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Exhibit 1.7
LEGGETT & PLATT,
INCORPORATED
$500,000,000
MEDIUM-TERM NOTES, SERIES
[ ]
DISTRIBUTION
AGREEMENT
March
, 2005
Barclays Capital Inc.
200 Park Avenue
New York, NY 10166
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288-0602
Ladies and Gentlemen:
LEGGETT & PLATT,
INCORPORATED, a Missouri corporation (the “ Company
” proposes to issue and sell from time to time its
Medium-Term Notes, Series [ ] (the “
Securities ”) in an aggregate amount up to
$500,000,000 (or the equivalent thereof in one or more foreign
currencies or composite currencies) and agrees with each of you,
individually, an “ Agent ”, and collectively,
the “ Agents ”, as set forth in this
Agreement.
Subject to the terms and
conditions stated herein and to the reservation by the Company of
the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase
Securities from the Company pursuant to Section 2(a) hereof and
(ii) agrees that, except as otherwise contemplated herein, whenever
it determines to sell Securities directly to any Agent as
principal, it will enter into a separate agreement (each a “
Terms Agreement ”), which may be an oral agreement and
may be substantially in the form of Annex I hereto, relating to
such sale in accordance with Section 2(b) hereof. This Agreement
shall not be construed to create either an obligation on the
part
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of the Company to sell any Securities or
an obligation of any of the Agents to purchase Securities as
principal.
The Securities will be issued
under a senior indenture, dated as of
(the “ Indenture ”), between the Company and
JPMorgan Chase Bank, N.A., as Trustee (the “ Trustee
”). The Securities shall have the maturity ranges, interest
rates, if any, redemption provisions and other terms set forth in
the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants
to, and agrees with, each Agent that:
(a) (i) One registration
statement on Form S-3 (File No.
333- )
in respect of the Securities has been filed with the Securities and
Exchange Commission (the “ Commission ”); (ii)
such registration statement and any post-effective amendment(s)
thereto, each in the form heretofore delivered or to be delivered
to such Agent, including all documents incorporated by reference in
the prospectus included in the registration statement [and any
post-effective amendment(s) thereto], have been declared effective
by the Commission in such form; (iii) no other document with
respect to such registration statement or documents incorporated by
reference therein [or any post-effective amendments thereto] has
heretofore been filed or transmitted for filing with the Commission
(other than the prospectus filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the
form heretofore delivered to the Agents); and (iv) no stop order
suspending the effectiveness of any such registration statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act, is hereinafter called a “
Preliminary Prospectus ”; (v) the various parts of
such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
the registration statement at the time such part of the
registration statement became effective but excluding the Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939,
each as amended at the time such part of each such registration
statement became effective, are hereinafter collectively called the
“ Registration Statement ”; (vi) the prospectus
(including, if applicable, any prospectus supplement) relating to
the Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, is hereinafter called the “
Prospectus ”; (vii) any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be;
(viii) any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any supplement
to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a
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“ Pricing
Supplement ”), shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
and incorporated therein by reference; (ix) any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in
the Registration Statement; and (x) any reference to the Prospectus
as amended or supplemented shall be deemed to refer to and include
the Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with Section 4(a)
hereof) in relation to Securities to be sold pursuant to this
Agreement, in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance
with Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents
incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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;
(c) The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”), and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to 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, or to that part of
the Registration Statement that constitutes the Form T-1 Statement
of Eligibility under the Trust Indenture Act of 1939 of the
Trustee;
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(d) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Missouri; and has the
requisite corporate power and authority to execute and deliver the
Securities and this Agreement, to perform its obligations hereunder
and thereunder, and to own its properties and conduct its business
as described in the Prospectus.
(e) The issuance and sale of
the Securities in an aggregate principal amount not in excess of an
aggregate principal amount which shall not exceed $500,000,000 (or
the equivalent in a foreign currency or currencies), has been duly
authorized by the Company and, when the Securities have been duly
executed by the Company and authenticated and delivered by the
Trustee, and payment therefor has been received by or on behalf of
the Company, such Securities will constitute legal, valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles.
