) relating to the Offer that are distributed or

made available to the public or the holders of the Securities by or at the

direction of the Company in connection with the Offer.

2. Engagement as Dealer Managers. (a) The Company hereby retains each of

Lehman Brothers Inc., Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner &

Smith Incorporated to act as the exclusive dealer managers with respect to the

Offer (each a "DEALER MANAGER" and together, the "DEALER MANAGERS"). On the

basis of the representations and warranties and agreements of the Company herein

contained and subject to and in accordance with the terms and conditions hereof

and of the Offer Material, you hereby agree to act as Dealer Managers in

connection with the Offer and in connection therewith, you shall act in

accordance with your customary practices and shall perform those services in

connection with the Offer that are customarily performed by investment banking

firms in connection with acting as a dealer manager of transactions of a like

nature, including, but not limited to, soliciting conversions pursuant to the

Offer and communicating generally regarding the Offer with brokers, dealers,

commercial banks and trust companies and other persons, including the holders of

the Securities. The Dealer Managers shall have no obligation to cause copies of

the Offer Material to be transmitted generally to the holders of the Securities.

(b) The Company acknowledges and agrees that each of the Dealer

Managers has been retained hereunder to act solely as a Dealer Manager. In such

capacity, each of the Dealer Managers shall act hereunder as an independent

contractor and shall not be deemed the agent or fiduciary of the Company or any

of its affiliates, equity holders or creditors or of any other person, and any

of the duties of the Dealer Managers arising out of the Dealer Managers'

engagement pursuant to this Agreement shall be owed solely to the Company. None

of the Dealer Managers shall be liable to the Company, its affiliates, equity

holders or creditors or to any other person for any act or omission on the part

of, and shall not be deemed to be the agent or fiduciary of, any broker or

dealer, commercial bank or trust company and no such broker or dealer,

commercial bank or trust company shall be deemed to be acting as the agent or

fiduciary of any of the

 

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Dealer Managers (including, without limitation, for purposes of Section 10 of

this Agreement). Nothing contained in this Agreement shall constitute any of the

Dealer Managers a partner of or joint venturer with the Company.

3. Solicitation Material, Withdrawal. The Company agrees to furnish you

with as many copies as you may reasonably request of any Offer Material, and

hereby authorizes you to use the Offer Material in connection with the Offer.

The Company agrees that, within a reasonable time prior to using any Offer

Material, it will submit copies of such material to you and your counsel and

will not use or publish any such material to which you reasonably object. The

Company agrees that the Offer Material have been or will be prepared and

approved by, and are the sole responsibility of, the Company. The Company shall

inform you promptly after it receives notice or becomes aware of the happening

of any event, or the discovery of any fact, that would require the making of any

change in any Offer Material then being used or that would affect the accuracy

or completeness of any representation or warranty contained in this Agreement if

such representation or warranty were being made immediately after the happening

of such event or the discovery of such fact.

In the event that (i) the Company uses or permits the use of any Offer

Material (a) that has not been submitted to you and your counsel for comment or

(b) that has been so submitted and with respect to which you or your counsel

have made comments, but which comments have not resulted in a response

reasonably satisfactory to you to reflect such comments, (ii) the Company shall

have breached any of its representations, warranties, agreements, obligations or

covenants contained herein, (iii) there shall have occurred any material adverse

change, or any development or event involving a material adverse change, in the

financial condition, results of operations, business or prospects of the Company

and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE CHANGE"), that, in

your judgment, makes it impracticable or inadvisable to carry out the Offer, the

conversion of Securities pursuant thereto or the performance of this Agreement,

(iv) the Offer is terminated or withdrawn for any reason other than as a result

of the gross negligence, bad faith or willful misconduct of any Dealer Manager

or (v) any stop order, restraining order, injunction or denial of an application

for approval has been issued in connection with the Offer and not thereafter

stayed or vacated or any proceeding, litigation or investigation in connection

with the Offer has been initiated, that, in either case in your judgment, makes

it impracticable or inadvisable to carry out the Offer, the conversion of

Securities pursuant thereto or the performance of this Agreement, then in any

such case you shall be entitled to withdraw as a Dealer Manager, by providing

written notice of such withdrawal to the Company, without any liability or

penalty to you or any other Indemnified Party (as defined in Section 10) and

without loss of any right to the payment of all expenses payable in accordance

with Section 5 hereunder which have been incurred by you to the date of such

withdrawal. If you withdraw as a Dealer Manager in accordance with the foregoing

provision, the reimbursement for your

 

