EXHIBIT 1.8
GOLDMAN SACHS CAPITAL
[ ]% Trust Preferred Securities
(Liquidation amount $[ ] per Trust Preferred Security)
guaranteed to the extent set forth in the Guarantee by
THE GOLDMAN SACHS GROUP, INC.
[Form of]
UNDERWRITING AGREEMENT
[ ]
Goldman, Sachs & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Goldman Sachs Capital (the "Trust"), a statutory trust created under the
Statutory Trust Act of the State of Delaware (the "Delaware Statutory Trust
Act"), and The Goldman Sachs Group, Inc., a Delaware corporation, as depositor
of the Trust and as guarantor (the "Guarantor"), propose, subject to the terms
and conditions stated herein, that the Trust issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of [ ] [ ]% Trust
Preferred Securities (liquidation amount $[ ] per Trust Preferred Security) (the
"Securities"), representing undivided beneficial interests in the assets of the
Trust, guaranteed by the Guarantor as to the payment of distributions, and as to
payments on liquidation or redemption, to the extent set forth in a guarantee
agreement (the "Guarantee") between the Guarantor and The Bank of New York, as
trustee (including any successor trustee, the "Guarantee Trustee"). The proceeds
of the sale of the Securities and the sale of a total aggregate amount of $[ ]
trust common securities (the "Common Securities") by the Trust are to be
invested in $[ ] [ ]% Junior Subordinated Debentures (the "Junior Subordinated
Debentures") of the Guarantor, to be issued pursuant to the Subordinated Debt
Indenture, dated as of [ ], as amended and supplemented by the [First]
Supplemental Indenture, dated as of [ ] (the "Indenture"), between the Guarantor
and The Bank of New York, as trustee (including any successor trustee, the
"Subordinated Debt Trustee"). The term "Representative" refers to Goldman, Sachs
& Co. acting as sole representative of the Underwriters. All determinations and
actions required or permitted to be made by the Representative on behalf of the
Underwriters (including determinations as to whether or not any closing
condition has been satisfied and whether or not any unsatisfied conditions shall
be waived) shall be made solely by Goldman, Sachs & Co. on behalf of the
Underwriters.
The Trust and the Guarantor acknowledge and agree that Goldman Sachs &
Co. may use the Prospectus (as defined below) in connection with offers and
sales of the Securities as contemplated in the Prospectus under the caption
"Plan of Distribution - Market-Making Resales by Affiliates" ("Secondary Market
Transactions"). The Trust and the Guarantor further acknowledge and agree that
Goldman, Sachs & Co. is under no obligation to effect any Secondary Market
Transactions and, if it does so, it may discontinue effecting such transactions
at any time without providing any notice to the Trust or the Guarantor. The term
"Underwriter", whenever used in this Agreement, shall include Goldman, Sachs &
Co., whether acting in its capacity as an Underwriter or acting in connection
with a Secondary Market Transaction, except as may be specifically provided
otherwise herein.
1. Each of the Guarantor and the Trust, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) Two registration statements on Form S-3 (File Nos.
333-105242 and 333- ) (the "Initial Registration Statements") in
respect of the Securities have been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration
Statements and any post-effective amendments thereto, each in the form
heretofore delivered or to be delivered to the Representative, and
excluding exhibits to the Initial Registration Statements, but
including all documents incorporated by reference in the prospectus
contained in the latest Initial Registration Statement, to the
Representative for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became or will
become effective upon filing, no other document with respect to the
Initial Registration Statements or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission (other than prospectuses 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 Representative); and no stop order
suspending the effectiveness of any Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statements or filed
with the Commission pursuant to Rule 424(a) under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statements, any post-effective amendments thereto
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the latest Initial Registration Statement at
the time such part of the latest Initial Registration Statement became
effective but excluding all Forms T-1, each as amended at the time such
part of the Initial Registration Statements became effective or such
part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities
(which, pursuant to Rule 429 under the Act, is contained in the second
Initial Registration Statement (File No. 333- )) 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"; 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; and any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as
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the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statements shall be deemed to
refer to and include any annual report of the Guarantor filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the latest of the Initial Registration Statements that is
incorporated by reference in the Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed 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 did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, 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
Guarantor by an Underwriter through Goldman, Sachs & Co. expressly for
use therein;
(c) 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, in the light of the circumstances under which they
were made, 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, in the light of the circumstances under
which they were made, 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 Guarantor by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus 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, as applicable, 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 Guarantor by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(e) (i) Neither the Guarantor nor any of its subsidiaries that
are listed in the Guarantor's latest annual report on Form 10-K
pursuant to the requirements of Form 10-K and
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Item 601(b)(21) of the Commission's Regulation S-K (the "Significant
Subsidiaries") has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material 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, otherwise than as set forth or contemplated in the
Prospectus; and (ii) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the capital stock or long-term
debt of the Guarantor or any of its Significant Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Guarantor and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(f) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(g) The Trust has been duly created and is validly existing as a
statutory trust in good standing under the Delaware Statutory Trust Act
