EXHIBIT 1.1
MIDAMERICAN ENERGY COMPANY
MEDIUM-TERM NOTES DUE NOT LESS THAN
[__] MONTHS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
[______, 20__]
[NAMES AND ADDRESSES OF AGENTS]
Dear Sirs:
MidAmerican Energy Company, an Iowa corporation (the
"Company"), confirms its agreement with [NAMES OF AGENTS] (each, an
"Agent" and,
together, the "Agents") with respect to the issue and sale by the
Company of its
Medium-Term Notes described herein (the "Notes"). The Notes are to
be issued
pursuant to an indenture, dated as of [_____, 20__] as amended (the
"Indenture"), between the Company and [NAME OF TRUSTEE], as trustee
(the
"Trustee"). As of the date hereof, the Company has authorized the
issuance and
sale of up to $[______] aggregate principal amount of Notes through
the Agents
pursuant to the terms of this Agreement, [OF WHICH $_______REMAINS
UNSOLD]. It
is understood, however, that the Company from time to time may
reduce the
maximum principal amount of Notes which it may issue and sell or
authorize the
issuance of additional Notes and that such additional Notes may be
sold through
or to the Agents pursuant to the terms of this Agreement, all as
though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the
Company directly to purchasers, in which case the Agents will act
as agents of
the Company in soliciting Note purchases, and (as may from time to
time be
agreed to by the Company and the Agents) to the Agents as principal
for resale
to purchasers.
The Company has filed with the Securities and Exchange
Commission (the "SEC") registration statements on Form S-3 (No.
333-110398) and
(No. 333-_________) for the registration of certain securities,
including the
Notes, under the Securities Act of 1933, as amended (the "1933
Act") and the
offering thereof from time to time in accordance with Rule 415 of
the rules and
regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such
registration statement has been declared effective by the SEC and
the Indenture
has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939
Act"). Such registration statements (and any further registration
statements
which may be filed by the Company for the purpose of registering
additional
Notes and in connection with which this Agreement is included or
incorporated by
reference as an exhibit) and the prospectus specifically relating
to the Notes
constituting a part thereof, and any prospectus supplements
specifically
relating to the Notes, including all documents incorporated therein
by
reference, as from time to time amended or supplemented by the
filing of
documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934
Act") or the 1933 Act or otherwise, are referred to herein as the
"Registration
Statement" and the "Prospectus", respectively, except that if any
revised
prospectus specifically relating to Notes shall be provided to the
Agents by the
Company for use in connection with the offering of Notes which is
not required
to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations,
the term "Prospectus" shall refer to such revised prospectus from
and after the
time it is first provided to an Agent for such use.
SECTION 1. Appointment As Agents.
(a) Appointment of Agents. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the
right to sell
Notes directly on its own behalf, the Company hereby appoints each
Agent as its
agent for the purpose of soliciting purchases of Notes from the
Company by
others and agrees that, except as otherwise contemplated herein,
whenever the
Company determines to sell Notes directly to an Agent or Agents as
principal for
resale to others, it will enter into a Terms Agreement (hereafter
defined)
relating to such sale in accordance with the provisions of Section
3(b) hereof.
The Agents are authorized to appoint sub-agents or to engage the
services of any
other broker or dealer in connection with the offer or sale of
Notes. The
Company agrees that, during the period any Agent is acting as the
Company's
Agent hereunder, the Company will not contact or solicit potential
investors
introduced to it by such Agent to purchase Notes. The Company may
appoint, upon
one day prior written notice to the Agents, additional persons to
serve as Agent
hereunder, but only if each such additional person agrees to be
bound by all of
the terms of this Agreement as an agent.
(b) Reasonable Efforts Solicitations; Right to Reject Offers.