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expenses through the date of such withdrawal shall be paid to you promptly after

such date. Notwithstanding anything contained in this Agreement to the contrary,

the Company may, in its discretion, carry out the Offer after your withdrawal as

Dealer Manager, provided that the Company (y) amends or supplements the Offer

Material to disclose that you have withdrawn as Dealer Manager and (z) utilizes

a means reasonably calculated to reach holders of the Securities to inform them

of such withdrawal.

4. Compensation. The Company agrees that it will pay all of the

compensation due to the Dealer Managers for their services as Dealer Managers

hereunder and agrees that such compensation will be as set forth in Schedule I

hereto and that such compensation will be paid in cash immediately upon the

completion of the Offer.

5. Expenses. The Company agrees that it will pay all of the following

expenses related to the Offer: (i) all fees and expenses relating to the

preparation, printing, mailing and publishing of the Offer Material, including

the cost of preparation and filing of the Registration Statement and any

amendment thereto and Schedule TO and any Amendments thereto, and the cost of

furnishing copies thereof to the Dealer Managers, (ii) all fees and expenses of

the Company's counsel and accountants and of the Conversion Agent and

Information Agent (each as defined in Section 6), (iii) all advertising charges,

(iv) all fees and expenses of any depositary, transfer agent, conversion agent

or other person rendering services in connection with the Offer, (v) mailing and

handling expenses incurred by brokers and dealers (including you), commercial

banks, trust companies and other nominees in forwarding the Offer Material to

their customers, (vi) the cost of the preparation, issuance and delivery of the

Company Shares issued upon conversion of Securities, including any and all

transfer and other taxes payable thereon, except as otherwise stated in the

Letter of Transmittal, (vii) all expenses in connection with the qualification

of the Company Shares for offer and delivery, (viii) all costs and expenses

incident to the additional listing of the Company Shares on the New York Stock

Exchange, (ix) all fees and expenses of Davis Polk & Wardwell as counsel to the

Dealer Managers and (x) all other costs and expenses incident to the performance

of the obligations of the Company hereunder for which provision is not otherwise

made in this Section 5. All payments to be made by the Company pursuant to this

Section 5 shall be made promptly after the expiration or termination of the

Offer or withdrawal by you from acting as Dealer Managers in accordance with

Section 3 or, if later, promptly after the related fees or expenses accrue and

are invoiced. The Company shall perform its obligations set forth in this

Section 5 whether or not the Offer is commenced or the Company acquires any

Securities pursuant to the Offer or otherwise.

6. Conversion Agent and Information Agent. (a) The Company will arrange

for JPMorgan Chase Bank, National Association, a national banking

 

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association, to serve as conversion agent (the "CONVERSION AGENT") in connection

with the Offer and, as such, to advise you at least daily as to such matters

relating to the Offer as you may request. The Company shall provide you or cause

The Depository Trust Company ("DTC") to provide you with copies of the records

or other lists showing the names and addresses of, and number of Securities held

by, the holders of Securities as of a recent date and shall, from and after such

date, use its commercially reasonable efforts to cause you to be advised from

day to day during the pendency of the Offer of all transfers of Securities, such

notification consisting of the name and address of the transferor and transferee

of any Securities and the date of such transfer. The Company will arrange for

D.F. King & Co., Inc., to serve as information agent ("INFORMATION AGENT") in

connection with the Offer and, as such, to advise you as to such matters

relating to the Offer as you may reasonably request and to furnish you with any

written reports concerning any such information as you may reasonably request.