with the power and authority to own its properties and conduct its
business as described in the Prospectus, and the Trust has conducted no
business to date other than as contemplated by this Agreement; the
Trust is not a party to or bound by any agreement or instrument other
than this Agreement, the Amended and Restated Trust Agreement (the
"Trust Agreement"), among the Guarantor, the trustees named therein
(including any successor trustees, the "Trustees") and the holders of
the Securities issued thereunder, and the agreements and instruments
contemplated by the Trust Agreement; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in
the Prospectus; the Trust is not classified as an association taxable
as a corporation for United States federal income tax purposes; and the
Trust is not a party to or subject to any action, suit or proceeding of
any nature;
(h) The Guarantor has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Guarantor have been duly and validly authorized and issued and are
fully paid and non-assessable;
(i) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Trust entitled to the benefits
provided by the Guarantor Agreements (as defined in Section 2(k)
below); the Indenture and the Guarantee have been duly authorized and
duly qualified under the Trust Indenture Act and, when executed and
delivered by the Guarantor and, in the case of the Indenture, by the
Subordinated Debt Trustee, and in the case of the Guarantee, by the
Guarantee Trustee, will constitute valid and legally binding
instruments, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles;
(j) The Common Securities have been duly and validly authorized
by the Trust and, upon delivery by the Trust to the Guarantor against
payment therefor as described in the Prospectus, will be duly and
validly issued undivided beneficial interests in the assets of the
Trust and will conform to the description thereof contained in the
Prospectus; and at the Time of Delivery, all of the issued and
outstanding Common Securities of the Trust will be directly
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owned by the Guarantor free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(k) The Guarantee, the Junior Subordinated Debentures, the Trust
Agreement, the Indenture and the Agreement as to Expenses and
Liabilities between the Guarantor and the Trust (the "Expense
Agreement") (the Guarantee, the Junior Subordinated Debentures, the
Trust Agreement, the Indenture and the Expense Agreement being
collectively referred to as the "Guarantor Agreements"), when validly
executed and delivered by the Guarantor and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of the Trust
Agreement, by the Trustees and, in the case of the Indenture, by the
Subordinated Debt Trustee, will constitute valid and legally binding
obligations of the Guarantor, enforceable in accordance with their
terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Guarantor Agreements will conform to the
descriptions thereof in the Prospectus;
(l) The issue and sale of the Securities and the compliance by
the Guarantor and the Trust with all of the provisions of the
Securities, the Guarantor Agreements, and this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Guarantor is a party or by which the Guarantor
is bound or to which any of the property or assets of the Guarantor is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Guarantor or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Guarantor or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities by
the Trust or the consummation by the Guarantor and the Trust of the
transactions contemplated by this Agreement or the Guarantor
Agreements, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and 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 purchase and distribution of the Securities
by the Underwriters;
(m) Neither the Guarantor nor any of its Significant
Subsidiaries is in violation of its organizational documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound;
(n) The statements set forth in the Prospectus under the caption
"Description of Capital Securities and Related Instruments", insofar as
they purport to constitute a summary of the terms of the Securities,
under the caption "United States Taxation -- Taxation of Capital
Securities", and under the caption "Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(o) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Guarantor or any
of its subsidiaries is a party or of which any property of the
Guarantor or any of its subsidiaries is the subject which, if
determined adversely to the Guarantor or any of its subsidiaries, would
individually or in the aggregate
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have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of
the Guarantor and its subsidiaries; and, to the best of the Guarantor's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(p) The Trust is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act"); and
(q) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Guarantor and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at a
purchase price of [ ]% of the liquidation amount thereof, the number of
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by the Representative of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Trust, shall be delivered by or on behalf of the Trust to Goldman,
Sachs & Co., for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Trust to Goldman, Sachs
& Co. at least forty-eight hours in advance. The Trust will cause the
certificates representing the Securities to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004 (the "Designated Office"). The Securities to be purchased by each
Underwriter hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on behalf of the
Trust with The Depository Trust Company ("DTC") or its designated custodian. The
Trust will deliver the Securities to Goldman, Sachs & Co., for the account of
each Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Trust to Goldman, Sachs & Co. at least forty-eight
hours in advance, by causing DTC to credit the Securities to the account of
Goldman, Sachs & Co. at DTC. The Trust will cause the certificates representing
the Securities to be made available to Goldman, Sachs & Co. for checking at
least twenty-four hours prior to the Time of Delivery (as defined below) at the
office of DTC or its designated custodian (the "Designated Office"). The time
and date of such delivery and payment shall be 9:30 a.m., New York City time, on
......................, 20.. or such other time and date as Goldman, Sachs & Co.,
the Guarantor and the Trust may agree upon in writing. Such time and date are
herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004 (the
"Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at ......... p.m., New York City time, on the New York
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Business Day next preceding the Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section
4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York City are
generally authorized or obligated by law or executive order to close.