Upon receipt of instructions from the Company, the Agents will use
their
reasonable efforts to solicit purchases of such principal amount of
Notes as the
Company and the Agents shall agree upon from time to time during
the term of
this Agreement, it being understood that the Company shall not
approve the
solicitation of purchases of Notes in excess of the amount which
shall be
authorized by the Company from time to time or in excess of the
principal amount
of Notes registered pursuant to the Registration Statement. The
Agents will have
no responsibility for maintaining records with respect to the
aggregate
principal amount of Notes sold, or of otherwise monitoring the
availability of
Notes for sale under the Registration Statement. The Agents will
communicate to
the Company, orally or in writing, each offer to purchase Notes,
other than
those offers rejected by an Agent. Each Agent shall have the right,
in its
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 such
Agent's agreement contained herein. The Company may accept or
reject any
proposed purchase of Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In
soliciting purchases of Notes on behalf of the Company, each Agent
shall act
solely as agent for the Company and not as principal. Each Agent
shall make
reasonable efforts to assist the Company in obtaining performance
by each
purchaser whose offer to purchase Notes has been solicited by such
Agent and
accepted by the Company. Such Agent shall not have any liability to
the Company
in the event any such purchase is not consummated for any reason.
Such Agent
shall not have any obligation to purchase Notes from the Company as
principal,
but an Agent may agree from time to time to purchase Notes as
principal. Any
such purchase of Notes by an Agent as principal shall be made
pursuant to a
Terms Agreement in accordance with Section 3(b) hereof.
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(d) Reliance. The Company and each Agent agree that any Notes
the placement of which such Agent arranges shall be placed by such
Agent, and
any Notes purchased by such Agent shall be purchased, in reliance
on the
representations, warranties, covenants and agreements of the
Company contained
herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Company
of an offer
for the purchase of Notes (whether through any Agent as agent or to
any Agent as
principal), as of the date of each delivery of Notes (whether
through such Agent
as agent or to such Agent as principal) (the date of each such
delivery to such
Agent as principal being hereafter referred to as a "Settlement
Date"), and as
of any time that the Registration Statement or the Prospectus shall
be amended
or supplemented (other than by an amendment or supplement providing
solely for a
change in the interest rates of the Notes or similar changes) or
there is filed
with the SEC any document incorporated by reference into the
Prospectus (other
than any Current Report on Form 8-K relating exclusively to the
issuance of debt
securities under the Registration Statement, unless the Agents
shall otherwise
specify) (each of the times referenced above being referred to
herein as a
"Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company
has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the state of Iowa with corporate
power
and authority to own, lease and operate its properties and to
conduct
its business as described in the Prospectus; and the Company is
duly
qualified as a foreign corporation to transact business and is in
good
standing in each jurisdiction in which such qualification is
required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify and be
in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or
business prospects of the Company.
(ii) Public Utility. The Company has the legal right
to function and operate as an electric public utility company in
the
States of Iowa, Illinois and South Dakota, and as a gas public
utility
company in the States of Iowa, Illinois, South Dakota and Nebraska.
(iii) Subsidiaries. The Company has no significant
subsidiaries, as "significant subsidiary" is defined in Rule 405 of
Regulation C of the 1933 Act Regulations.
(iv) Registration Statement and Prospectus. At the
time the Registration Statement became effective, the Registration
Statement complied, and as of the applicable Representation Date
will
comply, in all material respects, with the requirements of the 1933
Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each
time
thereafter at which any amendment
3
to the Registration Statement becomes effective or any Annual
Report on
Form 10-K is filed by the Company with the SEC and as of each
Representation Date, 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.
The
Prospectus, as of the date hereof does not, and as of each
Representation Date will not, contain an untrue statement of a
material
fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, however, that the
representations
and warranties in this subsection shall not apply to statements in
or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Agents expressly for use in the
Registration
Statement or Prospectus, it being understood and agreed that the
only
such information furnished by any Agent consists of the information
described as such in the applicable Terms Agreement.
(v) Incorporated Documents. The documents
incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, at the time they were or
hereafter are filed with the SEC, complied or when so filed will
comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations
promulgated
thereunder ("1934 Act Regulations"), and, when read together with
the
other information in the Prospectus, did not and will at all times
during the period specified in Section 4(e) hereof not contain an
untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they
were or are made, not misleading. The Company is in compliance in
all
material respects with all the applicable provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated
thereunder.
(vi) Accountants. The accountants who issued their
reports on the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus are an
independent registered public accounting firm within the meaning of
the
1933 Act and the 1933 Act Regulations.
(vii) Financial Statements. The financial statements
and any supporting schedules of the Company included or
incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company as of the dates
indicated
and the results of its operations for the periods specified; and,
except as stated therein, said financial statements have been
prepared
in conformity with generally accepted accounting principles in the
United States applied on a consistent basis; and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein.