(f) This Agreement has been
duly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and
by general equitable principles and except that no representation
or warranty is made with respect to the enforceability of Section 7
hereof.
(g) The Company and its
subsidiaries have not 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 is material to the Company and its
subsidiaries taken as a whole otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been any material decrease in the capital
stock of the Company or material increase in consolidated long-term
debt (as such terms are defined in accordance with generally
accepted accounting principles) of the Company and its subsidiaries
or any material adverse change, or any development that the Company
believes would be reasonably likely to result in a material adverse
change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus;
(h) (i) The issue and sale of
the Securities, the compliance by the Company with all of the
provisions of the Securities, the Indenture, this Agreement and any
Terms Agreement, and the consummation of the transactions herein
and therein contemplated will not (A) result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement
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or other agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject or (B) result in any violation of (1) the provisions of
the Articles of Incorporation, as amended, or the By-laws of the
Company or (2) 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; and (ii) no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required on the part of the
Company for the solicitation of offers to purchase Securities, the
issue and sale of the Securities 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, or will have
been prior to the Commencement Date (as defined in Section 3
hereof), obtained under the 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 in connection with the solicitation by such Agent of
offers to purchase Securities from the Company and with purchases
of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(i) Other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending 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 would individually or in the aggregate reasonably
be expected to have a material adverse effect on the current or
future consolidated financial position, stockholders’ equity
or results of operations of the Company and its subsidiaries taken
as a whole, and, to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(j) Immediately after any
sale of Securities by the Company hereunder or under any Terms
Agreement, the aggregate amount of Securities that will have been
issued and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other than
such Securities) that will have been issued and sold pursuant to
the Registration Statement will not exceed the amount of debt
securities registered under the Registration Statement;
and
(k) The Company is not an
“investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
2. (a) On the basis of the
representations and warranties herein contained, and subject to the
terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to purchase
the Securities from the Company upon the terms and conditions set
forth in the Prospectus as amended or supplemented from time to
time. The Company reserves the right to offer, solicit offers and
sell Securities directly on its own behalf to any person, to sell
Securities through others (provided that any other agent
or
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broker dealer will execute an agreement
with the Company that includes terms and conditions that are
substantially identical to the terms and conditions included in
this Agreement), and after not less than 5 business days prior
written notice to the Agents, to designate and select additional
agents to become party to this Agreement. In the case of any sale
not resulting from a solicitation made by any Agent, no commission
will be payable to the Agents with respect to such sale. In no
event shall any offers, solicitation of offers or sales of debt
securities by the Company result in (i) any violation of applicable
federal or state securities laws (and, if requested by any such
Agent, the Company shall deliver an opinion of counsel in a form
reasonably satisfactory to such Agent, to such effect,
provided , that such counsel need not express any opinion as
to accuracy or completeness of disclosure in any other such sale by
the Company) or (ii) any Agent’s inability to re-sell any
Securities that it has purchased as a principal pursuant to this
Agreement or any Terms Agreement.
Procedural details relating
to the issue and delivery of Securities, the solicitation of offers
to purchase Securities and the payment in each case therefor shall
be as set forth in the Administrative Procedures attached hereto as
Annex II as it may be amended from time to time by written
agreement between the Agents and the Company (the “
Administrative Procedures ”). The provisions of the
Administrative Procedures shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms
Agreement. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by each of them in the Administrative Procedures. The
Company will furnish to the Trustee a copy of the Administrative
Procedures as from time to time in effect.