5. Each of the Guarantor and the Trust, jointly and severally, agrees
with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representative
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the Time of Delivery which shall be disapproved by the Representative promptly
after reasonable notice thereof; to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representative with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Guarantor
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities (including, in the case of Goldman, Sachs & Co., in any Secondary
Market Transactions during the Secondary Transactions Period as defined in
Section 5A hereof); to advise the Representative, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, 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
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as the Representative may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities (including, in the case of Goldman,
Sachs & Co., in any Secondary Market Transactions during the Secondary
Transactions Period), provided that in connection therewith neither the Trust
nor the Guarantor shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as the Representative may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Securities (including, in the case of Goldman, Sachs &
Co., in any Secondary Market Transactions during the Secondary Transactions
Period), and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
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of a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be 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 the Representative and upon the
Representative's request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
written and electronic copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Securities at any time nine months or more after the time of
issue of the Prospectus, upon the Representative's request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as the Representative may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act; provided,
however, that the Guarantor and the Trust may elect, upon notice to Goldman,
Sachs & Co., not to comply with this paragraph (c) with respect to any Secondary
Market Transaction, but only for a period or periods that the Guarantor
reasonably determines are necessary in order to avoid premature disclosure of
material, non-public information, unless, notwithstanding such election, such
disclosure would otherwise be required under this Agreement; and provided,
further, that no such period or periods described in the preceding proviso shall
exceed 90 days in the aggregate during any period of 12 consecutive calendar
months. Upon receipt of any such notice, Goldman, Sachs & Co. shall cease using
the Prospectus or any amendment or supplement thereto in connection with
Secondary Market Transactions until it receives notice from the Guarantor that
it may resume using such document (or such document as it may be amended or
supplemented);
(d) To make generally available to its securityholders 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 Guarantor 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 Guarantor, Rule
158 under the Act);
(e) To issue the Guarantee and the Junior Subordinated Debentures
concurrently with the issue and sale of the Securities as contemplated herein;
(f) During the period beginning from the date hereof and continuing to
and including the later of the Time of Delivery and such earlier time as the
Representative may notify the Guarantor, not to offer, sell, contract to sell,
pledge, grant any option to purchase, make any short sale or otherwise dispose
of, except as provided hereunder any securities of the Guarantor that are
substantially similar to the Securities, without the prior written consent of
Goldman, Sachs & Co.;
(g) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds"; and
(h) If the Guarantor and the Trust elect to rely upon Rule 462(b), to
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and the Guarantor shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
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5A. Each of the Guarantor and the Trust, jointly and severally, agrees
with Goldman, Sachs & Co.:
(a) To make no amendment or supplement to the Registration
Statement or the Prospectus during the Secondary Transactions Period
which shall be disapproved by Goldman, Sachs & Co. promptly after
reasonable notice thereof. The "Secondary Transactions Period" means
the period beginning on the date of this Agreement and continuing for
as long as may be required under applicable law, in the reasonable
judgment of Goldman, Sachs & Co. after consultation with the Guarantor,
in order to offer and sell any Securities in Secondary Market
Transactions as contemplated by the Prospectus;
(b) During the Secondary Transactions Period, to furnish to
Goldman, Sachs & Co. copies of all reports or other communications
(financial or other) furnished to stockholders generally, and to
deliver to Goldman, Sachs & Co. (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which the
Securities or any class of securities of the Guarantor is listed; and
(ii) such additional information concerning the business and financial
condition of the Guarantor as Goldman, Sachs & Co. may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Guarantor and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission); and
(c) Each time the Registration Statement or the Prospectus shall
be amended or supplemented during the Secondary Transactions Period, to
furnish or cause to be furnished to Goldman, Sachs & Co., upon its
request, written opinions of counsel for the Guarantor, a letter from
the independent accountants who have certified the financial statements
included in the Registration Statement as then amended and certificates
of officers of the Guarantor, in each case in form and substance
reasonably satisfactory to Goldman, Sachs & Co.