(viii) Authorization and Validity of this Agreement,
any Applicable Terms Agreement, the Indenture and the Notes. Each
of
this Agreement and any applicable Terms Agreement has been duly
authorized and, upon execution and delivery by the Agents, will be
a
legal, valid and binding agreement of the Company; the Indenture
has
been duly authorized and constitutes a legal, valid and binding
obligation
4
of the Company enforceable against the Company in accordance with
its
terms; the Notes have been duly and validly authorized for
issuance,
offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms
Agreement, the Notes will constitute legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms; except as enforcement of the Indenture
and
the Notes may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating
to or affecting the enforcement of creditors' rights generally and
general equitable principles; the Notes and the Indenture will be
substantially in the form heretofore delivered to the Agents and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the
benefits provided by the Indenture.
(ix) Material Changes or Material Transactions. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise
be
stated therein or contemplated thereby, (A) there has been no
material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and (B)
there have been no material transactions entered into by the
Company
other than those in the ordinary course of business.
(x) No Defaults. The Company is not in violation of
its Restated Articles of Incorporation, as amended, or bylaws, or
in
default in the performance or observance of any material
obligation,
agreement, covenant or condition contained in any contract,
indenture,
mortgage, loan agreement, note, lease or other instrument to which
it
is a party or by which it or its properties may be bound; the
execution
and delivery of this Agreement, the Indenture and any applicable
Terms
Agreement and the consummation of the transactions contemplated
herein
and therein have been duly authorized by all necessary corporate
action
and will not conflict with, constitute a breach of or default
under, or
result in the creation or imposition of any lien, charge or
encumbrance
upon any material property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or
any
of its subsidiaries is a party or by which the Company or any of
its
subsidiaries may be bound or to which any of the material property
or
assets of the Company or any such subsidiary is subject, nor will
such
action result in any violation of the Restated Articles of
Incorporation, as amended, or bylaws of the Company or any law,
administrative regulation or administrative or court order or
decree.
(xi) Regulatory Approvals. The Company has made all
necessary filings and obtained all necessary consents, orders or
approvals from the Federal Energy Regulatory Commission ("FERC")
and
the Illinois Commerce Commission ("ICC") in connection with the
issuance and sale of the Notes and the application of the proceeds
thereof, and no consent, approval, authorization, order or decree
of
any other court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this
Agreement, except such as may be required under state securities
("Blue
Sky") laws.
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(xii) Legal Proceedings; Contracts. Except as may be
set forth in the Registration Statement, there is no action, suit
or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company,
threatened against or affecting, the Company which would be
reasonably
likely to result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, or would be reasonably likely to
materially and adversely affect its properties or assets or would
be
reasonably likely to materially and adversely affect the
consummation
of this Agreement, the Indenture or any applicable Terms Agreement;
and
there are no contracts or documents of the Company which are
required
to be filed as exhibits to the Registration Statement by the 1933
Act
or by the 1933 Act Regulations which have not been so filed.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Agents or
to counsel for
the Agents in connection with an offering of Notes or the sale of
Notes to the
Agents as principal shall be deemed a representation and warranty
by the Company
to the Agents as to the matters covered thereby on the date of such
certificate
and at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. On the basis of the
representations and warranties herein contained, but subject to the
terms and
conditions herein set forth, each Agent agrees, as the agent of the
Company, to
use its reasonable efforts to solicit offers to purchase the Notes
upon the
terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of Notes through any Agent, as
agent,
commencing at any time for any period of time or permanently. Upon
receipt of
instructions from the Company, such Agent will forthwith suspend
solicitation of
purchases from the Company until such time as the Company has
advised such Agent
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form
of a discount, equal to a percentage of the principal amount of
each Note sold
by the Company as a result of a solicitation made by such Agent,
such percentage
to be as agreed upon by the Company and the Agents. The Agents may
allow any
portion of the commission payable pursuant hereto to dealers or
purchasers in
connection with the offer and sale of any Notes.
The purchase price, interest rate, maturity date and other
terms of the Notes shall be agreed upon by the Company and the
Agents and set
forth in a pricing supplement to the Prospectus to be prepared
following each
acceptance by the Company of an offer for the purchase of Notes.