The Company reserves the
right, in its sole discretion, to instruct the Agents orally (with
confirmation in writing) or in writing to suspend at any time, for
any period of time or permanently, the solicitation of offers to
purchase the Securities. Upon receipt of such instructions from the
Company, the Agents will forthwith suspend solicitation of offers
to purchase Securities from the Company until such time as the
Company has advised the Agents that such solicitation may be
resumed. During such period, the Company shall not be required to
comply with the provisions of Sections 4(h), 4(i), 4(j) and 4(k).
Upon advising the Agents that such solicitation may be resumed,
however, the Company shall be required to comply with the
provisions of Sections 4(h), 4(i), 4(j) and 4(k) prior to
resumption of such solicitations. In addition, any failure by the
Company to comply with its obligations hereunder, including without
limitation its obligations to deliver the documents required by
Sections 4(h), 4(i), 4(j) and 4(k), shall automatically terminate
the Agents’ obligations hereunder, including without
limitation its obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder
as principal.
The Company agrees to pay
each Agent a commission, at the time of settlement of any sale of a
Security by the Company as a result of a solicitation made by such
Agent, in an amount equal to the applicable percentage of the
principal amount of such Security sold as set forth in Schedule A
hereto.
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(b) Each sale of Securities
to any Agent as principal shall be made in accordance with the
terms of this Agreement and (unless the Company and such Agent
otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent; a
Terms Agreement may also specify certain provisions relating to the
re-offering of such Securities by such Agent; the commitment of any
Agent to purchase Securities as principal, whether 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 Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Company for such Securities, any
provisions relating to rights of, and default by, underwriters
acting together with such Agent in the re-offering of the
Securities and the time and date and place of delivery of and
payment for such Securities; and such Terms Agreement shall also
specify any requirements for opinions of counsel,
accountants’ letters and officers’ certificates
pursuant to Section 4 hereof. Each Agent proposes to offer
Securities purchased by it as principal for sale at prevailing
market prices or prices related thereto at the time of sale, which
may be equal to, greater than or less than the price at which such
Securities are purchased by such Agent from the Company.
For each sale of Securities
to an Agent as principal that is not made pursuant to a Terms
Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set
forth in the Administrative Procedures. For each such sale of
Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission
(or grant an equivalent discount) as provided in Section 2(a)
hereof and in accordance with the schedule set forth
therein.
Each time and date of
delivery of and payment for Securities to be purchased by an Agent
as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedures, is referred to
herein as a “ Time of Delivery ”.
(c) Each Agent agrees, with
respect to any Security denominated in a currency other than U.S.
dollars, as agent, directly or indirectly, not to solicit offers to
purchase, and as principal under any Terms Agreement or otherwise,
directly or indirectly, not to offer, sell or deliver, such
Security in, or to residents of, the country issuing such currency,
except as permitted by applicable law.
3. The documents required to be
delivered pursuant to Section 6 hereof on the Commencement Date (as
defined below) shall be delivered to the Agents at the offices of
Cravath, Swaine & Moore LLP, New York, New York, at 11:00 a.m.,
New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the
Agents and the Company but in no event shall be later than the day
prior to the date on which solicitation of offers to purchase
Securities is
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commenced or on which any Terms
Agreement is executed (such time and date being referred to herein
as the “ Commencement Date ”).
