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EXHIBIT 1.1
$300,000,000
CNF INC.
6.70% SENIOR DEBENTURES DUE 2034
PURCHASE AGREEMENT
April 27, 2004
Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated,
As representatives of the Initial
Purchasers
named in Schedule I hereto,
c/o Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York
10013
Ladies and Gentlemen:
CNF Inc., a Delaware corporation (the "Company"), proposes, subject
to
the terms and conditions stated herein, to
issue and sell to the several parties
named in Schedule I hereto (the "Initial
Purchasers"), for whom you (the
"Representatives") are acting as
representatives, an aggregate of $300,000,000
principal amount of the Senior Debentures
specified above (the "Securities").
1. The
Company represents and warrants to, and agrees with, each of
the
Initial Purchasers that:
(a) A
preliminary offering memorandum, dated April 26,
2004 (the "Preliminary Offering Memorandum") and an offering
memorandum, dated April 27, 2004 (the "Offering Memorandum"), have
been
prepared in connection with the offering of the Securities. Any
reference to the Preliminary Offering Memorandum or the
Offering
Memorandum shall also be deemed to refer to, and include, all
documents
filed with the United States Securities and Exchange Commission
(the
"Commission") pursuant to Section 13(a), 13(c) or 15(d) of the
United
States Securities Exchange Act of 1934, as amended (the
"Exchange
Act"), on or prior to the date of the Preliminary Offering
Memorandum
or the Offering Memorandum, as the case may be, that are
incorporated
by reference therein; and any reference to the Preliminary
Offering
Memorandum or the Offering Memorandum, as the case may be, as
amended
or supplemented, as of any specified date, shall be deemed to
include
any documents filed with the Commission pursuant to Section
13(a),
13(c) or 15(d)
of the Exchange Act after the date of the Preliminary
Offering Memorandum or the Offering Memorandum, as the case may be,
and
prior to such specified date that are incorporated by reference
therein, provided that in any such case is prior to the completion
of
the distribution of the Securities. All documents filed under
the
Exchange Act and incorporated by reference in the Preliminary
Offering
Memorandum or the Offering Memorandum, as the case may
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be, or any amendment or supplement thereto are hereinafter called
the
"Exchange Act Reports." The Preliminary Offering Memorandum, on
the
date thereof, did not contain any untrue statement of a material
fact
or omit to state any material fact required to be stated therein
or
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading. On the
date
hereof and at the Time of Delivery (as defined in Section 4(a)
hereof),
the Offering Memorandum did not, and will not (and any amendment
or
supplement thereto, at the date thereof and at the Time of
Delivery,
will not) contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary
to
make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, however, that
the
foregoing representations and warranties shall not apply to
statements
or omissions in the Preliminary Offering Memorandum or the
Offering
Memorandum or any amendment or supplement thereto made in reliance
upon
and in
conformity with information furnished to the Company in writing
by any Initial Purchaser through either of the Representatives
expressly for use therein.
(b) The
Exchange Act Reports, when they were filed with
the Commission, conformed in all material respects to the
requirements
of the Exchange Act, and none of such documents contained an
untrue
statement of a material fact or omitted to state a material
fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
any
further Exchange Act Reports incorporated by reference in the
Offering
Memorandum, when such documents are filed with the Commission,
will
conform in all material respects to the requirements of the
Exchange
Act, and will not contain an untrue statement of a material fact
or
omit to state a material fact necessary to make the statements
therein,
in the light of the circumstances under which they were made,
not
misleading.
(c) The
Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware
with corporate power and corporate authority under such laws to
own,
lease and operate its properties and conduct its business as
described
in the Offering Memorandum; and the Company is duly qualified
to
transact business as a foreign corporation and is in good standing
in
each other jurisdiction in which it owns or leases property of
a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to
so
qualify or be in good standing would not have a material adverse
effect
on the Company and its subsidiaries, considered as one
enterprise.
