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EXHIBIT 1.1
DISTRIBUTION AGREEMENT
SUMMIT PROPERTIES PARTNERSHIP, L.P.
$250,000,000
MEDIUM-TERM NOTES
Due 9 months or more from Date of Issue
Distribution Agreement
April 20, 2000
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
First Union Securities, Inc.
301 S. College Street, 10th Floor
One First Union Center
Charlotte, North Carolina 28288
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center - North Tower
New York, New York 10281
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Ladies and Gentlemen:
Summit Properties Partnership, L.P., a Delaware limited
partnership (the "Partnership"), confirms its agreement with each of you with
respect to the issue and sale from time to time by the Partnership of its
Medium-Term Notes due 9 months or more from date of issue (the "Securities") in
an aggregate initial offering price of up to $250,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies), as such
amount shall be reduced by the aggregate initial offering price of any other
debt securities issued by the Partnership, whether within or without the United
States ("Other Securities") pursuant to the registration statement referred to
below, and agrees with each of you (individually an "Agent",
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and collectively, the "Agents", which term shall include any additional agents
appointed pursuant to Section 13 hereof) as set forth in this Agreement. The
Securities will be issued under an indenture dated as of August 7, 1997, as
supplemented by Supplemental Indenture No. 4 dated April 20, 2000 (together, the
"Indenture") between the Partnership and First Union National Bank, as Trustee
(the "Trustee"). The Securities shall have the maturities, interest rates,
redemption provisions, if any, and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Partnership in accordance with the Indenture.
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions stated herein and to the
reservation by the Partnership of the right to sell Securities directly to
investors (other than broker-dealers) on its own behalf, the Partnership hereby
(i) appoints the Agents as the exclusive agents of the Partnership for the
purpose of soliciting and receiving offers to purchase Securities from the
Partnership by others pursuant to Section 2(a) hereof and (ii) agrees that,
except as otherwise contemplated herein, whenever it determines to sell
Securities directly to any Agent as principal, it will enter into a separate
agreement (each such agreement a "Terms Agreement"), substantially in the form
of Exhibit A hereto, relating to such sale in accordance with Section 2(b)
hereof.
The Partnership and Summit Properties Inc., a Maryland
corporation and the sole general partner and the principal limited partner of
the Partnership (the "Company"), have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (No. 333-83781), relating to, among other things, certain
debt securities (the "Shelf Securities") to be issued from time to time by the
Partnership. The Partnership and the Company also have filed with, or propose to
file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement describing certain terms of the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Partnership and the Company
have filed an abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration
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Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein. For purposes of this Agreement, each of the
Partnership, Summit Management Company, a Maryland corporation (the "Management
Company"), Summit Apartment Builders, Inc., a Florida corporation (the "Building
Company"), and any other subsidiaries (within the meaning of Regulation S-X
under the Securities Act) of the Company is deemed a "Subsidiary" of the
Company.
1. Representations. The Partnership and the Company each
jointly and severally represents and warrants to, and agrees with, each Agent as
of the Commencement Date (as hereinafter defined), as of each date on which the
Company accepts an offer to purchase Securities (including any purchase by an
Agent as principal pursuant to a Terms Agreement or otherwise), as of each date
the Partnership issues and sells Securities and as of each date the Registration
Statement or the Prospectus is amended or supplemented, as follows (it being
understood that such representations and warranties shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Partnership and/or the Company, threatened by the Commission, and
the Registration Statement and Prospectus (as amended or supplemented,
if applicable) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act"), and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment or supplement thereto and as of the date of
the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Agent
furnished to the Partnership and/or the Company in writing by such
Agent expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, 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
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statements therein, in 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 Securities Act or the
Exchange Act, as applicable, 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 light of
the circumstances under which they were made, not misleading;
(c) the accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants as required by the Securities Act, and there have been no
disagreements with any accountants or "reportable events" (as defined
in Item 304 of Regulation S-K promulgated by the Commission) required
to be disclosed in the Prospectus or elsewhere pursuant to such Item
304;
(d) the historical financial statements of the Company and the
Partnership included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated Subsidiaries taken as a whole as of
the dates indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied
(except, in the case of interim financial results, for the notes
thereto and ordinary year-end adjustments) on a consistent basis and
comply with the applicable accounting requirements of the Securities
Act (including, without limitation, Rule 3-14 and Rule 3-15 of
Regulation S-X promulgated by the Commission), and all adjustments
necessary for a fair presentation of the results for such periods have
been made; the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information required to be stated therein; and the selected
financial data (both historical and, if any, pro forma) included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the related financial statements
presented therein;
(e) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not occurred any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs, business prospects or
operations of the Company and its Subsidiaries taken as a whole from
that set forth in the Prospectus;
(f) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (1) neither
the Company nor its Subsidiaries have incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) except pursuant
to one or more Common Stock Repurchase Programs approved by the Board
of Directors of the Company, neither the Company nor its Subsidiaries
have purchased any of the
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Company's outstanding Common Stock, $.01 par value (the "Common
Stock"), nor declared, paid or otherwise made any dividend or
distribution of any kind on the Company's Common Stock other than
ordinary and customary dividends; and (3) there has not been any
material change in the capital, Common Stock, short-term debt or
long-term debt of either the Company or its Subsidiaries, except in
each case as described in or contemplated by the Prospectus;
(g) the Partnership has been duly formed and is validly
existing as a partnership in good standing under the laws of the State
of Delaware, has the partnership power and authority to own its
property and any property proposed to be acquired by it and referred to
in the Prospectus, and conduct its business as described in the
Prospectus and is duly qualified to transact such business, and is in
good standing under the laws of each other jurisdiction in which the
conduct of its business or its ownership, management or leasing of
property requires such qualification except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole, each of which jurisdiction is listed on Schedule I attached
hereto;
(h) the Agreement of Limited Partnership of the Partnership
(the "Agreement of Limited Partnership") has been duly and validly
authorized, executed and delivered by the Company, including in its
capacity as sole general partner of the Partnership, and is a valid and
binding agreement of the Company, including the Company in its capacity
as sole general partner of the Partnership, enforceable against the
Company in accordance with its terms except as limited by (a) the
effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
rights or remedies of creditors or (b) the effect of general principles
of equity, whether enforcement is considered in a proceeding in equity
or at law and the discretion of the court before which proceeding
therefore may be brought;
(i) each of the Company, the Management Company and the
Building Company has been duly incorporated and is validly existing as
a corporation under the laws of its jurisdiction of incorporation, with
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, and is duly qualified to
transact such business and is in good standing under the laws of each
jurisdiction in which the conduct of its business or its ownership,
management or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its Subsidiaries taken as a whole, each of which jurisdiction is listed
on Schedule I attached hereto; and, except as otherwise stated in the
Prospectus, all of the issued and outstanding capital stock or other
ownership interests in the Management Company and the Building Company
have been validly issued and, in the case of the Management Company,
are owned by the Partnership and by William F. Paulsen and, in the case
of the Building Company, by the Management Company, in each case, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security interests granted in
respect of indebtedness of the Company or any of its subsidiaries and
described in the Prospectus;
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(j) except as disclosed in the Registration Statement, the
Company has no material subsidiaries;
(k) each of the partnership and joint venture agreements to
which the Company and any of its Subsidiaries is a party, and which
relates to real property, has been duly authorized, executed and
delivered on the part of the Company and any of such Subsidiaries by
any of them that is a party thereto and constitutes the valid agreement
thereof, enforceable in accordance with its terms, except as limited by
(a) the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors or (b) the effect of general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; and the execution, delivery and
performance of any of such agreements by the Company and any of its
Subsidiaries, as applicable, did not, at the time of execution and
delivery, and does not constitute a breach of, or default under, the
charter, by-laws, agreement of limited partnership (or other
organizational documents) of such party of any material contract, lease
or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court decree;
(l) the authorized capital stock conforms, as to legal
matters, to the description thereof contained in the Prospectus;
(m) the Securities have been duly authorized, and, when
issued, authenticated and delivered pursuant to this Agreement and the
Indenture, will have been duly and validly executed, authenticated,
issued and delivered and will constitute valid and binding obligations
of the Partnership entitled to the benefits provided by the Indenture
and enforceable against the Partnership in accordance with their terms
except that the enforceability thereof may be limited by or subject to
(a) bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter existing which affect
the rights and remedies of creditors generally and (b) equitable
principles of general applicability; the Indenture has been duly
authorized and qualified under the Trust Indenture Act and, when
Supplemental Indenture No. 4 is executed and delivered by the
Partnership and the Trustee, the Indenture will constitute a valid and
binding obligation of the Partnership, enforceable against the
Partnership in accordance with its terms except that the enforceability
thereof may be limited by or subject to (a) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar laws now
or hereafter existing which affect the rights and remedies of creditors
generally and (b) equitable principles of general applicability, and
the Securities and the Indenture conform to the descriptions thereof in
the Prospectus;
(n) neither the Company nor any of its Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, the Articles of Incorporation or
by-laws of the Company or the Agreement of Limited Partnership of the
Partnership or any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for
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violations and defaults which individually or in the aggregate would
not have a material adverse effect on the condition, financial or
otherwise, or earnings, business affairs or business prospects of the
Company and its Subsidiaries taken as a whole; the issue and sale of
the Securities and the performance by the Partnership of all its
obligations under the Securities and the Indenture and the performance
by each of the Partnership and the Company of all their respective
obligations under this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach 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 Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, except for such
conflicts, breaches or defaults which individually or in the aggregate
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its Subsidiaries taken as a whole; nor will any such
action result in any violation of the provisions of the Articles of
Incorporation or the by-laws of the Company or the Agreement of Limited
Partnership of the Partnership or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
license, 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 Partnership or the consummation of the transactions
contemplated by the Indenture by the Partnership or this Agreement by
the Partnership and the Company, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications (i)
as have been obtained under the Securities Act or the Trust Indenture
Act, (ii) as may be required under state securities or Blue Sky Laws in
connection with the offer and sale of the Securities or (iii) the
failure of which to obtain would not individually or in the aggregate
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its Subsidiaries taken as a whole;
(o) with respect to all tax periods since the Company's first
taxable year ended December 31, 1994, the Company has met the
requirements for qualification as a real estate investment trust
("REIT") under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such
requirements;
(p) none of the Partnership, the Company, the Management
Company or the Building Company is and, after giving effect to the
offering and sale of the Securities, will be an "investment company" or
an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(q) there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
Subsidiary of the Company is a party or to which any of their
properties or the Communities (as that term
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is defined in the Prospectus) is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required and all such contracts
required to be filed as exhibits to the Registration Statement are set
forth in Schedule II attached hereto;
(r) the Company and its Subsidiaries own or possess any
trademarks, service marks, trade names or copyrights (collectively, the
"Intellectual Property") required in order to conduct their respective
businesses as described in the Prospectus, other than those which the
failure to possess or own would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its Subsidiaries taken
as a whole;
(s) the Company and each Subsidiary has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its Subsidiaries taken as a whole;
and none of the Company or any Subsidiary has received any notice of
any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Prospectus and except, in
each case, where such revocation or modification would not, singly or
in the aggregate, have a material adverse effect on the Company and its
Subsidiaries taken as a whole; and the Company and each Subsidiary are
in compliance with all laws, rules and regulations relating to the
conduct of their respective businesses as conducted as of the date
hereof, except where noncompliance with such laws, rules or regulations
would not, singly or in the aggregate, have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(t) the Company has full right, power and authority to enter
into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company;
(u) the Partnership has full right, power and authority to
enter into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Partnership;
(v) (i) the Company and its Subsidiaries have good and
marketable title in fee simple to all of the Communities described in
the Prospectus as owned by them in fee simple, free and clear of all
liens, in each case, except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and by its Subsidiaries; (ii) the construction,
management and operation of the buildings, fixtures and other
improvements comprising the Communities as currently
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conducted or existing are not in violation of any applicable building
code, zoning ordinance or other law or regulation except where such
violation of any applicable building code, zoning ordinance or other
law or regulation would not, singly or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries taken as a
whole, (iii) neither the Company, the Partnership nor the Management
Company has received notice of any proposed material special assessment
or any proposed material change in any property tax, zoning or land use
laws or availability of water for irrigation affecting all or any
portion of the Communities; (iv) neither the Company nor the
Partnership is aware of any material delay with respect to the
construction of Communities referred to in the Prospectus as under
construction, or any material increase in the estimated cost of such
construction, or any other matter materially detrimental to the
construction, or any factor which may, through passage of time or
otherwise, give rise to such delay, cost increase or detriment; (v)
there do not exist any material violations of any declaration of
covenants, conditions and restriction (the "CC&R's") with respect to
any of the Communities, nor to the Company's knowledge is there any
existing state of facts or circumstances or condition or event which
could, with the giving of notice or passage of time, or both,
constitute such a violation; and (vi) the improvements comprising any
portion of the Communities (the "Improvements") are free of any and all
material physical, mechanical, structural, design and construction
defects and the mechanical, electrical and utility systems servicing
the Improvements (including, without limitation, all water, electric,
sewer, plumbing, heating, ventilation, gas and air conditioning) are in
good condition and proper working order and are free of material
defects;
(w) immediately after any sale of Securities by the
Partnership hereunder, the aggregate amount of Securities which have
been issued and sold by the Partnership hereunder and of any securities
of the Partnership (other than the Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed
the amount of securities registered under the Registration Statement;
(x) no relationship, direct or indirect, exists between or
among the Company or any of its Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its Subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and
the Prospectus which is not so described;
(y) the Company and its Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and, except as
disclosed in the Registration Statement and the Prospectus, there is no
tax deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company or any Subsidiary;
(z) there are no existing or, to the best knowledge of the
Partnership and/or the Company, threatened labor disputes with the
employees of the Company or any of its
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Subsidiaries which are likely to have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(aa) the Company and each Subsidiary (i) is in compliance with
any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) has received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) is in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(ab) there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) that would, singly or in the aggregate,
have a material adverse effect on the Company and its Subsidiaries
taken as a whole;
(ac) 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 Partnership, the Company or any of its affiliates for employees
or former employees of the Partnership, the Company and its affiliates
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 Code. 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. 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, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions;
(ad) the assets of the Partnership do not constitute "plan
assets" under ERISA;
(ae) the Company and its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as are customary in the businesses in which they
are engaged; neither the Company nor any Subsidiary has been refused
any insurance coverage sought or applied for, and neither the Company
nor any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that
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would not materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the Company and
its Subsidiaries taken as a whole, except as described in or
contemplated by the Prospectus;
(af) the mortgages and deeds of trust encumbering the
Communities are not cross-defaulted or cross-collateralized with any
other property not owned directly or indirectly by the Company or its
Subsidiaries; and
(ag) any certificate signed by any officer of the Company in
such capacity or as general partner of the Partnership and delivered to
you or to counsel for the Agent in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company
or the Partnership, as the case may be, to the Agent participating in
such offering as to the matters covered thereby on the date of such
certificate.