4. The Company covenants and agrees with
each Agent:
(a) (i) To make no amendment
or supplement to the Registration Statement or the Prospectus (A)
prior to the Commencement Date without affording each Agent a
reasonable opportunity to review and comment thereon or (B) after
the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of
Delivery that is disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable
notice thereof; provided , however , that (1) the
foregoing requirement shall not apply to any of the Company’s
filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of
which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the Commission and
(2) any Prospectus supplement or Pricing Supplement that merely
sets forth the terms or a description of particular Securities
shall only be reviewed and approved by the Agent or Agents offering
such Securities; (ii) to prepare, with respect to any Securities to
be sold through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Securities in a form
previously approved by such Agent and to file such Pricing
Supplement pursuant to Rule 424(b)(3) under the Act not later than
the close of business of the Commission on the fifth business day
after the date on which such Pricing Supplement is first used (or
the business day immediately preceding the Time of Delivery if
earlier); (iii) to make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing
Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon
provided , however , that (1) the foregoing
requirement shall not apply to any of the Company’s filings
with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, and (2) any Prospectus
supplement or Pricing Supplement that merely sets forth the terms
or a description of particular Securities shall only be reviewed
and approved by the Agent or Agents offering such Securities; (iv)
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
and during such same period to advise such Agent, promptly after
the Company receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or has become
effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to
Securities not purchased through or by such Agent) has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration
8
Statement or Prospectus or
for additional information; and (v) in the event of the issuance of
any such stop order or of any such order preventing or suspending
the use of any such prospectus or suspending any such
qualification, to promptly use its reasonable best efforts to
obtain its withdrawal;
(b) Promptly from time to
time to take such action as such Agent may reasonably request to
qualify the Securities for offering and sale under the securities
laws of such jurisdictions in the United States as such Agent may
request (and in such foreign jurisdictions as the Company and the
Agents may mutually agree) and to comply with such laws so as to
permit the continuance of sales and dealings therein for as long as
may be necessary to complete the distribution or sale of the
Securities; provided , however , that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or as a dealer in securities or to file a general
consent to service of process or subject itself to taxation in any
jurisdiction;
(c) To furnish such Agent
with copies of the Registration Statement and each amendment
thereto, with copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except as provided
in the Administrative Procedures), in the form in which it is filed
with the Commission pursuant to Rule 424 under the Act, and with
copies of the documents incorporated by reference therein, all in
such quantities as such Agent may reasonably request from time to
time; and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as
principal) and if at such time any event has occurred as a result
of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other
reason it is necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to
comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify such Agent and request such Agent, in its capacity as
agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall
forthwith cease such solicitations and keep such notification in
strictest confidence); and if the Company decides to amend or
supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by
telephone (with confirmation in writing) and, subject to the second
proviso below, to prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement
or the Prospectus as then amended or supplemented that will correct
such statement or omission or effect such compliance;
provided , however , that if during such same period
such Agent continues to own Securities purchased from the Company
by such Agent as principal or such Agent is otherwise required to
deliver a prospectus in respect of transactions in the Securities,
the Company shall promptly prepare and file with the Commission
such an amendment or supplement; provided, further ,
however, that
9
notwithstanding any other
provision of this Agreement, that if to do so would result in the
Company disclosing information that the Company is required by law,
contract or otherwise to hold in confidence or which the Company
believes is in the best interests of its shareholders to hold in
confidence, the Company shall not be required to prepare and file
such amendment or supplement, provided, further that in any
such event such Agent shall have the right to require the Company
to repurchase such Securities from such Agent at the price such
Securities were sold to such Agent by the Company, plus accrued
interest, less the Agent’s commission to the extent the Agent
actually received a commission as an alternative to purchasing such
Securities at a discount from the Company pursuant to this
Agreement;
(d) To make generally
available to its security holders as soon as practicable, but in
any event not later than eighteen months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities
are outstanding, to furnish to each Agent such information
concerning the business and financial condition of the Company as
such Agent may from time to time reasonably request;
(f) That, from the date of
any Terms Agreement with such Agent or other agreement by such
Agent to purchase Securities as principal and continuing to and
including the termination of the trading restrictions for the
Securities purchased thereunder, as notified to the Company by such
Agent, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company that both mature more than 9
months after such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of such Agent;
provided , that in no event shall borrowings under the
Company’s revolving credit agreements and lines of credit or
issuances of commercial paper be deemed to be substantially similar
to the Securities;