Notwithstanding the foregoing provisions, the Guarantor and the Trust
may elect, upon notice to Goldman, Sachs & Co., not to comply with this Section
5A with respect to any Secondary Market Transaction, but only for a period or
periods that the Guarantor reasonably determines are necessary in order to avoid
premature disclosure of material, non-public information, unless,
notwithstanding such election, such disclosure would otherwise be required under
this Agreement; and provided, further, that no such period or periods described
in the preceding proviso shall exceed 90 days in the aggregate during any period
of 12 consecutive calendar months. Upon receipt of any such notice, Goldman,
Sachs & Co. shall cease using the Prospectus or any amendment or supplement
thereto in connection with Secondary Market Transactions until it receives
notice from the Guarantor that it may resume using such document (or such
document as it may be amended or supplemented).
6. Each of the Guarantor and the Trust, jointly and severally,
covenants and agrees with the several Underwriters that the Guarantor and the
Trust will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Guarantor's and the Trust'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 and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Guarantor Agreements, the
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; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws
9
as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Memoranda; (iv) any fees
charged by securities rating services for rating the Securities; (v) any filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities (other than,
in the case of Goldman, Sachs & Co., in any Secondary Market Transactions); (vi)
the cost of preparing the Securities; (vii) the fees and expenses of the
Trustees, the Subordinated Deb Trustee and the Guarantee Trustee and any of
their agents and the fees and disbursements of their counsel in connection with
the Guarantor Agreements and the Securities; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Guarantor and the Trust herein are, at and as of the
Time of Delivery, true and correct, the condition that the Guarantor and the
Trust shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Guarantor and the Trust have elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representative's reasonable satisfaction;
(b) Sullivan & Cromwell LLP shall have furnished to the Representative
such written opinion, dated the Time of Delivery, in form and substance
satisfactory to the Representative, to the effect set forth in Annex II hereto;
(c) A General Counsel or Associate General Counsel for the Guarantor
shall have furnished to the Representative his or her written opinion, in form
and substance satisfactory to the Representative, to the effect set forth in
Annex III hereto;
(d) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at the Time of Delivery, PricewaterhouseCoopers
LLP shall have furnished to the Representative a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to the
Representative, to the effect set forth in Annex I hereto (the executed copy of
the letter delivered prior to the execution of this Agreement is attached as
Annex I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration Statement and
as of each Time of Delivery is attached as Annex I(b) hereto);
(e) (i) Neither the Guarantor nor any of its Significant Subsidiaries
shall have sustained since the date of the latest audited financial statements
included or incorporated by reference in the
10
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, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Guarantor or any of its
Significant Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Guarantor and its
Significant Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of Goldman, Sachs & Co. so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(f) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Guarantor'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
Guarantor'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 Guarantor's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in the judgment
of Goldman, Sachs & Co. makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus;
(h) The Guarantor and the Trust shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(i) Richards, Layton & Finger, P.A., special Delaware Counsel for the
Guarantor and the Trust, shall have furnished to the Representative their
written opinion, dated the Time of Delivery, in form and substance satisfactory
to the Representative, to the effect set forth in Annex IV hereto;
(j) Sullivan & Cromwell LLP, special tax counsel for the Guarantor,
shall have furnished to the Representative their written opinion, dated the Time
of Delivery, in form and substance satisfactory to the Representative, to the
effect that such firm confirms its opinion set forth in the Prospectus under the
caption "United States Taxation"; and
(k) The Guarantor shall have furnished or caused to be furnished to the
Representative at the Time of Delivery certificates of officers of the Guarantor
satisfactory to the Representative as to the accuracy of the representations and
warranties of the Guarantor herein at and as of such Time of Delivery, as to the
performance by the Guarantor of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as the Representative
may reasonably request.