(d) Each of
Con-Way Transportation Services, Inc., Menlo
Worldwide, LLC, Menlo Logistics, Inc., and Menlo Worldwide
Forwarding,
Inc. and (each individually, a "Significant Subsidiary" and
collectively, the "Significant Subsidiaries") is a corporation
or
limited liability company, as the case may be, duly organized,
validly
existing and in good standing under the laws of the jurisdiction of
its
organization with power and authority under such laws to own, lease
and
operate its properties and conduct its business as described in
the
Offering Memorandum; and each Significant Subsidiary is duly
qualified
to transact business as a foreign corporation or limited
liability
company, as the case may be, and is in good standing in each
other
jurisdiction in which it owns or leases property of a nature,
or
transacts business of a type, that would make such
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qualification necessary, except to the extent that the failure to
so
qualify or be in good standing would not have a material adverse
effect
on the Company and its subsidiaries, considered as one enterprise.
All
of the outstanding shares of capital stock or other equity
interests,
as the case may be, of each Significant Subsidiary have been
duly
authorized and validly issued and are fully paid and, with respect
to
each Significant Subsidiary that is a corporation, non-assessable
and
are owned by the Company (except for directors' qualifying shares)
or,
in the case of Menlo Logistics, Inc. and Menlo Worldwide
Forwarding,
Inc., by Menlo Worldwide, LLC, free and clear of any pledge,
lien,
security interest, charge, claim, equity, encumbrance or
adverse
interest of any kind (except for restrictions on transfer arising
under
federal or state securities or blue sky laws).
(e) None of
the subsidiaries of the Company, other than
Con-Way Transportation Services, Inc. and Menlo Worldwide, LLC, is
a
"significant subsidiary," as such term is defined in Rule 1-02(w)
of
Regulation S-X of the Securities Act.
(f) The
Securities have been duly authorized and, when
issued and delivered pursuant to this Purchase Agreement and
authenticated in the manner provided in the Indenture dated as of
March
8, 2000 (the "Base Indenture") between the Company and The Bank of
New
York, as successor in interest to Bank One Trust Company,
National
Association, as trustee (the "Trustee"), as supplemented by
Supplemental Indenture No. 1 to be dated as of the Time of
Delivery
(the "Supplemental Indenture" and, together with the Base
Indenture,
the "Indenture"), will have been duly executed, authenticated,
issued
and delivered and will constitute valid and legally binding
obligations
of the Company entitled to the benefits provided by the
Indenture,
under which they are to be issued, enforeceable against the Company
in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent
transfer or other similar laws relating or affecting
creditors' rights generally or by general equitable principals.
The
Exchange Securities (as defined in paragraph (j) of this Section
1)
have been duly authorized for issuance by the Company, and when
issued
and authenticated in accordance with the terms of the Indenture and
the
Exchange Offer (defined below) will have been duly executed,
authenticated, issued and delivered and will constitute valid
and
legally binding obligations of the Company, entitled to the
benefits
provided by the Indenture, enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent transfer or other similar laws relating or affecting
creditors' rights generally or by general equitable principals.
(g) The Base
Indenture has been duly authorized, executed
and delivered and constitutes a valid and legally binding
obligation of
the Company, enforceable in accordance with its terms, subject
to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent
conveyance, fraudulent transfer or other similar laws
relating or affecting creditors' rights generally or by general
equitable principals and except as rights to indemnification
and
contribution may be limited by applicable law or public policy.
(h) The
Supplemental Indenture has been duly authorized
and, when executed and delivered by the Company at the Time of
Delivery
(assuming the due authorization,
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execution and delivery thereof by the Trustee), the
Supplemental
Indenture will constitute a valid and legally binding obligation of
the
Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer or other similar
laws
relating or affecting creditors' rights generally or by general
equitable principals and except as rights to indemnification
and
contribution may be limited by applicable law or public policy.
(i) This
Agreement has been duly authorized, executed and
delivered by the Company.