(g) That each acceptance by
the Company of an offer to purchase Securities hereunder (including
any purchase by such Agent as principal not pursuant to a Terms
Agreement), and each execution and delivery by the Company of a
Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties
of the Company contained in or made pursuant to this Agreement are
true and correct as of the date of such acceptance or of such Terms
Agreement, as the case may be, as though made at and as of such
date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made
at and as of such date (except that such representations and
warranties relating to the Registration Statement
10
and the Prospectus shall be
deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented relating to such
Securities);
(h) That reasonably in
advance of each time the Registration Statement or the Prospectus
is amended or supplemented, including each time a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus (other than by (i) an amendment relating solely to
securities other than the Securities, (ii) a Current Report on Form
8-K, (iii) the Company’s quarterly reports filed on Form 10-Q
and (iv) a Pricing Supplement; unless in each case, in the
reasonable judgment of the Agents, the Agents request such
documents to be delivered), and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of an opinion or
opinions by Cravath, Swaine & Moore LLP, counsel to the Agents,
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish to such counsel such papers
and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in
Section 6(b) hereof;
(i) That each time the
Registration Statement or the Prospectus is amended or
supplemented, including each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus
(other than by (i) an amendment relating solely to securities other
than the Securities, (ii) a Current Report on Form 8-K, (iii) the
Company’s quarterly reports filed on Form 10-Q and (iv) a
Pricing Supplement; unless in each case, in the reasonable judgment
of the Agents, the Agents request such documents to be delivered)
and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a written opinion of the Company’s
General Counsel, or other counsel for the Company reasonably
satisfactory to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such
sale, as the case may be, in form reasonably satisfactory to such
Agent, to the effect that such Agent may rely on the opinion of
such counsel referred to in Section 6(c) hereof that was last
furnished to such Agent to the same extent as though it were dated
the date of such letter authorizing reliance (except that the
opinion or opinions in such last opinion relating to the
Registration Statement and the Prospectus shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion
of the same tenor as the opinion of such counsel referred to in
Section 6(c) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date;
(j) That each time the
Registration Statement or the Prospectus is amended or
supplemented, including each time that a document filed under the
Act or the Exchange Act is incorporated by reference into the
Prospectus, in either case to set forth financial information
included in or derived from the Company’s consolidated
financial
11
statements or accounting
records (other than by (i) an amendment relating solely to
securities other than the Securities, (ii) a Current Report on Form
8-K and (iii) a Pricing Supplement; unless in each case, in the
reasonable judgment of the Agents, the Agents request such
documents to be delivered), and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of a letter under
this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement to
furnish forthwith such Agent a letter, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating
to such sale, as the case may be, in form reasonably satisfactory
to such Agent, of the same tenor as the letter referred to in
Section 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended or supplemented to the date
of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived
from the accounting records of the Company, to the extent such
financial statements and other information are available as of a
date not more than five business days prior to the date of such
letter; provided , however , that, with respect to
any financial information or other matter, such letter may
reconfirm as true and correct at such date as though made at and as
of such date, rather than repeat, statements with respect to such
financial information or other matter made in the letter referred
to in Section 6(d) hereof which was last furnished to such
Agent;
(k) That each time the
Registration Statement or the Prospectus is amended or
supplemented, including each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus
(other than by (i) an amendment relating solely to securities other
than the Securities, (ii) a Current Report on Form 8-K, (iii) the
Company’s quarterly reports filed on Form 10-Q and (iv) a
Pricing Supplement; unless in each case, in the reasonable judgment
of the Agents, the Agents request such documents to be delivered)
and each time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery
of a certificate under this Section 4(k) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to such
Agent a certificate, dated the date of such supplement, amendment,
incorporation or Time of Delivery relating to such sale, as the
case may be, in such form and executed by such officers of the
Company as shall be reasonably satisfactory to such Agent, to the
effect that the statements contained in the certificates referred
to in Section 6(i) hereof that was last furnished to such Agent are
true and correct at such date as though made at and as of such date
(except that such statements relating to the Registration Statement
and the Prospectus shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such certificate, certificates of the same
tenor as the certificates referred to in said Section 6(i) but
modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date; and
12
(l) To offer to any person
who has agreed to purchase Securities from the Company as the
result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedures,
any condition set forth in Section 6(a), 6(e), 6(f) or 6(g) hereof
has not been satisfied (it being understood that the judgment of
such person with respect to the impracticability or inadvisability
of such purchase of Securities shall be substituted, for purposes
of this Section 4(l), for the respective judgments of an Agent with
respect to certain matters referred to in such Sections 6(e) and
6(g), and that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under such Sections
6(e) and 6(g) on behalf of any such person).