2. Solicitations as Agent; Purchases as Principal. (a)
Solicitations as Agent. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each
of the Agents hereby severally and not jointly agrees, as agent of the
Partnership, to use its reasonable efforts to solicit offers to purchase the
Securities from the Partnership upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. So long as this
Agreement shall remain in effect with respect to any Agent, the Partnership
shall not, without the consent of such Agent, solicit or accept offers to
purchase, or sell, Securities or any other debt securities with a maturity at
the time of original issuance of 9 months to 30 years except pursuant to this
Agreement and any Terms Agreement, or except pursuant to a private placement not
constituting a public offering under the Securities Act or except in connection
with a firm commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous offering of medium-term debt securities.
However, the Partnership reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own behalf to investors (other
than broker-dealers).
The Partnership reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Securities. Upon receipt of
at least one business day's prior notice from the Partnership or the Company,
each Agent will suspend solicitation of offers to purchase Securities from the
Partnership until such time as the Partnership or the Company has advised such
Agent or Agents that such solicitation may be resumed. During the period of time
that such solicitation is suspended, the Partnership and the Company shall not
be required to deliver any opinions, letters or certificates in accordance with
Sections 4(i), 4(j) and 4(k) hereof, provided that if the Registration Statement
or Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered for
the Securities or for a change that the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase Securities until the
Partnership and/or the Company has delivered such opinions, letters and
certificates as such Agent may reasonably request.
The Partnership agrees to pay each Agent, as consideration for
the sale of each Security pursuant to this Agreement resulting from a
solicitation made or an offer to purchase
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received by such Agent, a commission in the form of a discount from the purchase
price of such Security in an amount equal to the following applicable percentage
of the principal amount of such Security sold:
Commission
(percentage of aggregate
principal amount
Range of Maturities of Securities sold)
------------------- ------------------------
From 9 months to less than 1 year............................. .125%
From 1 year to less than 18 months............................ .150%
From 18 months to less than 2 years........................... .200%
From 2 years to less than 3 years............................. .250%
From 3 years to less than 4 years............................. .350%
From 4 years to less than 5 years............................. .450%
From 5 years to less than 6 years............................. .500%
From 6 years to less than 7 years............................. .550%
From 7 years to less than 10 years............................ .600%
From 10 years to less than 15 years........................... .625%
From 15 years to less than 20 years........................... .700%
20 years to 30 years ......................................... .750%
Commissions with respect to Securities with stated maturities
of over 30 years will be negotiated at the time of sale.
The Agents are authorized to solicit offers to purchase
Securities which will be issued in denominations of $1,000 (or, in the case of
Securities not denominated in U.S. dollars, the equivalent thereof in the
applicable foreign currency or composite currency, rounded down to the nearest
1,000 units of such foreign currency or composite currency) or any amount in
excess thereof which is an integral multiple of $1,000 (or, in the case of
Securities not denominated in U.S. dollars, 1,000 units of such foreign currency
or composite currency). Each Agent shall communicate to the Partnership, orally
or in writing, each offer to purchase Securities received by such Agent as agent
that in its judgment should be considered by the Partnership. The Partnership
shall have the sole right to accept offers to purchase the Securities and may
reject any such offer in whole or in part and any such rejection shall not be
deemed a breach of its agreements herein contained. Each Agent shall have the
right, in its sole discretion, to reject any offer to purchase Securities, as a
whole or in part, that it considers to be unacceptable and any such rejection
shall not be deemed a breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Securities sold by an Agent as
agent and the payment therefor are set forth in the Administrative Procedures
(as hereinafter defined).
(b) Purchase as Principal. Each sale of Securities to any
Agent as principal shall be made in accordance with the terms of this Agreement
and (unless such Agent shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities to, and the purchase thereof by, such
Agent. A Terms Agreement will be substantially in the form of Exhibit A hereto
but may take the form of an exchange of any standard form of written
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telecommunication between an Agent and the Partnership and may also specify
certain provisions relating to the reoffering of such Securities by such Agent.
The commitment of any Agent to purchase securities as principal, whether
pursuant to any Terms Agreement or otherwise, shall be deemed to have been made
on the basis of the representations and warranties of the Partnership and the
Company herein contained and shall be subject to the terms and conditions herein
and in the applicable Terms Agreement set forth. Each agreement by an Agent to
purchase Securities as principal (pursuant to a Terms Agreement or otherwise)
shall specify the principal amount of Securities to be purchased by such Agent
pursuant thereto, the price to be paid to the Partnership for such Securities,
the maturity date of such Securities, the interest rate or interest rate basis,
if any, applicable to such Securities, any other terms of such Securities, the
time and date and place of delivery of and payment for such Securities (the time
and date of any and each such delivery and payment, the "Time of Delivery"), any
provisions relating to rights of, and default by, underwriters acting together
with such Agent in the reoffering of Securities, and shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Securities purchased by an Agent as principal and the payment therefore shall be
as set forth in the Administrative Procedures.
(c) Obligations Several. The Partnership acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as to
the manner in which it solicits purchasers for the Securities and as to the
identity thereof.
(d) Administrative Procedures. The Agents and the Partnership
agree to perform their respective duties and obligations specifically provided
to be performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Partnership and the Agents.
(e) Other Securities. The Partnership agrees to notify each
Agent of sales by the Partnership of Other Securities.
3. Commencement Date. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as defined below) shall
be delivered to the Agents at the offices of Brown & Wood LLP, New York, New
York, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement among the Agents,
the Partnership and the Company but in no event shall be later than the day
prior to the date on which solicitation of offers to purchase Securities is
commenced or the first date on which the Partnership accepts an offer by any
Agent to purchase Securities as principal (such time and date being referred to
herein as the "Commencement Date").
4. Covenants of the Partnership and the Company. Each of the
Partnership and the Company covenants and agrees with each Agent as follows:
(a)(i) to make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering of the
Securities pursuant to this Agreement or
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any Terms Agreement which shall be disapproved by any Agent after reasonable
opportunity to comment thereon, provided, however that the foregoing shall not
apply to any of the Partnership's or the Company's periodic filings with the
Commission described in subsection (iii) below, copies of which filings the
Partnership or the Company will cause to be delivered to the Agents promptly
after their transmission to the Commission for filing; (ii) subject to the
foregoing clause (i), promptly to cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act and to prepare, with respect to any Securities to be
sold through or to such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Securities in a form previously approved by such Agent and
to file such Pricing Supplement in accordance with Rule 424(b) under the
Securities Act; and (iii) promptly to file all reports and any definitive proxy
or information statements required to be filed by the Partnership or the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities. The Partnership will
promptly advise each Agent (i) of the filing of any amendment or supplement to
the Basic Prospectus or any amendment to the Registration Statement and of the
effectiveness of any such amendment to the Registration Statement, (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use of any
prospectus relating to the Securities or the initiation or threatening of any
proceeding for that purpose, or of any request by the Commission for any
amendment or supplement of the Registration Statement or Prospectus or for
additional information; and (iii) of the receipt by the Partnership or the
Company of any notification with respect to any suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose. Each of the Partnership
and the Company agrees to use its best efforts to prevent the issuance of any
such stop order or of any such order preventing or suspending the use of any
such prospectus or of any notification suspending any such qualification and, if
issued, to use promptly its best efforts to obtain withdrawal thereof as soon as
possible. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase Securities
so long as it is not reasonably satisfied with such document;
(b) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the distribution of the Securities;
provided that neither the Partnership nor the Company shall be required to file
a general consent to service of process in any jurisdiction;
(c) to furnish each Agent and counsel to the Agents, at the
expense of the Partnership, a signed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case including exhibits
and documents incorporated by reference therein and, during the period mentioned
in paragraph (d) below, to furnish each Agent as many copies of the Prospectus
(including all amendments and supplements thereto) and documents incorporated by
reference therein as such Agent may reasonably request;
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(d) if at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event shall
occur as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances when such Prospectus is delivered to a purchaser, not
misleading, or, if in the opinion of the Agents or the Partnership, it is
necessary at any time to amend or supplement the Prospectus to comply with law,
to immediately notify the Agents by telephone (with confirmation in writing) and
request each Agent (i) in its capacity as agent of the Partnership, to suspend
solicitation of offers to purchase Securities from the Partnership (and, if so
notified, such Agent shall cease such solicitations and cease using the
Prospectus as soon as practicable, but in any event not later than one business
day later); and (ii) to cease sales of any Securities such Agent may then own as
principal. If the Partnership shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, it
shall so advise each Agent promptly by telephone (with confirmation in writing)
and, at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or the
Prospectus, as then amended or supplemented, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request. If
such amendment or supplement and the documents, opinions, letters and
certificates furnished to the Agents pursuant to Sections 4(e), 4(i), 4(j) and
4(k) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to the Agents, then upon the filing
with the Commission of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration Statement, the Agents will
resume the solicitation of offers to purchase Securities hereunder.
Notwithstanding any other provision of this Section 4(d), if during such period
an Agent continues to own Securities purchased from the Partnership by such
Agent as principal or in the event such Agent, in the opinion of its counsel, is
otherwise required to deliver a prospectus in respect of a transaction in the
Securities, if any event described in this Section 4(d) occurs the Partnership
will, at its own expense, promptly prepare and file with the Commission an
amendment or supplement, satisfactory in all respects to such Agent, that will
correct such statement or omission or effect such compliance, will supply such
amended or supplemented Prospectus to such Agent in such quantities as such
Agent may reasonably request and shall furnish to such Agent pursuant to Section
4(e), 4(i), 4(j) and 4(k) such documents, certificates, opinions and letters as
it may request in connection with the preparation and filing of such amendment
or supplement;
(e) to furnish to the Agents during the term of this Agreement
such relevant documents and certificates of officers of the Partnership and the
Company relating to the business, operations and affairs of the Partnership and
the Company, the Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Securities, this Agreement, the
Administrative Procedures, any applicable Terms Agreement and the performance by
each of the Partnership and the Company of its obligations hereunder or
thereunder as the Agents may from time to time reasonably request and shall
notify the Agents promptly in writing of any downgrading, or on its receipt of
any notice of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate maintaining or an improvement in the
rating accorded any securities of, or guaranteed by, the Partnership by any
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"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(f) to make generally available to its security holders and to
the Agents as soon as practicable earnings statements which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering periods of at least twelve months beginning in
each case with the first fiscal quarter of the Partnership and the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement with respect to each sale of Securities;
(g) with respect to each Security, for a period of three years
following the issuance of such Security, to furnish to such Agents copies of all
reports or other communications (financial or other) furnished to holders of
Securities and copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange;
(h) that, from the date of any applicable Terms Agreement with
an Agent or other agreement by an Agent to purchase Securities as principal and
continuing to and including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of any debt
securities of or guaranteed by the Partnership and/or the Company which are
substantially similar to the Securities, without the prior written consent of
such Agent;
(i) that each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities or
for a change which the Agents deem to be immaterial) and each time the
Partnership sells Securities to such Agent as principal pursuant to a Terms
Agreement or other agreement and such Terms Agreement or other agreement
specifies the delivery of an opinion under this Section 4(i) as a condition to
the purchase of Securities pursuant to such Terms Agreement or other agreement,
the Partnership shall furnish or cause to be furnished forthwith to such Agent
the written opinions of Goodwin, Procter & Hoar LLP and of Kennedy, Covington,
Lobdell & Hickman, L.L.P., or other counsel for the Partnership and the Company
satisfactory to such Agent, dated the date of such amendment or supplement, or
the related Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the opinion referred to in
Sections 6(b) and 6(c), respectively, hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
date of each such opinion, or, in lieu of such opinion, counsel last furnishing
such an opinion, may each furnish to the Agents a letter to the effect that such
Agent may rely on the opinion of such counsel which was last furnished to such
Agent to the same extent as though it were dated the date of such letter (except
that the statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to date of
delivery of such letter);
(j) that each time the Registration Statement or the
Prospectus shall be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Partnership sells
Securities to such Agent as principal pursuant to a Terms Agreement or other
agreement and such Terms Agreement or other agreement specifies the delivery of
a letter under this Section 4(j) as a condition to the purchase of Securities
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pursuant to such Terms Agreement or other agreement, the Partnership shall cause
the independent certified public accountants who have certified the financial
statements of the Partnership and the Company and its Subsidiaries included or
incorporated by reference in the Registration Statement forthwith to furnish
such Agent a letter, dated the date of such amendment or supplement or the
related Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 6(d) hereof but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter with such
changes as may be necessary to reflect such amended or supplemented financial
information included or incorporated by reference in the Registration Statement
or the Prospectus as amended or supplemented, provided, however, that, with
respect to any financial information or other matter, such letter may reconfirm
as true and correct at such date, as though made at and as of such date, rather
than repeat statements with respect to such financial information or other
matters made in the letter referred to in Section 6(d) hereof which was last
furnished to such Agent;
(k) that each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities or
for a change which the Agents deem to be immaterial), and each time the
Partnership sells Securities to such Agent as principal and the applicable Terms
Agreement or other agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement or other agreement, the Partnership shall furnish or cause to be
furnished forthwith to such Agent a certificate signed by an executive officer
of the Company, in its capacity as general partner of the Partnership, dated the
date of such amendment or supplement or the related Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of the same
tenor as the certificates referred to in Section 6(e) but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
date of delivery of such certificate or to the effect that the statements
contained in the certificate referred to in Section 6(e) hereof which was last
furnished to such Agent are true and correct at such date as though made at and
as of such date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to such
date).