(j) The
exchange and registration rights agreement, to be
dated as of April 30, 2004 (the "Registration Rights
Agreement"),
between the Company and the Initial Purchasers, has been duly
authorized and, when executed and delivered by the Company
(assuming
the due authorization, execution and delivery thereof by the
Initial
Purchasers), the Registration Rights Agreement will constitute a
valid
and legally binding obligation of the Company, enforceable in
accordance with
its terms, except to the extent enforceability may be
limited by subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent
transfer
or other similar laws relating or affecting creditors' rights
generally
or by general equitable principals and except as rights to
indemnification and contribution under the Registration Rights
Agreement may be limited by applicable law or public policy.
The
Registration Rights Agreement will conform in all material respects
to
the description thereof contained in the Offering Memorandum and
will
be in substantially the form previously delivered to you. Pursuant
to
the Registration Rights Agreement, the Company will agree to file
with
the Commission, under the circumstances set forth therein, (i)
a
registration statement under the Securities Act relating to
another
series of debt securities of the Company with terms
substantially
identical to the Securities (the "Exchange Securities") to be
offered
in exchange for the Securities (the "Exchange Offer") and (ii) to
the
extent required by the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 of the Securities
Act
relating to the resale by certain holders of the Securities, and
in
each case, to use its reasonable best efforts to cause such
registration statements to be declared effective.
(k) The
Securities and the Indenture conform, and the
Exchange Securities will conform, as to legal matters in all
material
respects to the descriptions thereof contained in the Offering
Memorandum.
(l) The
Company had at the date indicated in the Offering
Memorandum a duly authorized, issued and outstanding capitalization
as
set forth in the Offering Memorandum under the caption
"Capitalization." All of the outstanding shares of capital stock of
the
Company have been duly authorized and validly issued and are fully
paid
and non-assessable.
(m) The
Company is not in violation of its charter or
by-laws, and none of the Significant Subsidiaries is in violation
of
its charter (or, in the case of Menlo Worldwide LLC, limited
liability
company agreement) or by-laws, except, in each case, for any
such
violations which, individually and in the aggregate, would not have
a
material adverse
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effect on the Company and its subsidiaries, considered as one
enterprise, and except as otherwise set forth in the Offering
Memorandum, none of the Company or any of the Significant
Subsidiaries
is in default in the performance or observance of any
obligation,
agreement, covenant or condition contained in any contract,
indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument
to which it is a party or by which it is bound or to which any of
its
properties is subject, except for such defaults that would not have
a
material adverse effect on the Company and its subsidiaries,
considered
as one enterprise. The issue and sale of the Securities and the
Exchange Securities, the execution, delivery and performance by
the
Company of this Purchase Agreement, the Securities, the
Exchange
Securities, the Indenture and the Registration Rights Agreement and
the
compliance by the Company with all of its obligations under
this
Purchase Agreement, the Securities, the Exchange Securities,
the
Indenture and the Registration Rights Agreement and the
consummation of
the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the
Company
and do not and will not result in any violation of the charter
or
by-laws of the Company or any Significant Subsidiary, and do not
and
will not violate or conflict with, or result in a breach of any of
the
terms or provisions of, or constitute a default under, or result in
the
creation or imposition of any lien, charge or encumbrance upon
any
property or assets of the Company or any of the Significant
Subsidiaries under any contract, indenture, mortgage, loan
agreement,
note, lease or other agreement or instrument to which the Company
or
any of the Significant Subsidiaries is a party or by which it is
bound
or to which any of their respective properties are subject or
any
existing applicable
law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic
or
foreign, having jurisdiction over the Company or any of the
Significant
Subsidiaries or any of their respective properties (except for
such
violations, conflicts, breaches or defaults or liens, charges
or
encumbrances that would not have a material adverse effect on
the
Company and its subsidiaries, considered as one enterprise).