(b) The Company authorizes you to communicate with the Conversion Agent,

the Information Agent and with DTC in its capacity as depositary, with respect

to matters relating to the Offer.

7. Representations, Warranties and Certain Agreements of the Company. The

Company represents and warrants to each of the Dealer Managers, and agrees with

each of the Dealer Managers, as of the date hereof, as of the date of

commencement of the Offer pursuant to Section 13(e) of the 1934 Act (if

different from the date hereof) (the "COMMENCEMENT DATE") and as of the date on

which the Securities are accepted by the Company pursuant to the Offer (the

"ACCEPTANCE DATE") (unless another date is specifically referenced in which case

the representation and warranty shall speak as of such date):

(a) Compliance with Registration Requirements. The Company meets the

requirements for use of Form S-4 under the 1933 Act and, on or prior to the

Commencement Date, has filed with the Commission the Registration Statement and

paid the applicable filing fees. As of the Acceptance Date, the Registration

Statement and any post-effective amendment thereto have become effective under

the 1933 Act and no stop order suspending the effectiveness of the Registration

Statement and any post-effective amendment thereto has been issued under the

1933 Act and no proceedings for that purpose have been instituted or are pending

or, to the knowledge of the Company, are contemplated by the Commission, and any

request on the part of the Commission for additional information has been

complied with.

At the respective times the Registration Statement and any post-effective

amendments thereto become effective and at the Acceptance Date, the Registration

Statement and any amendments thereto will comply in all material respects with

the requirements of the 1933 Act and will not contain an untrue statement of a

material fact or omit to state a material fact required to be stated

 

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therein or necessary to make the statements therein not misleading. Neither the

Prospectus nor any amendments and supplements thereto included or will include

an untrue statement of a material fact or omitted or will omit to state a

material fact necessary in order to make the statements therein, in the light of

the circumstances under which they were made, not misleading, except that the

foregoing does not apply to statements in or omissions from any of such

documents based upon written information furnished to the Company by you or on

your behalf specifically for use therein.

Each preliminary prospectus and prospectus filed as part of the

Registration Statement as originally filed or as part of any amendment thereto,

complied when so filed in all material respects with the 1933 Act and each

preliminary prospectus and the Prospectus prepared for use in connection with

the Offer will, at the time of such delivery, be identical to any electronically

transmitted copies thereof filed with the Commission pursuant to EDGAR, except

to the extent permitted by Regulation S-T.

(b) Offer Material. A complete and correct copy of the Offer Material has

been furnished to you and your counsel or will be furnished no later than the

Commencement Date. The Offer Material, as then amended or supplemented (other

than the Prospectus and the Registration Statement, and any amendments and

supplements thereto, which are covered in subsection (a) above), complied and

will comply in all material respects with the requirements of the 1933 Act and

the 1934 Act, as applicable, and did not and will not contain an untrue

statement of a material fact or omit to state a material fact required to be

stated therein or necessary to make the statements therein not misleading.

Neither the Offer Material nor any amendments or supplements thereto (other than

the Prospectus and the Registration Statement, and any amendments and

supplements thereto, which are covered in subsection (a) above) included or will

include an untrue statement of a material fact or omitted or will omit to state

a material fact necessary in order to make the statements therein, in the light

of the circumstances under which they were made, not misleading.

(c) Incorporated Documents. The Company has filed all documents with the

Commission that it is required to file under the 1933 Act and the 1934 Act, as

applicable; the Incorporated Documents, at the time they were or hereafter are

filed with the Commission, complied and will comply in all material respects

with the requirements of the 1934 Act, and, when read together with the other

information in the Prospectus, at the date of the Prospectus and at the

Acceptance Date, did not and will not include an untrue statement of a material

fact or omit to state a material fact necessary in order to make the statements

therein, in the light of the circumstances under which they were made, not

misleading.