5. Costs and Expenses. Each of the Partnership and the Company
covenants and agrees with each Agent that the Partnership and/or the Company
will, whether or not any sale of Securities is consummated, pay all costs and
expenses incident to the performance of its obligations hereunder and under any
applicable Terms Agreement, including without limiting the generality of the
foregoing, all costs and expenses: (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any expenses
of the Trustee, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification
and determination of eligibility for investment of the Securities under the laws
of such jurisdictions as the Agents (or in connection with any Terms Agreement,
the applicable Agent) may designate (including reasonable fees of counsel for
the Agents (or such Agent) and their reasonable disbursements), (iv) in
connection with the listing of the Securities on any stock
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exchange, (v) related to any filing with National Association of Securities
Dealers, Inc. (the "NASD"), (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Indenture,
any Blue Sky Memoranda and any Legal Investment Survey and the furnishing to the
Agents and dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided, (vii) payable to rating
agencies in connection with the rating of the Securities, (viii) the fees and
disbursements of counsel for the Agents incurred in connection with the offering
and sale of the Securities, including any opinions to be rendered by such
counsel hereunder and (ix) any advertising and reasonable out-of-pocket expenses
incurred by the Agents in connection with the offering and sale of the
Securities.
6. Conditions. The obligation of any Agent, as agent of the
Partnership, at any time ("Solicitation Time") to solicit offers to purchase the
Securities, the obligation of any Agent to purchase Securities as principal
pursuant to, any Terms Agreement or otherwise, and the obligation of any other
purchaser to purchase Securities shall in each case be subject (1) to the
condition that all representations and warranties of the Partnership and the
Company herein and all statements of officers of the Partnership and the Company
made in any certificate furnished pursuant to the provisions hereof are true and
correct (i) in the case of an Agent's obligation to solicit offers to purchase
Securities, at and as of such Solicitation Time and (ii) in the case of any
Agent's or any other purchaser's obligation to purchase Securities, at and as of
the time the Partnership accepts the offer to purchase such Securities and, as
the case may be, at and as of the related Time of Delivery or time of purchase;
(2) to the condition that at or prior to such Solicitation Time, time of
acceptance, Time of Delivery or time of purchase, as the case may be, each of
the Partnership and the Company shall have complied with all its agreements and
all conditions on its part to be performed or satisfied hereunder, and (3) to
the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery
or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement) with
respect to such Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period prescribed for such filing
by the rules and regulations under the Securities Act; no stop
order suspending the effectiveness of the Registration
Statement shall be in effect 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
reasonable satisfaction of such Agent;
(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of (A) downgrading, (B)
any intended or potential downgrading or (C) any review or
possible change that does not indicate maintaining or an
improvement in the rating accorded any securities of or
guaranteed by the Partnership by any "nationally recognized
statistical
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rating organization", as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities
Act;
(iii) there shall not have been since the respective
dates as to which information is given in the Prospectus, any
material change in the capital stock or long-term debt of the
Company or any of its Subsidiaries or any material adverse
change or any development involving a material adverse change,
in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries,
taken as a whole, the effect of which in the judgment of the
applicable Agent makes it impracticable or inadvisable to
proceed with the solicitation by such Agent of offers to
purchase Securities from the Partnership or the purchase by
such Agent of Securities from the Partnership as principal, as
the case may be, on the terms and in the manner contemplated
in the Prospectus, as so amended or supplemented; and neither
the Company nor any of its 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
(iv) (A) trading generally shall not have been
suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock
Exchange or NASDAQ, (B) trading of any securities of or
guaranteed by the Partnership or the Company shall not have
been suspended on any exchange or in any over-the-counter
market, (C) a general moratorium on commercial banking
activities in New York shall not have been declared by either
Federal or New York State authorities, or (D) there shall not
have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in
the judgment of such Agent or Agents of such other purchaser,
is material and adverse and which in the judgment of such
Agent or Agents or of such other purchaser makes it
impracticable to proceed with the solicitation by such Agent
of offers to purchase Securities from the Partnership or the
purchase by such Agent of Securities from the Partnership as
principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented at
the Solicitation Time or at the time such offer to purchase
was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Goodwin, Procter &
Hoar LLP, counsel for the Company and the Subsidiaries, shall have
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furnished to the relevant Agent or Agents their written opinion, dated
the Commencement Date or Time of Delivery, as the case may be, in form
and substance satisfactory to such Agent or Agents, to the effect that:
(i) the Partnership has been duly formed and is
validly existing as a limited partnership in good standing
under the laws of the State of Delaware, has the partnership
power and authority to own its property and any property
proposed to be acquired by it and referred to in the
Prospectus and is duly qualified to transact such business and
is in good standing in each jurisdiction listed on Schedule I
attached hereto;
(ii) each of the Company, the Management Company and
the Building Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to
transact such business and is in good standing in each
jurisdiction listed on Schedule I attached hereto;
(iii) based solely on such counsel's review of the
Agreement of Limited Partnership and a report of a reputable
commercial search firm of the Uniform Commercial Code records
of the financing statements on file in the office of the
Secretary of State of the State of North Carolina, being the
state in which the Company's chief executive office is located
and in the office of the Mecklenburg County Recorder, the
county in which such office is located, the interests in the
Partnership owned by the Company are validly issued and owned,
directly or indirectly, by the Company, free and clear of any
perfected security interest, or to such counsel's knowledge,
any other mortgage, pledge, lien, encumbrance, claim or
security interest of any kind;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) this Agreement has been duly authorized, executed
and delivered by the Partnership;
(vi) the issuance of the Securities has been duly
authorized by the Partnership and, when duly executed by the
Partnership and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by any purchaser
of Securities sold through an Agent as agent or any Agent as
principal pursuant to and in accordance with the terms of this
Agreement and applicable resolutions of the Pricing Committee
appointed by the Board of Directors of the Company, will
constitute valid and binding obligations of the Partnership
entitled to the benefits provided by the Indenture and the
Securities will be enforceable against the Partnership in
accordance with their terms, except that the enforceability
thereof may
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be limited by or subject to (a) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and
remedies of creditors generally and (b) equitable principles
of general applicability. The Indenture conforms in all
material respects to all statements and descriptions related
thereto in the Prospectus;
(vii) the Indenture has been duly authorized,
executed and delivered by the Partnership and constitutes a
valid and binding instrument of the Partnership enforceable in
accordance with its terms, except that the enforceability
thereof may be limited by or subject to (a) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium
or other similar laws now or hereafter existing which affect
the rights and remedies of creditors generally and (b)
equitable principles of general applicability; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(viii) the execution and delivery of the Indenture by
the Partnership and this Agreement by each of the Company and
the Partnership, and the performance by the Partnership of its
obligations under the Indenture and by each of the Company and
the Partnership of its obligations under this Agreement, will
not (a) contravene (i) any provision of Applicable Laws, as
hereinafter defined, or, to the knowledge of the attorneys
listed on Schedule III which are all of the attorneys at
Goodwin, Procter & Hoar LLP who are currently working on
matters for the Company or any of its Subsidiaries, without
independent investigation, any provision of any order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, its Subsidiaries or any of
their respective properties except for such contraventions
which individually or in the aggregate would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries taken as a whole
(a "Material Adverse Effect") or (ii) the Articles of
Incorporation or by-laws of the Company or the Agreement of
Limited Partnership of the Partnership or, (b) (i) conflict
with or result in a breach of any of the terms or provisions
of, or constitute a default under, any agreement or other
instrument identified on Schedule II attached hereto except
for such conflicts, breaches or defaults which individually or
in the aggregate would not have a Material Adverse Effect;
provided that such counsel need not opine as to whether the
execution and delivery of the Indenture by the Partnership and
this Agreement by each of the Company and the Partnership, and
the performance by the Partnership of its obligations under
the Indenture and by each of the Company and the Partnership
of its obligations under this Agreement will constitute a
violation of or a default under any covenant, restriction or
provision with respect to financial ratios or tests or any
aspect of the financial ratios or tests or any aspect of the
financial condition or results of operations of the Company or
the
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Partnership, or (ii) contravene, violate or conflict with, any
judgment, order or decree, known to such counsel, of any
Governmental Authority or, to the knowledge of the attorneys
listed on Schedule III which are all of the attorneys at
Goodwin, Procter & Hoar LLP who are currently working on
matters for the Company or any of its Subsidiaries, without
independent investigation, any judgment, order or decree of
any governmental body, agency or court having jurisdiction
over the Company or any Subsidiary except for such
contraventions, violations or conflicts which individually or
in the aggregate would not have a Material Adverse Effect; and
no consent, approval, authorization or order of, or
qualification or registration with, any Governmental Authority
or, to the knowledge of the attorneys listed on Schedule III
which are all of the attorneys at Goodwin, Procter & Hoar LLP
who are currently working on matters for the Company or any of
its Subsidiaries, without independent investigation, any court
or governmental body or agency except such consents,
approvals, authorizations or orders of, or qualifications or
registrations the failure of which to obtain would not
individually or in the aggregate have a Material Adverse
Effect, is required for the issue and sale of the Securities
or the performance by each of the Company and the Partnership
of its obligations under this Agreement or by the Partnership
of its obligations under the Indenture, except, in each case,
such as have been obtained under the Securities Act and the
Trust Indenture Act and as may be required by the securities
or Blue Sky laws of the various states or the By-laws or
Corporate Financing Rule of the NASD in connection with the
offer and sale of the Securities;
(a) "Governmental Approval" means any consent,
approval, order or decree, license, authorization or
validation of, or filing with, any Governmental Authority
pursuant to Applicable Laws, (b) "Governmental Authority"
shall mean any United States or Commonwealth of Massachusetts
court or legislative, judicial, administrative or regulatory
body or agency and (c) "Applicable Laws" means the Maryland
General Corporation Law and those laws, statutes, rules and
regulations of the United States of America and the
Commonwealth of Massachusetts that, in such counsel's
experience, are normally applicable to transactions of the
type contemplated by this Agreement; provided, that such
counsel need express no opinion as to (x) the "blue sky" or
state securities or real estate syndication laws of any
jurisdiction or (y) municipal laws or the laws of any agencies
within any state.
(ix) each document incorporated by reference in the
Registration Statement and the Prospectus as amended or
supplemented (other than the financial statements and related
schedules therein and other financial and statistical data
included or incorporated therein, as to which such counsel
need express no opinion) complied as to form when filed with
the Commission in all material respects with the Exchange Act,
and the rules
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and regulations of the Commission thereunder, and the
Registration Statement and the Prospectus and any amendments
and supplements thereto (except for the financial statements
and related schedules therein and other financial and
statistical data included or incorporated therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act;
(x) the Registration Statement has been declared
effective under the Securities Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); and to such counsel's knowledge based
solely on a telephone conversation with the staff of the
Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities
Act and no proceedings therefor have been initiated or
threatened by the Commission;
(xi) none of the Company, the Partnership, the
Management Company, or the Building Company is an "investment
company" as such term is defined in the Investment Company Act
of 1940, as amended;
(xii) based, in part, on representations from the
Company relating to its asset composition, source of income,
shareholder diversification, distributions, record keeping and
other requirements and assumptions relating to the Company's
continued compliance with such representations, for its
taxable years ended December 31, 1994 through December 31,
1999, the Company has been organized in conformity with the
requirements for qualification as a "real estate investment
trust" under the Code and its method of operation has enabled
it to and will enable it to continue to meet the requirements
for qualification and taxation as a real estate investment
trust under the Code;
(xiii) the statements set forth in the Prospectus
under the captions "Federal Income Tax Considerations and
Consequences of Your Investment" and "United States Federal
Income Tax Considerations" insofar as such statements
constitute summaries of the legal matters referred to therein,
are accurate in all material respects; and
(xiv) the statements set forth in the Prospectus
under the captions "Description of Debt Securities",
"Description of Common Stock", "Description of Preferred
Stock", "Limits on Ownership of Capital Stock", "Shareholder
Rights Plan", and "Important Provisions of Maryland Law" in
each case insofar as such statements constitute summaries of
the legal matters or documents referred to therein, fairly
present the information called for with respect to such legal
matters and documents and fairly summarize the matters
referred to therein.