(n) No
authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or
foreign
(other than under the Securities Act of 1933, as amended (the
"Securities Act"), the Exchange Act, the Trust Indenture Act of
1939,
as amended (the "Trust Indenture Act"), and the securities or blue
sky
laws of the various states and of foreign jurisdictions) is
required
for the valid authorization, issuance, sale and delivery of the
Securities and the Exchange Securities, for the execution, delivery
or
performance by the Company of this Purchase Agreement, the
Registration
Rights Agreement, the Indenture and the Securities and the
Exchange
Securities or for the consummation by the Company of the
transactions
contemplated hereby or thereby, except such of the foregoing as
will be
obtained prior to the Time of Delivery.
(o) Except as
disclosed in the Offering Memorandum, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now
pending
or, to the knowledge of the Company, threatened against or
affecting,
the Company or any of the Significant Subsidiaries or any of
their
respective officers, as applicable, in their capacity as such, in
which
there is a reasonable possibility of an adverse decision that would
(i)
result in any material adverse change in
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the condition (financial or otherwise), earnings, business affairs
or
business prospects of the Company and its subsidiaries, considered
as
one enterprise, (ii) materially and adversely affect the properties
or
assets of the Company and its subsidiaries, considered as one
enterprise, or (iii) materially and adversely affect the
consummation
of the
transactions contemplated in this Purchase Agreement or the
Registration Rights Agreement; the aggregate of all pending legal
or
governmental proceedings that are not described in the Offering
Memorandum to which the Company or any of the Significant
Subsidiaries
is a party or which affect any of their respective properties and
in
which there is a reasonable possibility of an adverse decision,
including ordinary routine litigation incidental to the business
of,
the Company or any of its subsidiaries, would not have a
material
adverse effect on the condition (financial or otherwise),
earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise; and there are no
contracts
or other documents that would be required to be described in a
prospectus to a registration statement under the Securities Act
that
are not described in the Offering Memorandum.
(p) Each
employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as
amended, ("ERISA") that is maintained, administered or contributed
to
by
the Company or any of its subsidiaries for employees or former
employees of the Company or its subsidiaries has been maintained
in
compliance with its terms and the requirements of any
applicable
statutes, orders, rules and regulations, including but not limited
to
ERISA and the Internal Revenue Code of 1986, as amended,
("Code"),
except where the failure to comply would not have a material
adverse
effect on the Company and its subsidiaries, considered as one
enterprise. No prohibited transaction, within the meaning of
Section
406 of ERISA or Section 4975 of the Code has occurred with respect
to
any such plan excluding transactions effected pursuant to a
statutory
or
administrative exemption, except where such prohibited
transaction
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise. For each such plan
which is
subject to the funding rules of Section 412 of the Code or Section
302
of ERISA no "accumulated funding deficiency" as defined in Section
412
of the Code has been incurred, except where the "accumulated
funding
deficiency" has been waived by the Internal Revenue Service, and
the
deficiency would not have a material adverse effect on the Company
and
its subsidiaries, considered as one enterprise. There is no
reasonable
likelihood that the Company or any of its subsidiaries could
incur
liability under Title IV of ERISA or suffer the imposition of one
or
more liens under ERISA or the Code with respect to any such plan
or
other employee benefit plan, except as otherwise disclosed in
or
contemplated by the Offering Memorandum or except for such
liability or
lien which would not have a material adverse effect on the Company
and
its subsidiaries, considered as one enterprise. With respect to
any
employee benefit plan that is a multiemployer plan as defined
in
Section 3(37) of ERISA, or another plan not sponsored by the
Company,
the representations in this paragraph (n) of Section 1 are made to
the
best knowledge and belief of the Company.