(d) Financial Statements. The financial statements of the Company,

together with the related schedules and notes to such financial statements,

 

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included in the Registration Statement and the Prospectus present fairly in all

material respects the financial position of the Company and its consolidated

subsidiaries as of the dates shown and their results of operations and cash

flows for the periods shown, and except as otherwise disclosed in the

Prospectus, such financial statements comply as to form with the applicable

accounting requirements of the 1933 Act and have been prepared in conformity

with generally accepted accounting principles ("GAAP") in the United States

applied on a consistent basis throughout the periods involved (except as stated

therein); and any schedules included in the Registration Statement present

fairly in all material respects in accordance with GAAP the information required

to be stated therein. The selected historical financial data set forth under the

caption "Selected Historical Consolidated Financial Data" in the Prospectus

present fairly the information shown therein and have been compiled as described

in the Prospectus under the caption "Selected Historical Consolidated Financial

Data."

(e) Independent Accountants. Ernst & Young LLP, who have reported upon the

audited financial statements and schedules included or incorporated by reference

in the Prospectus, are independent public auditors with respect to the Company

within the meaning of the rules and regulations promulgated under the 1933 Act.

(f) No Material Adverse Change in Business. Other than as may be set forth

in the Prospectus, neither the Company nor any of its Significant Subsidiaries

has sustained, since the date of the latest audited financial statements

included or incorporated by reference in the Prospectus, any loss or

interference with its business from fire, explosion, flood or other calamity,

whether or not covered by insurance, or from any labor dispute or court or

governmental action, order or decree, which would be reasonably likely to result

in any Material Adverse Effect, or any development involving a material adverse

change in or affecting the financial condition, results of operations, business

or prospects of the Company and its subsidiaries, taken as a whole, otherwise

than as may be set forth or contemplated in the Prospectus, and, since the

respective dates as of which information is given in the Prospectus or since the

date of the Prospectus, there has not been (i) any material change in the

capital stock or long-term debt of the Company or any of its subsidiaries, (ii)

any material adverse change in or affecting the financial condition, results of

operations, business or prospects of the Company and its subsidiaries, taken as

a whole or (iii) any transaction entered into by the Company or any of its

Significant Subsidiaries, other than in the ordinary course of business, that is

material to the Company and its subsidiaries, taken as a whole, otherwise than

as disclosed, in each case, in the Prospectus.

(g) Good Standing of the Company. The Company has been duly incorporated,

is validly existing as a corporation in good standing under the laws of the

State of Delaware, has the corporate power and authority to own its property and

to conduct its business as described in the Prospectus and is duly

 

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qualified to do business and is in good standing in each jurisdiction in which

the conduct of its business or its ownership or leasing of property requires

such qualification, except to the extent that the failure to be so qualified or

be in good standing would not have a material adverse effect on the financial

condition, results of operations, business or prospects of the Company and its

subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").

(h) Good Standing of Subsidiaries. Each significant subsidiary of the

Company (as defined in Rule 1-02 of Regulation S-X under the 1933 Act (each, a

"SIGNIFICANT SUBSIDIARY" and collectively, the "SIGNIFICANT SUBSIDIARIES") has

been duly organized or validly formed, is validly existing and in good standing

under the laws of the jurisdiction of its formation or incorporation, has the

power (corporate or other) and authority to own its property and to conduct its

business as described in the Prospectus and is duly qualified to do business and

is in good standing in each jurisdiction in which the conduct of its business or

its ownership or leasing of property requires such qualification, except to the

extent that the failure to be so qualified or be in good standing would not have

a Material Adverse Effect; all of the issued and outstanding shares of capital

stock or other equity interests of each Significant Subsidiary have been duly

authorized and validly issued and, if applicable, are fully paid and

nonassessable and, except as disclosed in the Prospectus, are owned directly or

indirectly by the Company, free and clear of all liens encumbrances, equities

and claims.

(i) Capital Stock. The Company has an authorized capitalization as set

forth in the Prospectus and Offer Material; all of the issued shares of capital

stock of the Company have been duly authorized and validly issued, are fully

paid and nonassessable, and conform to the description thereof contained in the

Prospectus and Offer Material; and none of such shares of capital stock was

issued in violation of preemptive or other similar rights of any securityholder

of the Company.