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Such counsel shall also include a statement in such
opinion to the following effect: we have participated in
conferences with officers and other representatives of the
Company and the Partnership, counsel for the Company and the
Partnership, representatives of the independent accountants of
the Company and the Partnership and you at which the contents
of the Registration Statement and related matters were
discussed and on the basis of the foregoing:
(i) No facts have come to such counsel's
attention which cause it to believe that the
Registration Statement (excluding the financial
statements and schedules and other financial and
statistical data included or incorporated therein, as
to which such counsel need express no belief), at the
time it became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; and
(ii) No facts have come to such counsel's
attention which cause it to believe that the
Prospectus (excluding the financial statements and
schedules and other financial and statistical data
included or incorporated therein, as to which such
counsel need express no belief), as of its date and
the date of delivery of such opinion, contained an
untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) On the Commencement Date, and in the case of a purchase of
Securities by the Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Kennedy Covington
Lobdell & Hickman, special counsel for the Company and the
Subsidiaries, shall have furnished to the relevant Agent or Agents
their written opinion, dated the Commencement Date or Time of Delivery,
as the case may be, in form and substance satisfactory to such Agent or
Agents, to the effect that:
(i) the Partnership is duly qualified to transact
such business and is in good standing in each jurisdiction
listed on Schedule I attached hereto and, to the knowledge of
the attorneys listed on Schedule IV which are all of the
attorneys at Kennedy Covington Lobdell & Hickman who are
currently working on matters for the Company or its
Subsidiaries, without independent investigation, is duly
qualified to transact such business and is in good standing
under the laws of each other jurisdiction in which the conduct
of its business or its ownership, management or leasing of
property requires such qualification except to the extent that
the failure to be so qualified or be in good standing in each
such jurisdiction would not have a material adverse effect on
the Company and its Subsidiaries taken as a whole;
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(ii) each of the Company, the Management Company and
the Building Company is duly qualified to transact such
business and is in good standing in each jurisdiction listed
on Schedule I attached hereto and, to the knowledge of the
attorneys listed on Schedule IV which are all of the attorneys
at Kennedy Covington Lobdell & Hickman who are currently
working on matters for the Company or its Subsidiaries,
without independent investigation, is duly qualified to
transact such business and is in good standing under the laws
of each other jurisdiction in which the conduct of its
business or its ownership, management or leasing of property
requires such qualification except to the extent that the
failure to be so qualified or be in good standing in each such
jurisdiction would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(iii) the execution and delivery of the Indenture by
the Partnership and this Agreement by each of the Company and
the Partnership, and the performance by the Partnership of its
obligations under the Indenture and by each of the Company and
the Partnership of its obligations under this Agreement, will
not (a) contravene (i) any provision of Applicable Law or, to
the knowledge of the attorneys listed on Schedule IV which are
all of the attorneys at Kennedy Covington Lobdell & Hickman
who are currently working on matters for the Company or its
Subsidiaries, without independent investigation, any provision
of applicable law or statute or any order, rule or regulation
of any court or governmental agency, body or court having
jurisdiction over the Company, its Subsidiaries or any of
their respective properties, except for such contraventions of
any such provision of applicable law or statute or any such
order, rule or regulation of any court or governmental agency,
body or court having jurisdiction over the Company, its
Subsidiaries or any of their respective properties which
individually or in the aggregate would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect") or (ii) the Articles of Incorporation or
by-laws of the Company or the Agreement of Limited Partnership
of the Partnership or, (b) to such counsel's knowledge after
due inquiry, (i) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
agreement or other instrument identified on Schedule II
attached hereto or, to the knowledge of the attorneys listed
on Schedule IV which are all of the attorneys at Kennedy
Covington Lobdell & Hickman who are currently working on
matters for the Company or its Subsidiaries, without
independent investigation, any agreement or other instrument
to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound or to
which any of the property or assets of the Company or any of
its Subsidiaries is subject except for such conflicts,
breaches or defaults with respect to any such unscheduled
agreements or instruments which individually or in the
aggregate would not have a Material Adverse Effect; provided
that such counsel need not opine as to whether the execution
and delivery of the Indenture by the Partnership and this
Agreement by each of the Company and the Partnership, and the
performance by the Partnership of its obligations under the
Indenture and by each of the Company
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26
and the Partnership of its obligations under this Agreement
will constitute a violation of or a default under any
covenant, restriction or provision with respect to financial
ratios or tests or any aspect of the financial ratios or tests
or any aspect of the financial condition or results of
operations of the Company or the Partnership, or (ii)
contravene, violate or conflict with, any judgment, order or
decree, known to such counsel, of any Governmental Authority
or, to the knowledge of the attorneys listed on Schedule IV
which are all of the attorneys at Kennedy Covington Lobdell &
Hickman who are currently working on matters for the Company
or its Subsidiaries, without independent investigation, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary
except for such contraventions, violations or conflicts with
any such judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
Subsidiary which individually or in the aggregate would not
have a Material Adverse Effect;
(a) "Governmental Approval" means any consent,
approval, order or decree, license, authorization or
validation of, or filing with, any Governmental Authority
pursuant to Applicable Laws, (b) "Governmental Authority"
shall mean any United States or State of North Carolina court
or legislative, judicial, administrative or regulatory body or
agency and (c) "Applicable Laws" means the Maryland General
Corporation Law and those laws, statutes, rules and
regulations of the United States of America and the State of
North Carolina that, in such counsel's experience, are
normally applicable to transactions of the type contemplated
by this Agreement; provided, that such counsel need express no
opinion as to (x) the "blue sky" or state securities or real
estate syndication laws of any jurisdiction or (y) municipal
laws or the laws of any agencies within any state.
(iv) To their knowledge after due inquiry, there are
no legal or governmental proceedings pending or threatened to
which the Company or any Subsidiary or any affiliate of the
Company is a party or to which any of their properties or the
Communities is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement that are not described or filed as
required;
(v) The Company and each Subsidiary has all necessary
consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts
and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that
the failure to obtain or file would not have a Material
Adverse Effect; and neither the Company nor any such
Subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any Governmental
Approval
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or, to the knowledge of the attorneys listed on Schedule IV
which are all of the attorneys at Kennedy Covington Lobdell &
Hickman who are currently working on matters for the Company
or its Subsidiaries, without independent investigation, any
such license, permit, certificate, consent, order, approval or
other authorization except for such revocations or
modifications of any such licenses, permits, certificates,
consents, orders, approvals or other authorizations which
individually or in the aggregate would not have a Material
Adverse Effect, in each case, except as described in the
Registration Statement and the Prospectus and the date of
delivery of such opinion; and each of the Company or its
Subsidiaries is in compliance with all Applicable Laws and, to
the knowledge of the attorneys listed on Schedule IV which are
all of the attorneys at Kennedy Covington Lobdell & Hickman
who are currently working on matters for the Company or its
Subsidiaries, without independent investigation, all laws and
regulations except to the extent that failure to so comply
with all such laws and regulations would not have a Material
Adverse Effect, in each case, relating to the conduct of its
business as conducted as of the date of the Prospectus and the
date of delivery of such opinion; and
(vi) The Company and each Subsidiary (1) is in
compliance with any and all applicable federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("Environmental Laws"), (2) has received all permits, licenses
or other approvals required of them under applicable
Environmental Laws to conduct their businesses and (3) is in
compliance with all terms and conditions of any such permit,
license or approval, except where such non-compliance with
Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals
are otherwise disclosed in the Prospectus or would not, singly
or in the aggregate, have a Material Adverse Effect.
Such counsel shall also include a statement in such opinion to
the following effect: we have reviewed the Registration Statement and the
Prospectus and participated in conferences with officers and other
representatives of the Company and the Partnership and counsel for the Company
and the Partnership at which the contents of the Registration Statement and
related matters were discussed and on the basis of the foregoing:
(i) No facts have come to such counsel's attention
which cause it to believe that the Registration Statement
(excluding the financial statements and schedules and other
financial and statistical data included or incorporated
therein, as to which such counsel need express no belief), at
the time it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and
(ii) No facts have come to such counsel's attention
which cause it to believe that the Prospectus (excluding the
financial statements and schedules and other financial and
statistical data included or incorporated therein, as to which
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such counsel need express no belief), as of its date and the
date of delivery of such opinion contained an untrue statement
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinions, such counsel may (A) as to matters
involving the application of laws other than the laws of the United States and
the State of Maryland to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to the Agents' counsel) of other counsel
reasonably acceptable to the Agents' counsel, familiar with the applicable laws;
and (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Partnership and the Company and
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Partnership and the Company. The opinion of such counsel for the Partnership and
the Company shall state that the opinion of any such other counsel upon which
they relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Agents and they are justified in relying thereon. With respect to
the matters to be covered in the last paragraphs of subparagraph (b) and
subparagraph (c) above counsel may state that their opinion and belief is based
upon their participation in the preparation of the Registration Statement and
the Prospectus and any amendment or supplement thereto but is without
independent check or verification except as specified.
(d) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Brown & Wood LLP,
counsel to the Agents, shall have furnished to the relevant Agent or
Agents such opinion or opinions, dated the Commencement Date or Time of
Delivery, as the case may be, with respect to the validity of the
Indenture, the Securities, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as such Agent or
Agents may reasonably request, and in each case such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(e) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the independent
certified public accountants who have certified the financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, as then amended or supplemented, shall have
furnished to the relevant Agent or Agents a letter, dated the
Commencement Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent or Agents, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented.
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(f) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent or
Agents shall have received a certificate or certificates signed by an
executive officer of each of the Partnership and the Company, dated the
Commencement Date or Time of Delivery, as the case may be, to the
effect set forth in Section 6(a)(i) and (ii) above and to the further
effect that (1) the representations and warranties of the Partnership
and the Company contained herein are true and correct on and as of the
Commencement Date or Time of Delivery, as the case may be, as if made
on and as of such date, (2) each of the Partnership and the Company has
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder or under the applicable Terms
Agreement or other agreement at or prior to the Commencement Date or
Time of Delivery, as the case may be, and (3) there has not been any
change in the capital stock or long-term debt of the Partnership and/or
the Company or any of its Subsidiaries or any material adverse change,
or any development involving a material adverse change, in or affecting
the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the
Partnership and/or the Company and its Subsidiaries taken as a whole
from that set forth in or contemplated by the Registration Statement or
the Prospectus.
(g) On the Commencement Date and at each Time of Delivery,
each of the Partnership and the Company shall have furnished to the
relevant Agent or Agents such further certificates, information and
documents as such Agent or Agents may reasonably request.
7. Indemnification and Contribution. (a) The Partnership and
the Company, jointly and severally, agree to indemnify and hold harmless each
Agent and each person, if any, who controls such Agent, each affiliate of any
Agent which assists such Agent in the distribution of the Securities within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Partnership and the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Agent furnished
to the Partnership and/or the Company in writing by such Agent expressly for use
therein; provided, however, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Agent (or to the
benefit of the person controlling such Agent) from whom the person asserting any
such losses, claims, damages or liabilities purchased securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Partnership and the Company shall have furnished any
amendments or
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supplements thereto) and, if required by law, a copy of the Prospectus (as
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such securities to such person.
(b) Each Agent agrees to indemnify and hold harmless the
Partnership, the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Partnership and/or the Company within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Partnership and the
Company to each Agent, but only with reference to information relating to such
Agent furnished to the Partnership or the Company in writing by such Agent
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Agents, each
affiliate of any Agent which assists such Agent in the distribution of the
Securities and such control persons of the Agents shall be designated in writing
by J.P. Morgan Securities Inc. or, if J.P. Morgan Securities Inc. is not an
Indemnified Party, by the Agents that are Indemnified Parties and any such
separate firm for the Partnership or the Company, its directors, its officers
who sign the Registration Statement and such control persons of the Partnership
or the Company or authorized representatives shall be designated in writing by
the Partnership or the Company. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
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proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. However, if it is ultimately determined that an Indemnified Person
was not entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for all amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or
(b) of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Partnership and the Company on the one hand and each
Agent on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Partnership and the
Company on the one hand and each Agent on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Partnership and the Company on the one hand
and each Agent on the other in connection with the offering of such Securities
shall be deemed to be in the same respective proportion as the net proceeds from
the offering of such Securities (before deducting expenses) received by the
Partnership and the Company and the total discounts and commissions received by
each Agent in respect thereof bear to the aggregate offering price of such
Securities. The relative fault of the Partnership and the Company on the one
hand and of each Agent on the other 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 Partnership or the Company or by such Agent and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Partnership, the Company and each Agent agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to above in this Section 7
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Agent be required to
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contribute any amount in excess of the amount by which the total price at which
the Securities that were sold by or through such Agent exceeds the amount of any
damages that such Agent 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligation of each Agent to
contribute pursuant to this subsection (d) is several (in the proportion that
the principal amount of the Securities the sale of which by or through such
Agent gave rise to such losses, claims, damages or liabilities bears to the
aggregate principal amount of the Securities the sale of which by or through any
Agent gave rise to such losses, claims, damages or liabilities) and is not
joint.
(e) The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above at law or in
equity.
8. Termination. (a) This Agreement may be terminated at any
time (i) by the Partnership and/or the Company with respect to any or all of the
Agents or (ii) by any Agent with respect to itself only, in each case upon the
giving of written notice of such termination to each other party hereto. Any
Terms Agreement shall be subject to termination immediately upon the failure of
any condition in the absolute discretion of the Agent or Agents that are parties
thereto on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
an Agent to purchase Securities as principal (whether pursuant to a Terms
Agreement or otherwise) and the termination of such an agreement shall not
require termination of this Agreement. In the event this Agreement is terminated
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such termination has not occurred,
(y) this Agreement shall remain in full force and effect with respect to the
rights and obligations of any party which have previously accrued or which
relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such termination and (z) in any event,
the provisions of the third and fourth paragraphs of Section 2(a), and Sections
2(c), 4(f), 4(g), 5, 7, 8, 9, 10, 12 and 15 shall survive; provided that if at
the time of termination an offer to purchase Securities has been accepted by the
Company but the time of delivery to the purchaser or its agent of such
Securities has not yet occurred, the provisions of Sections 2(b), 2(d), 4(a)
through 4(e), 4(h) through 4(k) and 6 shall also survive. If any Terms Agreement
is terminated, the provisions of Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g)
through 4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall have been incorporated by
reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be
terminated by an Agent or Agents because of any failure or refusal on the part
of the Partnership and/or the Company to comply with the terms or to fulfill any
of the conditions of this Agreement or any Terms Agreement or if for any reason
the Partnership and/or the Company shall be unable to perform its obligations
under this Agreement or any Terms Agreement or any condition of any Agent's
obligations cannot be fulfilled, the Partnership and the Company agree to
reimburse each Agent or such Agents as have so terminated this Agreement with
respect to themselves for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Agent or Agents in
connection with this Agreement or the offering of Securities.