(q) The
Company has no knowledge of any actionable
violation by the Company or any of its subsidiaries of any
federal,
state or local law relating to employment and employment
practices,
discrimination in the hiring, promotion or pay of employees, or
any
applicable wage or hour laws, which, individually or in the
aggregate,
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would result in a material adverse effect on the Company and
its
subsidiaries,
considered as one enterprise. There is (i) no material
unfair labor practice complaint pending or, to the knowledge of
the
Company, threatened against the Company before the National
Labor
Relations Board or any state or local labor relations board, nor
are
any material grievance or arbitration proceedings arising under
any
collective bargaining agreement pending or, to the knowledge of
the
Company, threatened against the Company, (ii) no labor strike,
dispute,
slowdown or stoppage ("Labor Dispute") in which the Company is
involved, nor, to the knowledge of the Company, is any Labor
Dispute
imminent, other than routine disciplinary and grievance matters,
and
(iii)
except as disclosed in or contemplated by the Offering
Memorandum, no question concerning union representation within
the
meaning of the National Labor Relations Act existing with respect
to
the employees of the Company and, to the knowledge of the Company,
no
union organizing activities are taking place by employees of
the
Company or any of its subsidiaries, which, with respect to any
matter
specified in clauses (i), (ii) or (iii) above, whether
considered
singly or in the aggregate, would have a material adverse effect on
the
Company and its subsidiaries, considered as one enterprise.
(r) KPMG LLP,
who reported upon the audited financial
statements and related notes included or incorporated by reference
in
the Offering Memorandum, is an independent public accountant
with
respect to the Company in accordance with the provisions of the
Securities Act and the rules and regulations of the Commission
thereunder.
(s) The
financial statements, together with the related
notes and schedules thereto, included or incorporated by reference
in
the Offering Memorandum present fairly in all material respects
the
consolidated financial position, results of operations and cash
flow of
the Company and its subsidiaries at the respective dates and for
the
respective periods to which they apply; such statements and
related
notes and schedules thereto have been prepared in accordance with
U.S.
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and
the
other financial and statistical information and data set forth in
the
Offering Memorandum in all material respects, present fairly
the
information purported to be shown thereby at the respective dates
or
for the respective periods to which they apply and, to the extent
that
such information is set forth in or has been derived from the
financial
statements and accounting books and records of the Company, have
been
prepared on a basis consistent with such financial statements and
the
books and records of the Company.
(t) Since the
respective dates as of which information is
given in the Offering Memorandum, except as otherwise stated
therein or
contemplated thereby, there has not been (i) any material
adverse
change, or any development involving a prospective material
adverse
change, in the condition (financial or otherwise), earnings,
business
affairs or business prospects of the Company and its
subsidiaries,
considered as one enterprise, whether or not arising in the
ordinary
course of business, (ii) any transaction or agreement entered into
by
the Company, whether or not arising in the ordinary course of
business,
that is material to the Company and its subsidiaries, considered as
one
enterprise, (iii) any dividend or distribution of any kind
declared,
paid or made by the Company on its capital stock, except for
regular
periodic dividends on its capital stock or
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on the preferred securities of its subsidiary trust, or (iv) any
change
in the capital stock or long-term debt of the Company or any of
its
subsidiaries, except for the issuance of the Company's common
stock
upon the conversion of the Company's Series B Cumulative
Convertible
Preferred Stock or upon conversion of the preferred securities of
the
Company's subsidiary trust, or the issuance of capital stock,
options
and other securities under existing officer, director or
employee
benefit plans or upon the exercise of options issued under existing
or
prior officer, director or employee benefit plans, or the purchase
by
the Company or any of its subsidiaries of the Company's common
stock in
connection with its Thrift and Stock Plan in accordance with
past
practice, and except for changes in long-term debt in the
ordinary
course of business.
(u) The
Company and the Significant Subsidiaries each
owns, possesses or has obtained all governmental licenses,
permits,
certificates, consents, orders, approvals and other
authorizations
necessary to own or lease, as the case may be, and to operate
its
properties and to carry on its business as presently conducted, and
the
Company has not received any notice of proceedings relating to
revocation or modification of any such licenses, permits,
certificates,
consents, orders, approvals or authorizations, except in each case
for
such licenses, permits, certificates, consents, orders, approvals
and
other authorizations or revocations or modifications thereof
which
would not have a material adverse effect on the Company and its
subsidiaries considered as one enterprise. Each of the Company and
the
Significant Subsidiaries is in compliance with all laws and
regulations
relating to the conduct of its business as conducted as of the date
of
the Offering Memorandum, except where the failure to be in
compliance
would not have a material adverse effect on the Company and its
subsidiaries,
considered as one enterprise.