5. The Company covenants and agrees with
each Agent that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, the Prospectus
and any Pricing Supplements and all other amendments and
supplements thereto and the mailing and delivering of copies
thereof to such Agent; (ii) the reasonable fees, disbursements and
expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby, any opinions to
be rendered by such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under any Terms
Agreement; (iii) the cost of printing, producing or reproducing
this Agreement, any Terms Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iv)
all expenses in connection with the qualification of the Securities
for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the reasonable fees and
disbursements of counsel for the Agents in connection with such
qualification and in connection with the Blue Sky and legal
investment surveys; (v) any fees charged by securities rating
services for rating the Securities; (vi) any filing fees incident
to, and the reasonable fees and disbursements of counsel for the
Agents in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the Securities; (viii)
the fees and expenses of any Trustee and any agent of any Trustee
and any transfer or paying agent of the Company and the reasonable
fees and disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such advertising
expenses have been approved in advance in writing by the Company;
and (x) all other costs and expenses incident to the performance of
its obligations hereunder that are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and
8 hereof, each Agent shall pay all other expenses it
incurs.
13
6. The obligation of any Agent, as agent
of the Company, at any time (“ Solicitation Time
”) to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal,
pursuant to any Terms Agreement or otherwise, shall in each case be
subject, in such Agent’s discretion, to the condition that
all representations and warranties and other statements of the
Company herein (and, in the case of an obligation of an Agent under
a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date
and any applicable date referred to in Section 4(k) hereof that is
prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or Time of
Delivery, as the case may be (except that such representations and
warranties relating to the Registration Statement and the
Prospectus shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date), the
condition that prior to such Solicitation Time or Time of Delivery,
as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) (i) With respect to any
Securities sold at or prior to such Solicitation Time or Time of
Delivery, as the case may be, the Prospectus as amended or
supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 4(a) hereof; (ii) no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and (iii) all requests
for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of such
Agent;
(b) Cravath, Swaine &
Moore LLP, counsel to the Agents, shall have furnished to such
Agent (i) such opinion or opinions, dated the Commencement Date, in
form reasonably acceptable to such Agent, and (ii) if and to the
extent requested by such Agent, with respect to each applicable
date referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an
opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions that were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that any such later opinion or
opinions relating to the Registration Statement or the Prospectus
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any
case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to
in clause (i) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date; and in
each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters;
14
(c) The Company’s
General Counsel, or other counsel for the Company reasonably
satisfactory to such Agent, shall have furnished to such Agent
their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case
may be (except that any such later opinion or opinions relating to
the Registration Statement or the Prospectus shall be deemed to
relate to the Registration Statement and the Prospectus as amended
and supplemented to such date), in form and substance reasonably
satisfactory to such Agent, substantially to the effect
that
(i) the Company is a
corporation validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business in all material respects as
described in the Prospectus;
(ii) each subsidiary
constituting 10% or more of the consolidated total assets of the
Company as of such date (each such subsidiary being hereinafter
referred to as a “ Significant Subsidiary ”) is
a corporation validly existing and in good standing under the laws
of its jurisdiction of incorporation; and all of the issued shares
of capital stock of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, to such counsel’s
knowledge free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe that you and they are justified in relying upon
such opinions and certificates);
(iii) the Company’s
authorized equity capitalization is as set forth in the Prospectus
as of the date or dates indicated herein; the Securities conform in
all material respects to the description thereof contained in the
Prospectus; and, if the Securities are to be listed on any
securities exchange, authorization therefor has been given, subject
to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect to
the Securities with such securities exchange and such counsel has
no reason to believe that the Securities will not be authorized for
listing, subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) the Indenture has been
duly authorized, executed and delivered by the Company and has been
duly qualified under the Trust Indenture Act and constitutes a
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity
principles;
15
(v) any series of Securities