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9. Position of the Agents. Each Agent, in soliciting offers to
purchase Securities from the Partnership and in performing the other obligations
of such Agent hereunder (other than in respect of any purchase by such Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Partnership and not as principal and does not assume any
obligation towards or relationship of agency or trust with any purchaser of
Securities. Each Agent will make reasonable efforts to assist the Partnership
and the Company in obtaining performance by each purchaser whose offer to
purchase Securities from the Partnership was solicited by such Agent and has
been accepted by the Partnership, but such Agent shall not have any liability to
the Partnership or the Company in the event such purchase is not consummated for
any reason. If the Partnership shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Partnership shall (i)
hold the relevant Agent harmless against any loss, claim, damage or liability
arising from or as a result of such default by the Partnership and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations and warranties of the
Partnership, the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Securities
as principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any Agent or any controlling person of any Agent, or the Partnership, the
Company, or any officer or director or any controlling person of the Partnership
or the Company, and shall survive each delivery of and payment for any of the
Securities.
11. Notices. Except as otherwise specifically provided herein
or in the Administrative Procedures, all statements, requests, notices and
advices hereunder shall be in writing and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents will be sent, in the case of J.P. Morgan,
to 60 Wall Street, New York, New York 10260 (Fax: (212) 648-5151) Attention:
Transaction Execution Group, in the case of First Union Securities, Inc., to 301
South College Street, Charlotte, North Carolina 28288 (Fax: (704) 383-9165)
Attention: Debt Syndicate Group, in the case of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, to World Financial Center, North Tower, New York, New York
10281 (Fax: (212) 449-2234) Attention MTN Product Management, and in the case of
Morgan Stanley & Co Incorporated, to 1585 Broadway, New York, New York 10036
(Fax: (212) 761-8846) Attention: Manager--Continuously Offered Products, with a
copy to Peter Cooper, Investment Banking Information Center (Fax: (212)
761-0164, and if sent to the Company or the Partnership, to them at 212 South
Tryon Street, Suite 500, Charlotte, North Carolina 28211 (FAX: (704) 333-8340);
Attention: Mr. Michael L. Schwarz, Executive Vice President and Chief Financial
Officer with a copy to Mr. Michael G. Malone, Senior Vice President and General
Counsel.
12. Successors. This Agreement and any Terms Agreement shall
be binding upon, and inure solely to the benefit of, each Agent, the Partnership
and the Company, and their respective successors and the officers, directors and
controlling persons referred to in Section 7 and (to the extent expressly
provided in Section 6) the purchasers of Securities, and no other
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person shall acquire or have any right or obligation under or by virtue of this
Agreement or any Terms Agreement.
13. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by the
Partnership, the Company and each Agent; provided that the Partnership and/or
the Company may from time to time, on 7 days prior written notice to the Agents
but without the consent of any Agent, amend this Agreement to add as a party
hereto one or more additional firms registered under the Exchange Act, whereupon
each such firm shall become an Agent hereunder on the same terms and conditions
as the other Agents that are parties hereto. The Agents shall sign any amendment
or supplement giving effect to the addition of any such firm as an Agent under
this Agreement.
14. Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day" shall
mean any day which is not a Saturday or Sunday or legal holiday or a day on
which banks in New York City are required or authorized by law or executive
order to close.
15. Applicable Law. This Agreement and any Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may
be signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
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If the foregoing is in accordance with your understanding,
please sign and return to us eight counterparts hereof, whereupon this letter
and the acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc., its general partner
By: /s/ Michael L. Schwarz
-------------------------------------------
Name: Michael L. Schwarz
Title: Executive Vice President and
Chief Financial Officer
SUMMIT PROPERTIES INC.
By: /s/ Michael L. Schwarz
-------------------------------------------
Name: Michael L. Schwarz
Title: Executive Vice President and
Chief Financial Officer
Accepted in New York, New York,
as of the date first above written:
J.P. Morgan Securities Inc. Morgan Stanley & Co. Incorporated
By: /s/ Lesley Eydenberg By: /s/ Harold J. Hendershot II
----------------------------------- --------------------------------
Name: Lesley Eydenberg Name: Harold J. Hendershot II
Title: Vice President Title: Vice President
Merrill Lynch & Co. First Union Securities, Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Diane Kenna By: /s/ William W. Ingram
----------------------------------- --------------------------------
Name: Diane Kenna Name: William W. Ingram
Title: Authorized Signatory Title: Managing Director
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Exhibit A
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTES
TERMS AGREEMENT
___________, 20__
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
First Union Securities, Inc.
301 S. College Street, 10th Floor
One First Union Center
Charlotte, North Carolina 28288
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center - North Tower
New York, New York 10281
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention:
Re: Distribution Agreement dated as of April 20, 2000 (the
"Distribution Agreement")
The undersigned agrees to purchase your Medium-Term Notes having the following
terms:
Specified Currency: ______________________________________
Principal Amount: ______________________________________
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Original Issue Date: _________________________________
Settlement Date,
Time and Place: ______________________________________
Maturity Date: _______________________________________
Purchase Price: _____ % of Principal Amount, plus accrued interest, if any,
from Settlement Date
Price to Public: _____ % of Principal Amount, plus accrued interest, if any,
from Settlement Date
Redemption Date (Dates): , commencing
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[For Fixed Rate Notes]
Interest Rate: ________________________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule:
*[(For Floating Rate Notes)
Initial Interest Rate: __________________________
Interest Rate Basis (Commercial Paper, LIBOR,
Treasury, ) :
_______________________________
*See Prospectus Supplement dated __________ for explanation of terms.
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Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): _____________________________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): ______________________________
Interest Payment Period (monthly, quarterly,
semiannually, annually): ______________________________
Spread: ____________________ points (+/-)
Spread Multiplier: _________________________%
Maximum Interest Rate: _____________________%
Minimum Interest Rate: _____________________%
Initial Interest Reset Date: _____________________________
Interest Reset Dates: ____________________________________
Interest Determination Dates: ____________________________
Interest Payment Dates: __________________________________
Calculation Agent:
Other terms of Securities:
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Provisions relating to underwriter default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11, 12
and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by referenced herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purpose of this Agreement.
The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.
J.P. Morgan Securities Inc.
First Union Securities, Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
By: J.P. Morgan Securities Inc.
By: ______________________
(Title)
Accepted:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: _________________________________
(Title)
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Exhibit B
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes, due nine months or more from their date
of issue (the "Notes") are to be offered on a continuing basis by Summit
Properties Partnership L.P. (the "Issuer"). J.P. Morgan Securities Inc., First
Union Securities, Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, as agents (the "Agents"),
have each agreed to use their best efforts to solicit purchases of the Notes.
The Issuer reserves the right to sell Notes directly or indirectly on its own
behalf to investors (other than broker-dealers). The Agents will not be
obligated to, but may from time to time, purchase Notes as principal for their
own account. The Notes are being sold pursuant to a Distribution Agreement dated
April 20, 2000 (the "Agency Agreement"), among the Issuer, Summit Properties
Inc., a Maryland corporation and the sole general partner and the principal
limited partner of the Issuer (the "Company") and the Agents, and will be issued
pursuant to an indenture dated as of August 7, 1997 and all indentures
supplemental thereto, including Supplemental Indenture No. 4 dated as of April
20, 2000 (collectively, the "Indenture"), between the Issuer and First Union
National Bank, as Trustee (the "Trustee). Capitalized terms used herein and not
defined herein shall have the meanings ascribed to such terms in the Agency
Agreement. The Notes have been registered under the Securities Act of 1933, as
amended (the "Act").
Each Note will be represented by either a Global Security (as defined
in the Indenture), such Global Security, for purposes hereof either a global
note (a "Global Note") or a master note (a "Master Note"), registered in the
name of a nominee of The Depository Trust Company, as Depositary ("DTC") (a
"Book-Entry Note"), or a certificate issued in definitive form (a "Certificated
Note"). It is currently contemplated that both Notes that bear interest at a
fixed rate (a "Fixed Rate Note") and Notes that bear interest at a variable rate
(a "Floating Rate Note") and that are denominated and payable in U.S. dollars
may be issued as Book-Entry Notes.
Administrative procedures and specific terms of the offering are
explained below. The Issuer will advise the Agents in writing of those persons
handling administrative responsibilities with whom the Agents are to communicate
regarding offers to purchase Notes and the details of their delivery.
Administrative procedures may be modified from time to time as reflected in the
applicable Pricing Supplement (as defined below) or elsewhere.
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PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
AND GENERALLY APPLICABLE ADMINISTRATIVE PROCEDURES
Issue/
Authentication
Date: Each Note shall be dated as of the date of its
authentication by the Trustee or an agent designated
by the Issuer for such purpose (the "Designated
Agent"). Each Note will also bear an original issue
date (the "Issue Date") which, with respect to any
Note (or portion thereof), shall mean the date of its
original issuance (i.e., the settlement date) and
shall be specified therein. The issue date will
remain the same for all Notes subsequently issued
upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Maturities: Each Note shall mature on a Business Day, selected by
the purchaser and agreed to by the Issuer, which
shall be nine months or more from the date of issue.
Price to Public: Each Note shall be issued at 100% of principal amount
unless otherwise specified in a supplement to the
Prospectus (a "Pricing Supplement").
Denominations: The denominations of the Notes shall be $1,000 and
integral multiples of $1,000 in excess thereof. (Any
Notes denominated other than in U.S. dollars will be
issuable in denominations as set forth in such
Notes.)
Registration: Notes shall be issued only in fully registered form.
Minimum Purchase: The minimum aggregate amount of Notes denominated and
payable in U.S. dollars which may be offered to any
purchaser will be $1,000.
Interest: General. Each Note shall bear interest in accordance
with its terms, as described in the Prospectus
Supplement (as defined in the Agency Agreement), as
supplemented by the applicable Pricing Supplement.
Calculation of
Interest: Interest on Fixed Rate Notes and interest rates on
Floating Rate Notes will be determined as set forth
in the form of Notes. With respect to Floating Rate
Notes, the Calculation Agent shall determine the
interest rate for each Interest Reset Date and
communicate such interest rate to the Issuer, and the
Issuer will promptly notify the Trustee, or the
Designated Agent, and the Paying Agent of each such
determination.
Payments of
Interest and
Principal: All interest payments (excluding interest payments
made at maturity) will be made by check mailed to the
person entitled thereto; provided,
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however, that if a holder of one or more Notes of
like tenor and terms with an aggregate principal
amount equal to or greater than U.S. $10,000,000 (or
the equivalent thereof in foreign currencies or
currency units) shall designate in writing to the
Paying Agent at its corporate trust office in The
City of New York on or prior to the Regular Record
Date relating to the Interest Payment Date an
appropriate account with a bank, the Paying Agent
will, subject to applicable laws and regulations and
until it receives notice to the contrary, make such
payment and all succeeding payments to such person by
wire transfer to the designated account. If a payment
cannot be made by wire transfer because the
information received by the Paying Agent is
incomplete, a notice will be mailed to the holder at
its registered address requesting such information.
Upon presentation of the relevant Note, the Trustee,
or the Designated Agent, (or any duly appointed
Paying Agent) will pay in immediately available funds
the principal amount of such Note at maturity and
accrued interest, if any, due at maturity; provided
that the Note is presented to the Trustee, or the
Designated Agent, (or any such Paying Agent) to make
payments in accordance with its normal procedures.
The Issuer will provide the Trustee, or the
Designated Agent, (and any such Paying Agent) with
funds available for such purpose. Notes presented to
the Trustee, or the Designated Agent, at maturity for
payment will be canceled and destroyed by the
Trustee, or the Designated Agent, and a certificate
of destruction will be delivered to the Issuer. On
the fifth Business Day (as defined below) immediately
preceding each interest payment date, the Trustee, or
the Designated Agent, will furnish to the Issuer a
statement showing the total amount of the interest
payments to be made on such interest payment date.
The Trustee, or the Designated Agent, will provide
monthly to the Issuer a list of the principal and
interest to be paid on Notes maturing in the next
succeeding six months. The Trustee, or the Designated
Agent, will assume responsibility for withholding
taxes on interest paid as required by law.
Acceptance
of Offers: The Agents will promptly advise the Issuer of each
reasonable offer to purchase Notes received by it,
other than those rejected by the Agents. The Agents
may, in their discretion reasonably exercised,
without notice to the Issuer, reject any offer
received by it, in whole or in part. The Issuer will
have the sole right to accept offers to purchase
Notes and may reject any such offer, in whole or in
part. If the Issuer rejects an offer, the Issuer will
promptly notify the Agents.
Settlement: All offers accepted by the Issuer will be settled on
the third Business Day next succeeding the date of
acceptance unless otherwise agreed by any purchaser,
the Agents and the Issuer. The settlement date shall
be specified upon receipt of an offer. Prior to 3:00
p.m., New York City time, on the business day prior
to the settlement date, the Issuer will
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instruct the Trustee, or the Designated Agent, to
authenticate and deliver the Notes pursuant to the
terms communicated by the Presenting Agent, as
hereinafter defined, pursuant to the next succeeding
section no later than 2:15 p.m., New York City time,
on that day.
Details for
Settlement: For each offer accepted by the Issuer, the Agent who
presented the offer (the "Presenting Agent") shall
communicate to the Issuer, Attention: Michael L.
Schwarz or Michael G. Malone (Fax No.: (704)
333-8340) who will provide a copy to the Trustee,
Attention: Corporate Trust Department (Fax No.: (704)
383-7316) and the Designated Agent, if any, by
facsimile transmission or other acceptable means the
following information (the "Purchase Information"):
1. Exact name in which the Note or
Notes are to be registered
("registered owner").
2. Exact address of registered owner.
3. Taxpayer identification number of
registered owner.
4. Principal amount of each Note to be
delivered to the registered owner.
5. Specified Currency and, if other
than U.S. dollar, denominations.
6. In the case of a Fixed Rate Note,
the interest rate or, in the case
of a Floating Rate Note, the
interest rate formula, the Initial
Interest Rate (if known at such
time), Index Maturity, Interest
Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if
any), minimum interest rate (if
any) and maximum interest rate (if
any).
7. Interest Payment Period and
Interest Payment Dates.