(j) Authorization of this Agreement. This Agreement has been duly

authorized, executed and delivered by the Company.

(k) Authorization of Company Shares. The Company has duly authorized for

issuance a sufficient number of Company Shares to be issued on conversion of the

Securities as contemplated by the Offer pursuant to its terms and, when any

Company Shares are issued and delivered by the Company pursuant to the terms of

the Indenture dated as of May 28, 2003 among the Company and JPMorgan Chase

Bank, as trustee, and as provided in the Offer Material, such Company Shares

will be validly issued and fully paid and non-assessable; the Company Shares

conform in all material respects to the respective statements relating thereto

contained in the Prospectus and Offer Material and the issuance of the Company

Shares by the Company is not subject to any preemptive or other similar rights

of any security holder of the Company.

 

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(l) Noncontravention. The Company has full power and authority to make and

consummate the Offer in accordance with its terms and to execute, deliver and

perform its obligations under this Agreement. The (i) execution, delivery and

performance by the Company of this Agreement, (ii) making and consummation of

the Offer by the Company (including but not limited to the issuance and delivery

of Company Shares thereunder), (iii) obtaining and use by the Company of funds

required in connection with the Offer, (iv) use of the Offer Material and the

filing of the Registration Statement, the Prospectus and the Schedule TO, and

any amendments or supplements thereto and (v) consummation by the Company of the

transactions contemplated by this Agreement and in the Offer Material, in each

case, have been duly authorized by all necessary action (corporate or other) on

the part of the Company and do not and will not (x) result in any violation of

the charter or by-laws of the Company or (y) conflict with, or result in a

breach of any of the terms or provisions of, or constitute a default or result

in the creation or imposition of any lien, charge or encumbrance upon any

property or assets of the Company under, any indenture, mortgage, deed of trust,

loan agreement or other agreement or instrument to which the Company or any of

its affiliates is a party or by which the Company or any of its affiliates is

bound (except for such conflicts, breaches or defaults, in the case of this

clause (y), that would not reasonably be expected to have a Material Adverse

Effect), nor does or will such action result in any violation of any statute

applicable to the Company or any order, rule or regulation of any court or

governmental agency or body having jurisdiction over the Company or any of its

properties.

(m) Absence of Proceedings. Other than as set forth or incorporated by

reference in the Prospectus, there is no action, suit or proceeding before or by

any government, governmental instrumentality or court, domestic or foreign, now

pending or, to the knowledge of the Company, threatened against or affecting the

Company or any Significant Subsidiary or to which any of their respective

properties are subject that would reasonably be expected to result in any

Material Adverse Effect, or that would reasonably be expected to adversely

affect the consummation of the Offer or the other transactions contemplated in

this Agreement.

(n) Absence of Further Requirements. No consent, approval, authorization,

order, registration or qualification of or with any such court or governmental

agency or body having jurisdiction over the Company or any of its properties is

required for the execution, delivery and performance by the Company of this

Agreement, in connection with the consummation of the Offer or the other

transactions described in the Offer Material by the Company, except as may be

required by the securities or Blue Sky laws of the various states in connection

with the Offer.

(o) Possession of Licenses and Permits. The Company and its Significant

Subsidiaries each have obtained all consents, authorizations,

 

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approvals, orders, certificates and permits of and from, and has made all

declarations and filings with, all federal, state, local and other governmental

authorities, and all courts or other tribunals (collectively, the "LICENSES")

necessary to own, hold, or lease, as the case may be, and to operate its

properties and to carry on its business as presently conducted, except where the

failure to possess such Licenses would not reasonably be expected to have a

Material Adverse Effect, and neither the Company nor any of its Significant

Subsidiaries has received any written notice of proceedings relating to

revocation or modification of any such Licenses, except to the extent that any

such revocation or modification would not have a Material Adverse Effect.

(p) Sufficient Funds. The funds to be made available by the Company for

consummation of the Offer as described in the Offer Material are available or

will be available to the Company by the Acceptance Date and the Company will

have sufficient authority under applicable law to use such funds as described to

enable the Company promptly to pay the cash consideration for the Securities

pursuant to the Offer as described in the Prospectus.