Except as may
be otherwise provided in such supplement to the Prospectus, the
Notes will be
issued in denominations of $[____] or any larger amount that is an
integral
multiple of $[_____]. All Notes sold through any Agent as agent
will be sold at
[__]% of their principal amount unless otherwise agreed to by the
Company and
such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms contained
herein and
(unless the Company and such Agent
6
shall otherwise agree) pursuant to a separate agreement which will
provide for
the sale of such Notes to, and the purchase and reoffering thereof
by, such
Agent. Each such separate agreement (which may be an oral
agreement) between
such Agent and the Company is herein referred to as a "Terms
Agreement". Unless
the context otherwise requires, each reference contained herein to
"this
Agreement" shall be deemed to include any applicable Terms
Agreement between the
Company and such Agent. Each such Terms Agreement, whether oral or
in writing,
shall be with respect to such information (as applicable) as is
specified in the
form of Terms Agreement attached as Exhibit A hereto. Such Agent's
commitment to
purchase Notes as principal pursuant to any Terms Agreement or
otherwise shall
be deemed to have been made on the basis of the representations and
warranties
of the Company herein contained and shall be subject to the terms
and conditions
herein set forth. Each Terms Agreement shall specify the principal
amount of
Notes to be purchased by such Agent pursuant thereto, the price to
be paid to
the Company for such Notes (which, if not so specified in a Terms
Agreement,
shall be at a discount equivalent to the applicable commission as
agreed upon by
the Company and the Agents), the time and place of delivery of and
payment for
such Notes, any provisions relating to rights of, and default by,
purchasers
acting together with such Agent in the reoffering of the Notes, and
such other
provisions (including further terms of the Notes) as may be
mutually agreed
upon. Such Agent may utilize a selling or dealer group in
connection with the
resale of the Notes purchased. Such Terms Agreement shall also
specify the
requirements for the opinions of counsel, officers' certificate and
comfort
letter pursuant to Sections 5(c), 5(d), 5(e) and 5(f) hereof.
(c) Administrative Procedures. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time
by the
Agents and the Company (the "Procedures"). The Agents and the
Company agree to
perform the respective duties and obligations specifically provided
to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Rule 424(b) Filing. Promptly following execution of this
Agreement, to cause the Prospectus, including as part thereof a
prospectus
supplement relating to the Notes, to be filed with, or mailed for
filing to, the
SEC pursuant to Rule 424(b)(2) and (3) under the 1933 Act and the
Company will
promptly advise the Agents when such filing or mailing has been
made. Prior to
such filing or mailing, the Company will cooperate with the Agents
in the
preparation of such supplement to the Prospectus to assure that the
Agents have
no reasonable objection to the form or content thereof when filed
or mailed.
(b) FERC or ICC Action. To advise the Agents promptly of any
additional action by the FERC or ICC pertaining to the Notes.
(c) Copies of 1933 Act Documents. To furnish promptly to the
Agents and to counsel for the Agents one signed copy of the
Registration
Statement as originally filed and each amendment thereto filed
prior to the date
hereof and relating to the Notes, and a copy of the Prospectus
filed with the
SEC, including all documents incorporated therein by reference and
all consents
and exhibits filed therewith.
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(d) Conformed Copies. To deliver promptly to the Agents such
reasonable number of the following documents as the Agents may
request: (i)
conformed copies of the Registration Statement (excluding exhibits
other than
the computation of the ratio of earnings to fixed charges, the
Indenture, and
this Agreement), (ii) the Prospectus and (iii) any documents
incorporated by
reference in the Prospectus.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (q) of this Section, if at any
time during the
term of this Agreement any event shall occur or condition exist as
a result of
which it is necessary, in the reasonable opinion of counsel for the
Agents or
counsel for the Company, to further amend or supplement the
Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or
omit to state any material fact necessary in order to make the
statements
therein not misleading in the light of the circumstances existing
at the time
the Prospectus is delivered to a Note purchaser, or if it shall be
necessary, in
the reasonable opinion of either such counsel, to amend or
supplement the
Registration Statement or the Prospectus in order to comply with
the
requirements of the 1933 Act or the 1933 Act Regulations, immediate
notice shall
be given, and confirmed in writing, to the Agents to cease the
solicitation of
offers to purchase the Notes in each Agent's capacity as agent and
to cease
sales of any Notes any Agent may then own as principal pursuant to
a Terms
Agreement, and the Company will promptly prepare and file with the
SEC such
amendment or supplement, whether by filing documents pursuant to
the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such
untrue statement
or omission or to make the Registration Statement and Prospectus
comply with
such requirements.