8. Maturity Date of Notes.
9. Issue Price of Notes.
10. Settlement date for Notes.
11. Presenting Agent's commission (to
be paid in the form of a discount
from the proceeds remitted to the
Issuer upon settlement).
12. Redemption provisions, if any.
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13. Repayment provisions, if any.
14. Original issue discount provisions,
if any.
15. In the case of Currency Indexed
Notes, the above-listed
information, as applicable and the
Base Exchange Rate(s), Base
Interest Rate and Indexed
Currencies.
16. In the case of Dual Currency Notes,
the above listed information, as
applicable, and the Optional
Payment Currency, Designated
Exchange Rate and Option Election
Dates.
The issue date of, and the settlement date
for, Notes will be the same. Before
accepting any offer to purchase Notes to be
settled in less than three days, the Issuer
shall verify that the Trustee, or the
Designated Agent, will have adequate time to
prepare and authenticate the Notes. Prior to
preparing the Notes for delivery, the
Trustee, or the Designated Agent, will
confirm the Purchase Information by
telephone with the Presenting Agent and the
Issuer.
Confirmation: For each accepted offer, the Presenting Agent will
issue a confirmation, in writing, telephonically or
through any other commonly used method of
communication to the purchaser and a confirmation to
the Issuer, Attention: Michael L. Schwarz or Michael
G. Malone (Fax No.: (704) 333-8340).
Note Deliveries
and Cash Payment: Upon the receipt of appropriate documentation and
instructions from the Issuer and verification
thereof, the Trustee, or the Designated Agent, will
cause the Notes to be prepared and authenticated and
hold the Notes for delivery against payment.
The Trustee, or the Designated Agent, will deliver
the Notes, in accordance with instructions from the
Issuer, to the Presenting Agent, as the Issuer's
agent, for the benefit of the purchaser only against
payment in immediately available funds in an amount
equal to the face amount of the Notes less the
Presenting Agent's commission plus any premium or
less any discount provided, however, that the
Trustee, or the Designated Agent, may deliver Notes
to the Presenting Agent against receipt therefor and,
later the same day, receipt of such funds in such
amount. Upon receipt of such payment, the Trustee, or
the Designated Agent, shall pay promptly an amount
equal thereto to the Issuer in immediately available
funds by wire transfer to the account of the Issuer
maintained at First Union National Bank, Account
Number 2000000560030.
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The Presenting Agent, as the Issuer's agent, will
deliver the Notes (with the written confirmation
provided for above) to the purchaser thereof against
payment by such purchaser in immediately available
funds. Delivery of any confirmation or Note will be
made in compliance with "Delivery of Prospectus"
below.
Fails: In the event that a purchaser shall fail to accept
delivery of and make payment for a Note on the
settlement date, the Presenting Agent will notify the
Trustee or the Designated Agent and the Issuer, by
telephone, confirmed in writing. If the Note has been
delivered to the Presenting Agent, as the Issuer's
agent, the Presenting Agent shall return such Note to
the Trustee, or the Designated Agent. If funds have
been advanced for the purchase of such Note, the
Trustee, or the Designated Agent, will, immediately
upon receipt of such Note contact the Issuer (to the
attention of Michael L. Schwarz or Michael G. Malone
(Fax No.: (704) 333-8340) advising the Issuer of such
failure. At such time, the Issuer will refund the
payment previously made by the Presenting Agent in
immediately available funds. Such payments will be
made on the settlement date, if possible, and in any
event not later than the business day following the
settlement date. If such failure shall have occurred
for any reason other than the failure of the
Presenting Agent to provide the Purchase Information
to the Issuer or to provide a confirmation to the
purchaser, the Issuer will reimburse the Presenting
Agent on an equitable basis for its loss of the use
of funds during the period when they were credited to
the account of the Issuer.
Immediately upon receipt of the Note in respect of
which the failure occurred, the Trustee, or the
Designated Agent, will cause the Security Registrar
to make appropriate entries to reflect the fact that
the Note was never issued and will destroy the Note.
Procedure for
Rate Changes: The Issuer and the Agents will discuss from time to
time the price of, and the rates to be borne by, the
Notes that may be sold as a result of the
solicitation of offers by the Agent. Once an Agent
has recorded any indication of interest in Notes upon
certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement
to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and will arrange
to transmit such Pricing Supplement to the Commission
for filing in accordance with and within the time
prescribed by the applicable paragraph of Rule 424(b)
under the Act. The Issuer will supply at least two
copies of the Prospectus as then amended or
supplemented, and bearing such Pricing Supplement, to
the Presenting Agent. The Issuer shall use its
reasonable best efforts to send such Pricing
Supplement by telecopy or overnight express (for
delivery by the close of business on the
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applicable trade date, but in no event later than
11:00 a.m. New York City time, on the Business Day
following the applicable trade date) to the
Presenting Agent and the Trustee at the following
applicable address: if to J.P. Morgan Securities
Inc., to Transaction Execution Group, 60 Wall Street,
New York, N.Y. 10260, Telecopy Number (212) 648-5151,
if to First Union Securities, Inc., to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch & Co, by e-mail to: "mtnsuppl@na2.us.ml.com" or
to Merrill Lynch Production Technologies, 44B
Colonial Drive, Piscataway, New Jersey 08854,
Attention: Prospectus Operations/Nachman Kimerling,
Telecopy Number (732) 885-2774/5/6 for record keeping
purposes, one copy of such Pricing Supplement shall
also be mailed to Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World
Financial Center, 15th floor, New York, N.Y. 10080,
Attention: MTN Product Management, Telecopy Number
(212) 449-2234, and if to Morgan Stanley & Co.
Incorporated, to Medium Term Note Trading Desk, 1585
Broadway, 2nd Floor, New York, N.Y. 10036, Telecopy
Number (212)761-8846, and if to the Trustee, to:
First Union National Bank, Corporate Trust
Department, 401 South Tryon Street, 12th Floor,
Charlotte, N.C. 28288-1179, and the Designated Agent,
if any. In each instance that a Pricing Supplement is
prepared, the Presenting Agent will provide a copy of
such Pricing Supplement to each investor or purchaser
of the relevant Notes or its agent. Pursuant to Rule
434 of the Act, the Pricing Supplement may be
delivered separately from the Prospectus. No
settlements with respect to Notes upon such terms may
occur prior to such transmitting and such Agent will
not, prior to such transmitting, mail confirmations
to customers who have offered to purchase Notes upon
such terms. After such transmitting, sales, mailing
of confirmations and settlements may occur with
respect to Notes upon such terms, subject to the
provisions of "Delivery of Prospectus" below.
Outdated Pricing Supplements and copies of the
Prospectus to which they are attached (other than
those retained for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Issuer
and/or the Company may suspend solicitation of
purchases at any time and, upon receipt of notice
from the Issuer or the Company, the Agents will, as
promptly as practicable, but in no event later than
one business day following such notice, suspend
solicitation until such time as the Issuer or the
Company has advised them that solicitation of
purchases may be resumed. If the Agents receive the
notice from the Issuer or the Company contemplated by
Section 4(d) of the Agency Agreement, they will
promptly suspend solicitation and will only resume
solicitation as provided in the Agency
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Agreement. If the Issuer or the Company decides to
amend or supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly
advise the Agents and will furnish the Agents with
the proposed amendment or supplement in accordance
with the terms of the Agency Agreement. The Issuer
will promptly file or mail to the Commission for
filing such amendment or supplement, provide the
Agents with copies of any such amendment or
supplement, confirm to the Agents that such amendment
or supplement has been filed with the Commission and
advise the Agents that solicitation may be resumed.
Any such suspension shall not affect the Issuer's or
the Company's obligations under the Agency Agreement;
and in the event that at the time the Issuer or the
Company suspends solicitation of purchases there
shall be any offers already accepted by the Issuer
outstanding for settlement, the Issuer will have the
sole responsibility for fulfilling such obligations;
the Agents will make reasonable efforts to assist the
Issuer to fulfill such obligations, but the Agents
will not be obligated to fulfill such obligations.
The Issuer will in addition promptly advise the
Agents and the Trustee, or the Designated Agent, if
such offers are not to be settled and if copies of
the Prospectus as in effect at the time of the
suspension may not be delivered in connection with
the settlement of such offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended or
supplemented on the date of delivery thereof (except
as provided below), must be delivered to a purchaser
prior to or together with the earlier of delivery of
(i) the written confirmation provided for above, and
(ii) any Note purchased by such purchaser at the
following address: if to J.P. Morgan Securities Inc.,
to Transaction Execution Group, 60 Wall Street, New
York, N.Y. 10260, Telecopy Number (212) 648-5151, if
to First Union Securities, Inc., to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to MTN
Product Management, 4 World Financial Center, 15th
Floor, New York, N.Y. 10080, Telecopy Number (212)
449-2234, and if to Morgan Stanley & Co.
Incorporated, to Medium Term Note Trading Desk, 1585
Broadway, 2nd floor, New York, N.Y. 10036, Telecopy
Number (212) 761-8846. The Issuer shall ensure that
the Presenting Agent receives copies of the
Prospectus and each amendment or supplement thereto
(including appropriate Pricing Supplements) in such
quantities and within such time limits as will enable
the Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these
procedures and in compliance with the preceding
sentence. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been
supplemented solely to reflect any sale of Notes on
terms different from those agreed to between the
Issuer and such purchaser or a change in posted rates
not applicable to such purchaser, such purchaser
shall not receive the Prospectus as supplemented by
such new supplement, but shall
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receive the Prospectus as supplemented to reflect the
terms of the Notes being purchased by such purchaser
and otherwise as most recently amended or
supplemented on the date of delivery of the
Prospectus.
Authenticity of
Signatures: The Issuer will cause the Trustee, or the Designated
Agent, to furnish the Agent from time to time with
the specimen signatures of each of the officers,
employees or agents of the Trustee, or the Designated
Agent, who have been authorized by the Trustee, or
the Designated Agent, respectively, to authenticate
Notes, but the Agent will have no obligation or
liability to the Issuer or the Trustee, or the
Designated Agent, in respect of the authenticity of
the signature of any officer, employee or agent of
the Issuer or the Trustee, or the Designated Agent,
on any Note.
Advertising Cost: The Issuer and the Company will determine with the
Agent the amount of advertising that may be
appropriate in offering the Notes.
Business Day: "Business Day" means any day (other than a Saturday
or Sunday) on which banking institutions in The City
of New York are open for business (and, (i) with
respect to LIBOR Notes which is also a day on which
dealings in deposits in U.S. dollars are transacted
in the London interbank market, and (ii) with respect
to Notes denominated in a Specified Currency other
than U.S. dollars, on which banking institutions in
the principal financial center of the country of the
Specified Currency are open for business).
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PART II: ADMINISTRATIVE PROCEDURES FOR GLOBAL NOTE
METHOD OF BOOK-ENTRY NOTES
The following explains the administrative procedures for the Global
Note method of the DTC book-entry system. Any reference to "Book-Entry Notes" in
this Part II refers to the Global Note method (for a discussion of the Master
Note method of the DTC book-entry system, see Part III below). Certain generally
applicable administrative procedures are set forth in Part I above (See
"Issue/Authentication Date", "Price to Public", "Minimum Purchase",
"Authenticity of Signatures", "Advertising Cost", and "Business Day"). In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Both Fixed and Floating Rate Notes denominated and payable in
U.S. dollars may be issued in book-entry form. Single and Multi-Indexed Notes
may also be issued in book-entry form.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Issuer will issue a single global security in
fully registered form without coupons (a "Global
Note") representing up to $250,000,000 principal
amount of all such Notes that have the same Stated
Maturity, redemption provisions, if any, repayment
provisions, if any, Interest Payment Dates, Original
Issue Date, original issue discount provisions, if
any, and, in the case of Fixed Rate Notes, interest
rate, or in the case of Floating Rate Notes, interest
rate formula, initial interest rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), minimum interest rate
(if any) and maximum interest rate (if any) and, in
the case of Fixed Rate Notes or Floating Rate Notes
that are also Currency Indexed Notes, Specified
Currency, Indexed Currency, Face Amount and Base
Exchange Rate and the Base Interest Rate, if any, or
that are also other Indexed Notes, the same terms
(all of the foregoing are collectively referred to as
the "Terms"). Each Global Note will be dated and
issued as of the date of its settlement date, which
will be (i) with respect to an original Global Note
(or any portion thereof), its original issue date,
and (ii) following a consolidation of Global Notes,
the most recent Interest Payment Date to which
interest has been paid or duly provided for on the
predecessor Global Notes, regardless of the date of
authentication of such subsequently issued Global
Note. Each Book-Entry Note will be deemed to have
been dated and issued as of the settlement date,
which date shall be the Original Issue Date. No
Global Note will represent any Certificated Note.
Identification
Numbers: The Issuer has arranged with the CUSIP Service Bureau
of Standard & Poor's Ratings Services (the "CUSIP
Service Bureau") for the reservation
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of a series of CUSIP numbers consisting of
approximately 900 CUSIP numbers relating to
Book-Entry Notes. The Trustee, the Issuer and DTC
have obtained from the CUSIP Service Bureau a written
list of such reserved CUSIP numbers. The Trustee will
assign CUSIP numbers to Global Notes as described
below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to Global
Notes. The Trustee will notify the Issuer at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Notes, and, if it deems
necessary, the Issuer will reserve additional CUSIP
numbers for assignment to Global Notes representing
Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Issuer shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration: Each Global Note will be issued only in fully
registered form without coupons. Each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register
maintained under the Indenture. The beneficial owner
of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or more
indirect participants in DTC acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
(a copy of which shall be attached to the Global Note
resulting from such consolidation) specifying (i) the
CUSIP numbers set forth on two or more outstanding
Global Notes that represent Book-Entry Notes having
the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which such
Global Notes shall be exchanged for a single
replacement Global Note and (iii) a new CUSIP number
to be assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange
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date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange
date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global
Notes to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Notes for a single Global Note bearing
the new CUSIP number and a new Original Issue Date
and the CUSIP numbers of the exchanged Global Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned.