established on or prior to the date of such opinion has been duly
authorized and established in conformity with the Indenture, and,
when the terms of a particular Security and of its issuance and
sale have been duly authorized and established by all necessary
corporate action in conformity with the Indenture, and such
Security has been duly completed, executed, authenticated and
issued in accordance with the Indenture and delivered against
payment as contemplated by this Agreement, such Security will
constitute a legal, valid and binding obligation of the Company
entitled to the benefits of the Indenture and enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles, it being understood that
such counsel may (a) assume that at the time of the issuance, sale
and delivery of each Security the authorization of such series has
not been modified or rescinded and there has not occurred any
change in law affecting the validity, legally binding character or
enforceability of such Security and (b) state that as of the date
of such opinion a judgment for money in an action based on
Securities denominated in foreign currencies or currency units in a
federal or state court in the United States ordinarily would be
enforced in the United States only in United States dollars, and
that the date used to determine the rate of conversion of the
foreign currency or currency unit in which a particular Security is
denominated into United States dollars will depend upon various
factors, including which court renders the judgment;
(vi) to the best knowledge of
such counsel, there is no action, suit or proceeding pending or
overtly threatened before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be disclosed in the
Registration Statement that is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, that is not
described or filed as required; and the statements included or
incorporated in the Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company fairly
summarize such matters to the extent required by law;
(vii) such counsel has been
advised by the Commission’s staff that the Registration
Statement has become effective under the Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened,
and the Registration Statement and the Prospectus (other than the
financial statements, related financial statement schedules and
other financial and statistical information and written information
relating to and furnished by the Agents contained therein or
omitted therefrom, and except for the part of the Registration
Statement that constitutes the Form T-1 Statement of Eligibility
under the Trust Indenture Act of 1939 of the Trustee, as to which
such counsel need express no opinion) comply as to form in all
material respects
16
with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture
Act and the respective rules thereunder;
(viii) this Agreement and any
applicable Terms Agreement have been duly authorized, executed and
delivered by the Company;
(ix) no consent, approval,
authorization or order of any federal or Missouri court or
governmental agency or body is required to be obtained by the
Company for the consummation of the transactions contemplated
herein or in any applicable Terms Agreement, except such as have
been obtained under the Act and the Trust Indenture Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the solicitation by the Agents to purchase the
Securities and such other approvals (specified in such opinion) as
have been obtained;
(x) neither the execution and
delivery by the Company of the Indenture, the issue and sale of the
Securities, nor the consummation by the Company of any other of the
transactions herein contemplated nor the fulfillment by the Company
of the terms hereof or of any applicable Terms Agreement will
result in a breach or violation of, or constitute a default under
(A) the articles of incorporation or by-laws of the Company, (B)
the terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or any of
its Significant Subsidiaries is a party or bound, (C) any judgment,
order or decree known to such counsel to be specifically applicable
to the Company or any of its Significant Subsidiaries of any
federal or Missouri court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its Significant Subsidiaries or (D) any provision
of federal or Missouri statute or governmental regulation
applicable to the Company;
(xi) no holders of securities
of the Company have rights to the registration of such securities
under the Registration Statement; and
(xi) the Company is not an
“investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
Such opinion shall also state
that, although such counsel does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or Prospectus, nothing has come to such
counsel’s attention that causes such counsel to believe that
at the Effective Date the Registration Statement (other than the
financial statements, related financial statement schedules and
other financial and statistical information and written information
relating to and furnished by the Agents contained therein or
omitted therefrom, and except for the part of the Registration
Statement that constitutes the Form T-1 Statement of Eligibility
under the Trust Indenture Act of the Trustee, as to which such
counsel need express no opinion)
17
contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus (other than the financial
statements, related schedules and other financial and statistical
information and written information furnished by the Agents
contained therein or omitted therefrom as to which such counsel
need express no opinion) includes any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion,
such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the State of Missouri or the
United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Agents and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and public officials.