(f) Agents' Review. Prior to filing with the SEC during the
term of this Agreement, (i) any amendment to the Registration
Statement, (ii)
the Prospectus or any supplement thereto or (iii) any document
incorporated by
reference in any of the foregoing or any amendment or supplement to
such
incorporated document, to furnish a copy thereof to the Agents and
to counsel
for the Agents, and the Company will not file any amendment to the
Registration
Statement or supplement to the Prospectus unless the Company has
furnished to
the Agents a copy of such document for review prior to filing and
will not file
any such proposed amendment or supplement to which the Agents
reasonably object.
(g) Notices to Agents. To advise the Agents promptly during
the term of this Agreement, (i) when any post-effective amendment
to the
Registration Statement becomes effective, (ii) of any request or
proposed
request by the SEC for an amendment or supplement to the
Registration Statement,
to the Prospectus, to any document incorporated by reference in any
of the
foregoing or for any additional information, (iii) of the issuance
by the SEC of
any stop order suspending the effectiveness of the Registration
Statement or any
order directed to the Prospectus or any document incorporated
therein by
reference or the initiation or threat of any stop order proceeding
or of any
challenge by the SEC to the accuracy or adequacy of any document
incorporated by
reference in the Prospectus, (iv) of receipt by the Company of any
notification
with respect to the suspension of the qualification of the Notes
for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and
(v) of the happening of any event which makes untrue any statement
of a material
fact made in the Registration Statement (insofar as the
Registration Statement
relates to or covers the Notes) or the Prospectus or which requires
the making
of a change in the Registration Statement or the Prospectus in
order to make any
material statement therein not misleading.
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(h) Preparation of Pricing Supplements. The Company will
prepare, with respect to any Notes to be sold through or to any of
the Agents
pursuant to this Agreement, a pricing supplement with respect to
such Notes in a
form previously approved by the Agents and will file such pricing
supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the
close of
business of the SEC on the fifth business day after the date on
which such
pricing supplement is first used.
(i) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (q) of this Section, on
or prior to
the date on which there shall be released to the general public
interim
financial statement information related to the Company with respect
to each of
the first three quarters of any fiscal year or preliminary
financial statement
information with respect to any fiscal year, the Company shall
furnish such
information to the Agents, confirmed in writing, and shall cause
the Prospectus
to be amended or supplemented to include or incorporate by
reference financial
information with respect thereto and corresponding information for
the
comparable period of the preceding fiscal year, as well as such
other
information and explanations as shall be necessary for an
understanding thereof
or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(j) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (q) of this Section, on
or prior to
the date on which there shall be released to the general public
financial
information included in or derived from the audited financial
statements of the
Company for the preceding fiscal year, the Company shall cause the
Registration
Statement and the Prospectus to be amended, whether by the filing
of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or
incorporate
by reference such audited financial statements and the report or
reports, and
consent or consents to such inclusion or incorporation by
reference, of the
independent registered public accounting firm with respect thereto,
as well as
such other information and explanations as shall be necessary for
an
understanding of such financial statements or as shall be required
by the 1933
Act or the 1933 Act Regulations.
(k) Stop Order. If, during the term of this Agreement, the SEC
shall issue a stop order suspending the effectiveness of the
Registration
Statement, to make every reasonable effort to obtain the lifting of
that order
at the earliest possible time.
(l) Earnings Statement. As soon as practicable, to make
generally available to its security holders and to deliver to the
Agents an
earnings statement, conforming with the requirements of Section
11(a) of the
1933 Act and Rule 158 of the 1933 Act Regulations, covering a
period of at least
twelve months beginning after the effective date of the
Registration Statement
as defined in Rule 158(c) of the 1933 Act Regulations.
(m) Shareholder and Other Reports. During the period of five
years hereafter, or such lesser period as any of the Notes shall be
outstanding,
to furnish to the Agents, (i) as soon as available, a copy of each
report of the
Company mailed to its shareholders or report filed by the Company
with the SEC
and (ii) from time to time such other information concerning the
Company as the
Agents may reasonably request.