Maturities: Each Book-Entry Note will mature on a Business Day
nine months or more from the settlement date for such
Note.
Notice of
Repayment Terms: With respect to each Book-Entry Note that is
repayable at the option of the Holder the Trustee
will furnish DTC on the settlement date pertaining to
such Book-Entry Note a notice setting forth the terms
of such repayment option. Such terms shall include
the start date and end dates of the first exercise
period, the purchase date following such exercise
period, the frequency that such exercise periods
occur (i.e., quarterly, semiannually, annually, etc.)
and if the repayment option expires before maturity,
the same information (except frequency) concerning
the last exercise period. It is understood that the
exercise period shall be at least 15 calendar days
long and that the purchase date shall be at least
seven calendar days after the last day of the
exercise period.
Redemption and
Repayment: The Trustee will comply with the terms of the Letter
with regard to redemptions and repayments of the
Notes. If a Global Note is to be redeemed or repaid
in part, the Trustee will exchange such Global Note
for two Global Notes, one of which shall represent
the portion of the Global Note being redeemed or
repaid and shall be canceled immediately after
issuance and the other of which shall represent the
remaining portion of such Global Note and shall bear
the CUSIP number of the surrendered Global Note.
Denominations: Book-Entry Notes will be issued in principal amounts
of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000. Global Notes will be
denominated in principal amounts not in excess of
$250,000,000.
Interest: General. Interest on each Book-Entry Note will begin
to accrue from the Original Issue Date of the Global
Note representing such Note or from the most recent
date to which interest has been paid, as the case may
be, in accordance with the terms of the Note, as
described in the Prospectus Supplement (as defined in
the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Standard & Poor's
Ratings Services will use the information received in
the pending deposit message described under the
Settlement Procedure "C" below in order to include
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the amount of any interest payable and certain other
information regarding the related Global Note in the
appropriate weekly bond report published by Standard
& Poor's Ratings Services.
Notice of Interest
Payment and Regular
Record Dates: On the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Issuer and DTC a written list of Regular Record Dates
and Interest Payment Dates that will occur with
respect to Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly
after each Interest Determination Date or Calculation
Date, as applicable (as defined in or pursuant to the
applicable Note) for Floating Rate Notes, the Issuer,
upon receiving notice thereof, will notify Standard &
Poor's Ratings Services of the interest rate
determined on such Interest Determination Date or
Calculation Date, as applicable.
Calculation of
Interest: Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) and interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. With respect to
Floating Rate Book-Entry Notes, the Calculation Agent
shall determine the interest for each Interest Reset
Date and communicate such interest rate to the Issuer
and the Issuer will promptly notify the Trustee and
the Paying Agent of each such determination.
Payments of
Principal and
Interest: Promptly after each Regular Record Date, the Trustee
will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity) and the total of such
amounts. The Issuer will confirm with the Trustee the
amount payable on each Global Note on such Interest
Payment Date. DTC will confirm the amount payable on
each Global Note on such Interest Payment Date by
reference to the daily or weekly bond reports
published by Standard & Poor's Ratings Services. The
Issuer will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (other than at maturity), and the Trustee will
pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment".
Payments at
Maturity: On or about the first Business Day of each month, the
Trustee will deliver to the Issuer and DTC a written
list of principal and interest to be paid on each
Global Note maturing either at Stated Maturity or on
a Redemption or Repayment Date in the following
month. The Issuer, the Trustee and
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54
DTC will confirm the amounts of such principal and
interest payments with respect to each such Global
Note on or about the fifth Business Day preceding the
maturity of such Global Note. The Issuer will pay to
the Trustee, as paying agent, the principal amount of
such Global Note, together with interest due at such
maturity. The Trustee will pay such amounts to DTC at
the times and in the manner set forth below under
"Manner of Payment". Promptly after payment to DTC of
the principal and interest due at the maturity of
such Global Note, the Trustee will cancel and destroy
such Global Note in accordance with the terms of the
Indenture and deliver a certificate of destruction to
the Issuer.
Manner of Payment: The total amount of any principal and interest due on
Global Notes on any Interest Payment Date or at
maturity shall be paid by the Issuer to the Trustee
in funds available for use by the Trustee as of 9:30
A.M. (New York City time), or as soon as practicable
thereafter on such date. The Issuer will confirm
instructions regarding payment in writing to the
Trustee. Prior to 10:00 A.M. (New York City time) on
each Maturity Date or as soon as possible thereafter,
following receipt of such funds from the Issuer, the
Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified
by DTC, in funds available for immediate use by DTC,
each payment of principal (together with interest
thereon) due on Global Notes on any Maturity Date. On
each Interest Payment Date, interest payments shall
be made to DTC in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry Notes represented by such Global Notes are
recorded in the book-entry system maintained by DTC.
Neither the Issuer nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes: The amount of any taxes required under applicable law
to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by
the Participant, indirect participant in DTC or other
Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Acceptance
of Offers: Each Agent will promptly advise the Issuer of each
reasonable offer to purchase Notes received by it,
other than those rejected by such Agent. Each Agent
may, in its discretion reasonably exercised, without
notice to the Issuer, reject any offer received by
it, in whole or in part. The Issuer will have the
sole right to accept offers to purchase Notes and may
reject
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any such offer, in whole or in part. If the Issuer
rejects an offer, the Issuer will promptly notify
such Agent.
Settlement: The receipt by the Issuer of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Note or
Global Notes representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Issuer will be settled on the third
Business Day from the date of the sale pursuant to
the timetable for settlement set forth below unless
the Issuer and the purchaser agree to settlement on
another day which shall be no earlier than the next
Business Day.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Issuer through an Agent as agent,
shall be as follows:
A. For each offer accepted by the Issuer, the
Presenting Agent shall communicate to the
Issuer, Attention: Michael L. Schwarz or
Michael G. Malone (Fax No.: (704) 333-8340)
who will provide a copy to the Trustee,
Attention: Corporate Trust Department (Fax
No.: (704) 383-7316) and the Designated
Agent, if any, by facsimile transmission or
other acceptable means, the information set
forth below:
1. Principal amount.
2. Maturity Date of Notes.
3. In the case of a Fixed Rate
Book-Entry Note, the interest rate
or, in the case of a Floating Rate
Book-Entry Note, the Interest Rate
Formula, the Initial Interest Rate
(if known at such time), Index
Maturity, Interest Reset Period,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any).
4. Interest Payment Period and
Interest Payment Dates.
5. Redemption provisions, if any.
6. Repayment provisions, if any.
7. Settlement date (Original Issue
Date).
8. Price to public of the Note
(expressed as a percentage).
9. Agent's commission (to be paid in
the form of a discount from the
proceeds remitted to the Issuer
upon settlement).
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10. Original issue discount provisions
if any.
11. In the case of Currency Indexed
Notes, the above-listed
information, as applicable, and the
Base Exchange Rate(s), Base
Interest Rate and Indexed
Currencies.
12. In the case of Dual Currency Notes,
the above-listed information, as
applicable, and the Optional
Payment Currency, Designated
Exchange Rate and Optional Election
Dates.
13. Net proceeds to the Issuer.
B. The Trustee will confirm the information set
forth in Settlement Procedure "A" above by
telephone with such Agent and the Issuer.
C. The Trustee will assign a CUSIP number to
the Global Note representing such Note and
will telephone the Issuer and advise the
Issuer of such CUSIP number. The Trustee
will enter a pending deposit message through
DTC's Participant Terminal System, providing
the following settlement information to DTC
(which shall route such information to
Standard & Poor's Ratings Services) and the
Presenting Agent:
1. The applicable information set
forth in Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related DTC
Record Date (which, in the case of
Floating Rate Notes which reset
daily or weekly shall be the date
five calendar days immediately
preceding the applicable Interest
Payment Date and in the case of all
other Notes shall be the Regular
Record Date as defined in the
Note), the amount of interest
payable on such Interest Payment
Date per $1,000 principal amount of
Notes at Maturity, and amount of
interest payable per $1,000
principal amount of Notes in the
case of Fixed Rate Notes.
4. CUSIP number of the Global Note
representing such Note.
5. Whether such Global Note will
represent any other Book-Entry Note
(to the extent known at such time).
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D. To the extent the Issuer has not already
done so, the Issuer will deliver to the
Trustee a Pricing Supplement in a form that
has been approved by the Issuer and the
Agents. The Issuer will also deliver to the
Trustee a Global Note representing such
Note.
E. The Trustee will complete and authenticate
the Global Note representing such Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to such Agent's participant
account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to
the price of such Note less such Agent's
commission. The entry of such a deliver
order shall constitute a representation and
warranty by the Trustee to DTC that (i) the
Global Note representing such Book-Entry
Note has been executed, delivered and
authenticated and (ii) the Trustee is
holding such Global Note pursuant to the
relevant Medium-Term Note Certificate
Agreement between the Trustee and DTC.
H. An Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
such Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. The Trustee, upon confirming receipt of such
funds in accordance with Settlement
Procedure "G", will wire transfer to the
account of the Issuer maintained at First
Union National Bank, Account Number
2000000560030, in funds available for
immediate use, the amount transferred to the
Trustee in accordance with Settlement
Procedure "G".
K. An Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note
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a confirmation order or orders through DTC's
institutional delivery system or by mailing
a written confirmation to such purchaser.
Settlement
Procedure
Timetable: For orders of Book-Entry Notes solicited by the
Agent, as agent, and accepted by the Issuer for
settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but not
later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
------------------------------------------------
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement
E 9:00 a.m. on settlement date
F 10:00 a.m. on settlement date
G-H 2:00 p.m. on settlement date
I 4:45 p.m. on settlement date
J-K 5:00 p.m. on settlement date
If a sale is to be settled two Business Days after
the sale date, Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable but not
later than 11:00 a.m., 12:00 noon and 2:00 p.m., as
the case may be, on the first Business Day after the
sale date.
If a sale is to be settled more than two Business
Days after the sale date, Settlement Procedure "A"
shall be completed as soon as practicable but no
later than 11:00 a.m. on the first Business Day after
the sale date and Settlement Procedures "B" and "C"
shall be completed as soon as practicable but no
later than 12:00 noon and 2:00 p.m., as the case may
be, on the second Business Day before the settlement
date. If the initial interest rate for a Floating
Rate Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but not
later than 12:00 noon and 2:00 p.m., respectively, on
the Business Day before the settlement date.
Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement
date.
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If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, upon receipt of notice from
the Issuer, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If an Agent or Trustee fails to
enter an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "G",
the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable,
a withdrawal message instructing DTC to debit such
Note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the
Trustee's participant account contains a principal
amount of the Global Note representing such Note that
is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Note, the Trustee will mark such Global Note
"canceled", make appropriate entries in its records
and send such canceled Global Note to the Issuer. The
CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes
represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes, one
of which shall represent such Book-Entry Note or
Notes and shall be canceled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by
the surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal system reversing the orders entered pursuant
to Settlement Procedures "G" and "H", respectively.
Thereafter, the Trustee will deliver the withdrawal
message and take the applicable related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than the
failure of the Presenting Agent to provide the
Purchase Information to the Issuer or to provide a
confirmation to the purchaser, the Issuer will
reimburse the Presenting Agent on an equitable basis
for its loss of the use of funds during the period
when they were credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with
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respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Note, the Trustee will provide, in accordance with
Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Note
representing the other Book-Entry Notes to have been
represented by such Global Note and will make
appropriate entries in its records.
Procedure for
Rate Changes: The Issuer and each Agent will discuss from time to
time the price of, and the rates to be borne, by the
Notes that may be sold as a result of the
solicitation of offers by any Agent. Once an Agent
has recorded any indication of interest in Notes upon
certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement
to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and will arrange
to transmit such Pricing Supplement to the Commission
for filing in accordance with and within the time
prescribed by the applicable paragraph of Rule 424(b)
under the Act. The Issuer will supply at least two
copies of the Prospectus as then amended or
supplemented, and bearing such Pricing Supplement, to
the Presenting Agent. The Issuer shall use its
reasonable best efforts to send such Pricing
Supplement by telecopy or overnight express (for
delivery by the close of business on the applicable
trade date, but in no event later than 11:00 a.m. New
York City time, on the Business Day following the
applicable trade date) to the Presenting Agent and
the Trustee at the following applicable address: if
to J.P. Morgan Securities Inc., to Transaction
Execution Group, 60 Wall Street, New York, N.Y.
10260, Telecopy Number (212) 648-5151, if to First
Union Securities, Inc., to Debt Syndicate Group, 301
South College Street, Charlotte, N.C. 28288, Telecopy
Number (704) 383-9165, if to Merrill Lynch & Co, by
e-mail to: "mtnsuppl@na2.us.ml.com" or to Merrill
Lynch Production Technologies, 44B Colonial Drive,
Piscataway, New Jersey 08854, Attention: Prospectus
Operations/Nachman Kimerling, Telecopy Number (732)
885-2774/5/6 for record keeping purposes, one copy of
such Pricing Supplement shall also be mailed to
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, 4 World Financial Center, North
Tower, 15th floor, New York, N.Y. 10080, Attention:
MTN Product Management, Telecopy Number (212)
449-2234, and if to Morgan Stanley & Co.
Incorporated, to Medium Term Note Trading Desk, 1585
Broadway, 2nd floor, New York, N.Y. 10036, Telecopy
Number (212)761-8846, and if to the Trustee, to:
Corporate Trust Department, 401 South Tryon Street,
12th Floor, Charlotte, N.C. 28288-1179, Telecopy
Number (704) 383-7316. In each instance that a
Pricing Supplement is prepared, the Presenting Agent
will provide a copy of such Pricing Supplement to
each investor or purchaser of the relevant Notes or
its agent. Pursuant to Rule 434 of the Act, the
Pricing Supplement may be delivered separately from
the Prospectus. No
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settlements with respect to Notes upon such terms may
occur prior to such transmitting and such Agent will
not, prior to such transmitting, mail confirmations
to customers who have offered to purchase Notes upon
such terms. After such transmitting, sales, mailing
of confirmations and settlements may occur with
respect to Notes upon such terms, subject to the
provisions of "Delivery of Prospectus" below.