11
8. (a) Each of the Guarantor and the Trust, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Guarantor nor the Trust shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Guarantor by any Underwriter through
Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Guarantor and
the Trust against any losses, claims, damages or liabilities to which the
Guarantor or the Trust may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Guarantor or the Trust by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Guarantor and the Trust for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect
12
the settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Guarantor and the Trust on the one hand and
the Underwriters on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Guarantor and the Trust on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Guarantor and the Trust on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Guarantor and the Trust
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Guarantor or the Trust on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Guarantor, the
Trust and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Guarantor and the Trust under this Section 8
shall be in addition to any liability which the Guarantor and the Trust may
otherwise have and shall extend, upon the same
13
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 8 shall
be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Guarantor or the Trust and to each person, if any, who controls
the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, the Representative may
in its discretion arrange for the Representative or another party or other
parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representative does
not arrange for the purchase of such Securities, then the Guarantor and the
Trust shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representative to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, the Representative notifies the Guarantor and the Trust that
the Representative has so arranged for the purchase of such Securities, or the
Guarantor or the Trust notifies the Representative that it has so arranged for
the purchase of such Securities, the Representative or the Guarantor or the
Trust shall have the right to postpone the Time of Delivery for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Guarantor and the Trust agree to file
promptly any amendments to the Registration Statement or the Prospectus which in
the Representative's opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representative,
the Guarantor and the Trust as provided in subsection (a) above, the aggregate
number of such Securities which remains unpurchased does not exceed one-eleventh
of the aggregate number of all the Securities, then the Guarantor and the Trust
shall have the right to require each non-defaulting Underwriter to purchase the
number of Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities which such Underwriter agreed to
purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representative,
the Guarantor and the Trust as provided in subsection (a) above, the aggregate
number of Securities which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Securities, as referred to in subsection (b) above,
or if the Guarantor and the Trust shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Guarantor or the Trust, except for the expenses to be borne by
the Guarantor, the Trust and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
14
10. The respective indemnities, agreements, representations, warranties
and other statements of the Guarantor and the Trust and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Guarantor and the Trust, or any officer or director or
controlling person of the Guarantor or the Trust, and shall survive delivery of
and payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Trust and the Guarantor in subsection (a) of Section 8 hereof,
the representations and warranties in subsections (b), (c) and (d) of Section 1
hereof and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Guarantor or the Trust pursuant to Section 7 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Guarantor and the Trust of expenses incurred or paid in the successful
defense of any action, suit or proceeding) arising under the Act, shall not
extend to the extent of any interest therein of a controlling person or partner
of an Underwriter who is a director or officer of the Guarantor who signed the
Registration Statement or controlling person of the Guarantor or the Trust when
the Registration Statement has become effective, except in each case to the
extent that an interest of such character shall have been determined by a court
of appropriate jurisdiction as not against public policy as expressed in the
Act. Unless in the opinion of counsel for the Guarantor and the Trust the matter
has been settled by controlling precedent, the Guarantor and the Trust will, if
a claim for such indemnification is asserted, submit to a court of appropriate
jurisdiction the question of whether such interest is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Guarantor nor the Trust shall then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Securities are not delivered by or on behalf of the Trust as
provided herein, the Guarantor and the Trust will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Securities, but the Guarantor and the Trust shall then be under
no further liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representative shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Representative at 85 Broad Street, New York, New
York 10004, Attention: Registration Department; and if to the Guarantor or the
Trust shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Guarantor or the Trust set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Guarantor and the Trust by the Representative
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Guarantor, the Trust and, to the extent
provided in Sections 8 and 10 hereof, the
15
officers and directors of the Guarantor and the Trust and each person who
controls the Guarantor, the Trust or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Guarantor and the Trust are authorized, subject to applicable
law, to disclose any and all aspects of this potential transaction that are
necessary to support any U.S. federal income tax benefits expected to be claimed
with respect to such transaction, and all materials of any kind (including tax
opinions and other tax analyses) related to those benefits, without the
Underwriters imposing any limitation of any kind.
16
If the foregoing is in accordance with the Representative's
understanding, please sign and return to us four counterparts hereof, and upon
the acceptance hereof by the Representative, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters, the Guarantor and the Trust. It is
understood that the Representative's acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Guarantor and the Trust for examination upon request, but without warranty on
the Representative's part as to the authority of the signers thereof.
Very truly yours,
Goldman Sachs Capital
By: ----------------------------
Name:
Title:
The Goldman Sachs Group, Inc.
By: ----------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: ------------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
17
SCHEDULE I
NUMBER OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
Goldman, Sachs & Co................................
[NAMES OF OTHER UNDERWRITERS]......................
-----------
Total............................
===========
18
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial
information) examined by them and included or incorporated by reference
in the Registration Statement or the Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the
Guarantor for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
representative of the Underwriters (the "Representative");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statement of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Guarantor's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representative; and on the basis of specified
procedures including inquiries of officials of the Guarantor who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in the related in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Guarantor for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Guarantor's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with
the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Guarantor and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Guarantor's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Guarantor's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Guarantor's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case
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which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the
Guarantor and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or
other items specified by the Representative, or any increases
in any items specified by the Representative, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representative, or any increases in any items specified by the
Representative, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representative, except
in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representative which are derived from the general
accounting records of the Guarantor and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference) or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representative or in documents incorporated by
reference in the Prospectus specified by the Representative, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Guarantor and its subsidiaries and
have found them to be in agreement.
3