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(n) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and
sale under
the applicable securities laws of such states and other
jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications
in effect for as long as may be required for the distribution of
the Notes;
provided, however, that the Company shall not be obligated to file
any general
consent to service of process or to qualify as a foreign
corporation in any
jurisdiction in which it is not so qualified. The Company will file
such
statements and reports as may be required by the laws of each
jurisdiction in
which the Notes have been qualified as above provided. The Company
will promptly
advise the Agents of the receipt by the Company of any notification
with respect
to the suspension of the qualification of the Notes for sale in any
such state
or jurisdiction or the initiating or threatening of any proceeding
for such
purpose.
(o) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will
file promptly
all documents required to be filed with the SEC pursuant to Section
13(a),
13(c), 14 or 15(d) of the 1934 Act.
(p) Stand-Off Agreement. If required pursuant to the terms of
a Terms Agreement, between the date of any Terms Agreement and the
Settlement
Date with respect to such Terms Agreement, the Company will not,
without the
prior consent of the Agents, offer or sell, or enter into any
agreement to sell,
any debt securities of the Company (other than the Notes that are
to be sold
pursuant to such Terms Agreement and commercial paper in the
ordinary course of
business).
(q) Suspension of Certain Obligations. The Company shall not
be required to comply with the provisions of subsections (e), (i)
or (j) of this
Section during any period from the time (i) the Agents shall have
suspended
solicitation of purchases of the Notes in their capacity as agents
pursuant to a
request from the Company and (ii) the Agents shall not then hold
any Notes as
principal purchased pursuant to a Terms Agreement, to the time the
Company shall
determine that solicitation of purchases of the Notes should be
resumed or shall
subsequently enter into a new Terms Agreement with an Agent.
(r) Condition to Agency Transactions. Any person who has
agreed to purchase Notes as the result of an offer to purchase
solicited by an
Agent shall have the right to refuse to purchase and pay for such
Notes if, on
the related settlement date fixed pursuant to the Procedures, (i)
there shall
have occurred, subsequent to the date on which such person agreed
to purchase
the Notes (the "Trade Date") or subsequent to the respective dates
as of which
information is given in the Registration Statement, (A) any
material adverse
change in the condition, financial or otherwise, or in the
earnings, business
affairs or business prospects of the Company, whether or not
arising in the
ordinary course of business, (B) any attack on, or outbreak or
escalation of
hostilities or act of terrorism involving, the United States, any
declaration of
war by Congress or any other national or international calamity or
emergency, if
in the reasonable judgment of such person the effect of any such
attack,
outbreak, escalation, act of terrorism, declaration of war,
calamity or
emergency makes it impracticable or inadvisable to purchase the
Notes, (C) any
material suspension or material limitation of trading in securities
generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on
such exchange, or any suspension of trading of any securities of
the Company on
any exchange or in the over-the-counter market, or (D) any banking
moratorium
declared by U.S. Federal or
10
New York authorities; or (ii) the rating assigned by any nationally
recognized
securities rating agency to any debt securities of the Company as
of the Trade
Date shall have been lowered since that date or if any such rating
agency shall
have publicly announced that it has under surveillance or review,
with possible
negative implications, its rating of any debt securities of the
Company.
(s) Costs. To pay all costs incident to the authorization,
issuance, sale and delivery of the Notes; the costs incident to the
preparation,
printing and filing under the 1933 Act of the Registration
Statement and the
Prospectus and any amendments, supplements and exhibits thereto;
the costs
incident to the preparation, printing and filing of the documents
and any
amendments and exhibits thereto required to be filed by the Company
under the
1934 Act; the costs of distributing the Registration Statement as
originally
filed and each amendment and post-effective amendment thereto
(including
exhibits), any preliminary prospectus, the Prospectus and any
documents
incorporated by reference in any of the foregoing documents; the
costs of
printing this Agreement, the Indenture and any Terms Agreement; the
costs of any
filings with the National Association of Securities Dealers, Inc.;
fees paid to
rating agencies in connection with the rating of the Notes; the
fees and
expenses of qualifying the Notes under the securities laws of the
several
jurisdictions as provided in subsection (n) of this Section and of
preparing and
printing a Blue Sky Memorandum (including fees of counsel to the
Agents not to
exceed $[_____] in the aggregate); the reasonable fees and expenses
of counsel
for the Agents; and all other costs and expenses incident to the
performa