(d) Not later than 11:00
a.m., New York City time, on the Commencement Date and on each
applicable date referred to in Section 4(j) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have
certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Prospectus as amended and supplemented to such date shall have
furnished to such Agent a letter, dated the Commencement Date or
such applicable date, as the case may be, in form and substance
reasonably satisfactory to such Agent, to the effect set forth in
Annex III hereto;
(e) (i) The Company and its
subsidiaries shall not have sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery 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 is material to the
Company and its subsidiaries taken as a whole otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery and
(ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery there shall not have been any
material decrease in the capital stock of the Company or material
increase in consolidated long-term debt (as such terms are defined
in accordance with generally accepted accounting principles) of the
Company and its subsidiaries or any change, or any development that
the Company believes would be reasonably likely to result in a
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the
18
Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of such
Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of
offers to purchase Securities from the Company or the purchase by
such Agent of Securities from the Company as principal, as the case
may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery;
(f) On or after the date
hereof (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “
nationally recognized statistical rating organization
”, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the
Company’s debt securities;
(g) On or after the date
hereof there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company’s securities on
the New York Stock Exchange; or (iii) a general moratorium on
commercial banking activities in New York declared by either
federal, New York state or Missouri state authorities; or (iv) the
outbreak or material escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war, if the effect on financial markets of any such
event specified in the Clause (iv) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the purchase
of the Securities from the Company as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated in the Prospectus;
(h) With respect to any
Security denominated in a currency other than the U.S. dollar, more
than one currency or a composite currency or any Security the
principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a
suspension or material limitation in foreign exchange trading in
such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse
change in the existing financial, political or economic conditions
of, or the declaration of war or a national emergency by, the
country or countries issuing such currency, currencies or composite
currency or the imposition or proposal of exchange controls by any
governmental authority in the country or countries issuing such
currency, currencies or composite currency if the effect on
financial markets of any such event specified in this
19
paragraph in the judgment of
such Agent makes it impracticable or inadvisable to proceed with
the purchase of the Securities from the Company as principal
pursuant to the applicable Terms Agreement or otherwise, as the
case may be, on the terms and in the manner contemplated in the
Prospectus as amended and supplemented to such date; and
(i) The Company shall have
furnished or caused to be furnished to such Agent a certificate of
an officer of the Company dated the Commencement Date and each
applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case
may be, in such form and executed by such officers of the Company
as shall be reasonably satisfactory to such Agent, as to the
accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date,
as the case may be (except that the statements relating to the
Registration Statement and the Prospectus shall relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date), as to the performance by the Company of
all of its obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be, as
to the following matters and as to such other matters as such Agent
may reasonably request:
(a) With respect to any
Securities sold at or prior to the Solicitation Time or Time of
Delivery, as the case may be, (i) the Prospectus as amended or
supplemented (including the Pricing Supplement) with respect to
such Securities has been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 4(a) of the Agreement; (ii) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission; and (iii) all requests for additional
information on the part of the Commission have been complied
with;
(b) (i) The Company and its
subsidiaries have not sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery 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 is material to the
Company and its subsidiaries taken as a whole otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery and
(ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery there has not been any material
decrease in the capital stock of the Company or material increase
in consolidated long-term debt (as such terms are
20
defined in accordance with
generally accepted accounting principles) of the Company and its
subsidiaries or any material adverse change, or an
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