(q) Officers' Certificates. Any certificate signed by any officer of the

Company delivered to you or to your counsel and requested in writing with

respect to this Agreement shall be deemed a representation and warranty by the

Company to each Dealer Manager as to the matters covered thereby.

(r) Absence of Defaults and Conflicts. The Company is not (i) in violation

of its charter or by-laws, as applicable, (ii) in default, and no event has

occurred which, with notice or lapse of time or both, would constitute such a

default, in the due performance or observance of any term, obligation,

agreement, covenant or condition contained in any material contract, indenture,

mortgage, deed of trust, loan agreement, lease or other agreement or instrument

to which it is a party or by which it is bound or which any of its properties or

assets may be subject or (iii) in violation of any law, ordinance, governmental

rule, regulation or court decree to which it or its property or assets may be

subject, except with respect to (ii) or (iii), for any such violations or

defaults that would not be reasonably likely, singly or in the aggregate, to

have a Material Adverse Effect.

(s) Compliance with Environmental Laws. (i) Each of the Company and its

Significant Subsidiaries (A) is in compliance with any and all applicable

foreign, federal, state and local laws and regulations relating to the

protection of human health and safety, the environment or hazardous or toxic

substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (B) has

received all permits, licenses or other approvals required of it under

applicable Environmental Laws to conduct its business as presently conducted and

(C) is in compliance with all terms and conditions of any such permit, license

or approval, except, with respect to (A), (B) and (C), as may be disclosed in

the Prospectus and except where such noncompliance with Environmental Laws,

failure to receive required

 

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permits, licenses or other approvals or failure to comply with the terms and

conditions of such permits, licenses or approvals would not be reasonably likely

to, singly or in the aggregate, have a Material Adverse Effect.

(ii) There has been no storage, disposal, generation,

manufacture, refinement, transportation, handling or treatment of

toxic wastes, medical wastes, hazardous wastes or hazardous

substances by the Company or any of its Significant Subsidiaries

(or, to the knowledge of the Company, any of their predecessors in

interest) at, upon or from any of the property now or previously

owned or leased by the Company or its Significant Subsidiaries in

violation of any applicable law, ordinance, rule, regulation,

order, judgment, decree or permit or which would require remedial

action under any applicable law, ordinance, rule, regulation,

order, judgment, decree or permit, except as may be disclosed in

the Prospectus and except for any violation or remedial action

which would not be reasonably likely to have, singularly or in the

aggregate, a Material Adverse Effect; there has been no material

spill, discharge, leak, emission, injection, escape, dumping or

release of any kind onto such property or into the environment

surrounding such property of any toxic wastes, medical wastes,

solid wastes, hazardous wastes or hazardous substances due to or

caused by the Company or any of its Significant Subsidiaries or

with respect to which the Company or any of its Significant

Subsidiaries have knowledge, except as may be set forth in the

Prospectus, and except for any such spill, discharge, leak,

emission, injection, escape, dumping or release which would not be

reasonably likely to have, singularly or in the aggregate, a

Material Adverse Effect; and the terms "hazardous wastes", "toxic

wastes", "hazardous substances" and "medical wastes" shall have the

meanings specified in any applicable local, state, federal and

foreign laws or regulations with respect to environmental

protection

(t) Internal Controls. The Company (i) makes and keeps books and records

which accurately reflect transactions and dispositions of the Company's assets

and (ii) maintains internal accounting controls which provide reasonable

assurance that (A) transactions are executed in accordance with management's

general or specific authorization, (B) transactions are recorded as necessary to

permit preparation of its financial statements and to maintain accountability

for its assets, and (C) access to its assets is permitted only in accordance

with management's general or specific authorization.

(u) Disclosure Controls and Procedures. (i) (A) The Company has

established and maintains disclosure controls and procedures (as such terms are

 

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defined in Rules 13a-15(e) and 15d-15(e) under the 1934 Act); (B) such

disclosure controls and procedures are designed to ensure that info