(v) The
Company is not and, after giving effect to the
offering and the sale of the Securities, will not be an
"investment
company" or a company controlled" by an "investment company" within
the
meaning of the Investment Company Act of 1940, as amended.
(w) Except as
would not, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries,
considered as one
enterprise, and except as otherwise set forth in or
contemplated by the Offering Memorandum, (i) none of the Company or
any
of its subsidiaries is in violation of any federal, state or local
laws
and regulations relating to pollution or protection of human health
or
the environment, including, without limitation, laws and
regulations
relating to emissions, discharges, releases or threatened releases
of
toxic or hazardous substances, materials or wastes, or petroleum
and
petroleum products ("Materials of Environmental Concern"), or
otherwise
relating to the protection of human health and safety, or the
use,
treatment, storage, disposal, transport or handling of Materials
of
Environmental Concern (collectively, "Environmental Laws"),
which
violation includes, but is not limited to, noncompliance with, or
lack
of, any permits or other environmental authorizations, and (ii)
(A)
none of the Company or any of its subsidiaries has received any
communication (written or oral), whether from a governmental
authority
or otherwise, alleging any such violation or noncompliance, and
there
are no circumstances, either past, present or that are
reasonably
foreseeable, that could reasonably be expected to lead to any
such
violation in the future, (B) there is no pending or, to the
knowledge
of the Company, threatened claim, action,
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investigation or notice (written or oral) by any person or
entity
alleging potential liability for investigatory, cleanup, or
governmental response costs, or natural resources or property
damages,
or personal injuries, attorney's fees or penalties relating to (x)
the
presence, or release into the environment, of any Materials of
Environmental Concern at any location owned or operated by the
Company
or any of its subsidiaries now or in the past, or (y)
circumstances
forming the basis of any violation or potential violation, of
any
Environmental Law (collectively, "Environmental Claims"), and (C)
there
are no past or present actions, activities, circumstances,
conditions,
events or incidents that could form the basis of any
Environmental
Claim against the Company or any of its subsidiaries or against
any
person or entity for whose acts or omissions the Company or any of
its
subsidiaries is or may reasonably be expected to be liable,
either
contractually or by operation of law. In the ordinary course of
business, the Company and/or certain of its subsidiaries, as
appropriate, have conducted environmental investigations of, and
have
reviewed reasonably available information regarding, the
business,
properties and operations of the Company and its subsidiaries, and
of
other properties within the vicinity of their business, properties
and
operations, as appropriate for the circumstances of each such
property
and operation; on the basis of such reviews and investigations,
the
Company has reasonably concluded that, except as disclosed or
contemplated by the Offering Memorandum, any costs and
liabilities
associated with such matters would not have, singly or in the
aggregate, a material adverse effect on the Company and its
subsidiaries, considered as one enterprise, or otherwise
require
disclosure in the Offering Memorandum.
(x) No person
has the right to require the Company to
register any securities for offering and sale under the Securities
Act
by reason
of the issue and sale of the Securities or the filing of a
registration statement in connection with the Exchange Offer.
(y) The
Company and each of the Significant Subsidiaries
have timely filed (or have had timely filed on their behalf)
all
material Tax returns required by applicable law to be filed by
them
prior to the date hereof (taking into account any properly
granted
extensions of time to file any Tax returns), and all such Tax
returns
are true, complete, and correct in all material respects. Except
as
otherwise stated or described in the Offering Memorandum, the
Company
and each of the Significant Subsidiaries have paid (or have had
paid on
their behalf) all material Taxes (as defined below) due or claimed
to
be due from the Company, other than those (i) currently payable
without
penalty or interest or (ii) being contested in good faith and
by
appropriate proceedings. Other than Tax items relating to
proposed
assessments or Audits (as defined below) which have been disclosed
to
counsel for the Initial Purchasers or which are set forth or de