Outdated Stickers, and copies of the Prospectus to
which they are attached (other than those retained
for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Issuer may
suspend solicitation of purchase at any time, and,
upon receipt of notice from the Issuer or the
Company, the Agents will as promptly as practicable,
but in no event later than one Business Day following
such notice, suspend solicitation until such time as
the Issuer has advised them that solicitation of
purchases may be resumed.
If the Agents receive the notice from the Issuer or
the Company contemplated by Section 4(d) of the
Agency Agreement, they will promptly suspend
solicitation and will only resume solicitation as
provided in the Agency Agreement. If the Issuer or
the Company decides to amend or supplement the
Registration Statement or the Prospectus relating to
the Notes, it will promptly advise the Agents and
will furnish the Agents with the proposed amendment
or supplement in accordance with the terms of the
Agency Agreement. The Issuer will promptly file or
mail to the Commission for filing such amendment or
supplement, provide the Agents with copies of any
such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed with
the Commission and advise the Agents that
solicitation may be resumed. Any such suspension
shall not affect the Issuer's obligations under the
Agency Agreement; and in the event that at the time
the Issuer or the Company suspends solicitation of
purchases there shall be any offers already accepted
by the Issuer outstanding for settlement, the Issuer
will have the sole responsibility for fulfilling such
obligations; the Agents will make reasonable efforts
to assist the Issuer to fulfill such obligations, but
the Agents will not be obligated to fulfill such
obligations. The Issuer will in addition promptly
advise the Agents and the Trustee if such offers are
not to be settled and if copies of the Prospectus as
in effect at the time of the suspension may not be
delivered in connection with the settlement of such
offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended or
supplemented on the date of delivery thereof (except
as provided below), must be delivered
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to a purchaser prior to or together with the earlier
of delivery of (i) the written confirmation provided
for above, and (ii) any Note purchased by such
purchaser at the following address: if to J.P. Morgan
Securities Inc., to Transaction Execution Group, 60
Wall Street, New York, N.Y. 10260, Telecopy Number
(212) 648-5151, if to First Union Securities, Inc.,
to Debt Syndicate Group, 301 South College Street,
Charlotte, N.C. 28288, Telecopy Number (704)
383-9165, if to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, to MTN Product Management, 4 World
Financial Center, 15th Floor, New York, N.Y. 10080,
Telecopy Number (212) 449-2234, and if to Morgan
Stanley & Co. Incorporated, to Medium Term Note
Trading Desk, 1585 Broadway, 2nd floor, New York,
N.Y. 10036, Telecopy Number (212) 761-8846. The
Issuer shall ensure that the Presenting Agent
receives copies of the Prospectus and each amendment
or supplement thereto (including appropriate Pricing
Supplements) in such quantities and within such time
limits as will enable the Presenting Agent to deliver
such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance
with the preceding sentence. If, since the date of
acceptance of a purchaser's offer, the Prospectus
shall have been supplemented solely to reflect any
sale of Notes on terms different from those agreed to
between the Issuer and such purchaser or a change in
posted rates not applicable to such purchaser, such
purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the
terms of the Notes being purchased by such purchaser
and otherwise as most recently amended or
supplemented on the date of delivery of the
Prospectus.
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PART III: ADMINISTRATIVE PROCEDURES FOR MASTER NOTE
METHOD OF BOOK-ENTRY NOTES
The following explains the administrative procedures for the Master
Note method of the DTC book-entry system. Any reference to "Book-Entry Notes" in
this Part III refers to the Master Note method (for a discussion of the Global
Note method of the book-entry system, see Part II above). (Certain generally
applicable administrative procedures are set forth in Part I above. See
"Issue/Authentication Date", "Price to Public", "Minimum Purchase",
"Authenticity of Signatures", "Advertising Cost", and "Business Day"). In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Both Fixed and Floating Rate Notes denominated and payable in
U.S. dollars may be issued in book-entry form. Single and Multi-Indexed Notes
may also be issued in book-entry form.
Issuance: On or before any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes
represented by one or more Master Notes, the Issuer
will deliver one or more Pricing Supplements (with a
Prospectus and a Prospectus Supplement attached
thereto unless previously delivered to the Trustee)
to the Trustee identifying each issue of Book-Entry
Notes that have the same Stated Maturity, redemption
provisions, if any, Interest Payment Dates, Original
Issue Date, original issue discount provisions, if
any, and, in the case of Fixed Rate Notes, interest
rate, or, in case of Floating Rate Notes, interest
rate formula, initial interest rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), minimum interest rate
(if any) and maximum interest rate (if any) and, in
the case of Fixed Rate Notes or Floating Rate Notes
that are also Currency Indexed Notes, Specified
Currency, Indexed Currency, Face Amount and Base
Exchange Rate and the Base Interest Rate, if any, or
that are also Other Indexed Notes, the same terms
(all of the foregoing are collectively referred to as
the "Terms"). Each Pricing Supplement shall be
accompanied by a letter from the Issuer (i) advising
the Trustee that as of the date of such letter, the
Issuer has issued Notes pursuant to the Indenture
having the Terms specified in such Pricing
Supplement, (ii) confirming that such Notes are debt
obligations of the Issuer referred to and evidenced
by the Master Note registered in the name of Cede &
Co., as nominee for DTC and (iii) requesting the
Trustee to make an appropriate entry identifying such
debt obligations on the records of the Issuer
maintained by the Trustee. Each Book-Entry Note will
be deemed to have been dated and issued as of the
settlement date, which date shall be the Original
Issue Date. No Master Note will represent any
Certificated Note.
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Identification
Numbers: The Issuer has arranged with the CUSIP Service Bureau
of Standard & Poor's Ratings Services (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers, consisting of approximately 900 CUSIP
numbers relating to Book-Entry Notes. The Trustee,
the Issuer and DTC have obtained from the CUSIP
Service Bureau a written list of such reserved CUSIP
numbers. The Trustee will assign CUSIP numbers to
each issue of Book-Entry Notes identified by a
Pricing Supplement as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Trustee has assigned to each issue of Book-Entry
Notes. The Trustee will notify the Issuer at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to issue of Book-Entry Notes, and,
if it deems necessary, the Issuer will reserve
additional CUSIP numbers for assignment to issues of
Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Issuer shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration: The Master Note representing the Book-Entry Notes
will be issued only in fully registered form without
coupons. The Master Note will be registered in the
name of Cede & Co., as nominee for DTC, on the
Securities Register maintained under the Indenture.
The beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more direct participants
in DTC (with respect to such Book-Entry Note, the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Book-Entry Note will be recorded through the records
of such Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers set forth on two or
more Pricing Supplements that identify issues of
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written
notice is delivered and at least thirty days before
the next Interest Payment Date for such issues of
Book-Entry Notes, and (iii) a new CUSIP number
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to be assigned to such issues of Book-Entry Notes
having the same terms. Upon receipt of such a notice,
DTC will send to its Participants (including the
Trustee) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the relevant issues of
Book-Entry Notes will no longer be valid. On the
specified exchange date, the CUSIP numbers of the
relevant issues of Book-Entry Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Maturities: Each Issue of Book-Entry Notes will mature on a
Business Day nine months or more from the settlement
date for such issue of Book-Entry Notes.
Notice of
Repayment: With respect to each Book-Entry Note that is
repayable at the option of the Holder the Trustee
will furnish DTC on the settlement date pertaining to
such Book-Entry Note a notice setting forth the terms
of such repayment option. Such terms shall include
the start date and end dates of the first exercise
period, the purchase date following such exercise
period, the frequency that such exercise periods
occur (i.e., quarterly, semiannually, annually, etc.)
and if the repayment option expires before maturity,
the same information (except frequency) concerning
the last exercise period. It is understood that the
exercise period shall be at least 15 calendar days
long and that the purchase date shall be at least
seven calendar days after the last day of the
exercise period.
Redemption and
Repayment: The Trustee will comply with the terms of the Letter
with regard to redemptions and repayments of the
Notes. If an issue of Book-Entry Notes is to be
redeemed or repaid in part, the Trustee will make
appropriate entries in its records to reflect the
remaining portion of such issue of Book-Entry Notes,
which portion shall bear the same CUSIP number as
prior to the redemption or repayment, as the case may
be.
Denominations: Book-Entry Notes will be issued in principal amounts
of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000.
Interest: General. Interest on each Book-Entry Note will begin
to accrue from the Original Issue Date of an issue of
Book-Entry Notes or from the most recent date to
which interest has been paid, as the case may be, and
will be calculated and paid in the manner described
in the Prospectus Supplement (as defined in the
Agency Agreement), as supplemented by the applicable
Pricing Supplement. Standard & Poor's Ratings
Services will use the information received in the
pending deposit message described under the
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Settlement Procedure "C" below in order to include
the amount of any interest payable and certain other
information regarding the related issue of Book-Entry
Notes in the appropriate weekly bond report published
by Standard & Poor's Ratings Services.
Notice of Interest
Payment and Regular
Record Dates: On the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Issuer and DTC a written list of Regular Record Dates
and Interest Payment Dates that will occur with
respect to Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly
after each Interest Determination Date or Calculation
Date, as applicable (as set forth in the Prospectus
Supplement, as supplemented by the applicable Pricing
Supplement and pursuant to the applicable Note) for
Floating Rate Notes, the Issuer, upon receiving
notice thereof, will notify Standard & Poor's Ratings
Services of the interest rate determined on such
Interest Determination Date or Calculation Date, as
applicable.
Calculation of
Interest: Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) and interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the Prospectus Supplement, as
supplemented by the applicable Pricing Supplement,
and pursuant to the applicable form of Notes. With
respect to Floating Rate Book-Entry Notes, the
Calculation Agent shall determine the interest for
each Interest Reset Date and communicate such
interest rate to the Issuer and the Issuer will
promptly notify the Trustee and the Paying Agent of
each such determination.
Payments of Principal
and Payment of Interest
Only Interest: Promptly after each Regular Record Date, the Trustee
will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each issue of Book-Entry Notes on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity) and
the total of such amounts. The Issuer will confirm
with the Trustee the amount payable on each issue of
Book-Entry Notes on such Interest Payment Date. DTC
will confirm the amount payable on each issue of
Book-Entry Notes on such Interest Payment Date by
reference to the daily or weekly bond reports
published by Standard & Poor's Ratings Services. The
Issuer will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (other than the maturity), and the Trustee will
pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment".
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Issuer and DTC a written list of principal
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and interest to be paid on each issue of Book-Entry
Notes represented by a single CUSIP number maturing
either at Stated Maturity or on a Redemption or
Repayment Date in the following month. The Issuer,
the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each
such issue of Book-Entry Notes on or about the fifth
Business Day preceding the maturity of such issue of
Book-Entry Notes. The Issuer will pay to the Trustee,
as paying agent, the principal amount of each issue
of Book-Entry Notes identified by a single CUSIP
number, together with interest due at such maturity.
The Trustee will pay such amounts to DTC at the times
and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the
principal and interest due at the maturity of each
issue of Book-Entry Notes, the Trustee will reduce
the principal amount of the Master Note representing
the issue of Book-Entry Notes and so advise the
Issuer.
Manner of Payment. The total amount of any principal
and interest due on each issue of Book-Entry Notes
identified by a single CUSIP number on any Interest
Payment Date or at maturity shall be paid by the
Issuer to the Trustee in funds available for use by
the Trustee as of 9:30 A.M. (New York City time), or
as soon as practicable thereafter on such date. The
Issuer will confirm instructions regarding payment in
writing to the Trustee. Prior to 10:00 A.M. (New York
City time) on each Maturity Date or as soon as
possible thereafter, following receipt of such funds
from the Issuer, the Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal
(together with interest thereon) due on each issue of
Book-Entry Notes on any Maturity Date. On each
Interest Payment Date, interest payments shall be
made to DTC in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry represented by the Master Note are
recorded in the book-entry system maintained by DTC.
Neither the Issuer nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding
payments and materials directly to the beneficial
owner of such Note.
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Acceptance
of Offers: Each Agent will promptly advise the Issuer of each
reasonable offer to purchase Notes received by it,
other than those rejected by the Agent. Such Agent
may, in its discretion reasonably exercised, without
notice to the Issuer, reject any offer received by
it, in whole or in part. The Issuer will have the
sole right to accept offers to purchase Notes and may
reject any such offer, in whole or in part. If the
Issuer rejects an offer, the Issuer will promptly
notify such Agent.
Settlement: The receipt by the Issuer of immediately available
funds in payment for a Book-Entry Note and receipt by
the Trustee of a property completed by the Trustee of
a properly completed Pricing Supplement shall
constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the Issuer
will be settled on the third Business Day from the
date of the sale pursuant to the timetable for
settlement set forth below unless the Issuer and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Issuer through an Agent as agent,
shall be as follows:
A. For each offer accepted by the Issuer, the
Presenting Agent shall communicate to the
Issuer, Attention: Michael L. Schwarz or
Michael G. Malone (Fax No.: (704) 333-8340)
who will provide a copy to the Trustee,
Attention: Corporate Trust Department (Fax
No.: (704) 383-7316), and the Designated
Agent, if any, by facsimile transmission or
other acceptable means, the information set
forth below:
1. Principal amount.
2. Maturity Date of Notes.
3. In the case of a Fixed Rate
Book-Entry Note, the interest rate
or, in the case of a Floating Rate
Book-Entry Note, the interest rate
formula, the Initial Interest Rate
(if known at such time), Index
Maturity, Interest Reset Period,
Interest Reset Dates, Spread or
Spread Multiplier (if any), minimum
interest rate (if any) and maximum
interest rate (if any).
4. Interest Payment Period and
Interest Payment Dates.
5. Redemption provisions, if any.
6. Repayment provisions, if any.
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7. Settlement date (Original Issue
Date).
8. Price to public of the Note
(expressed as a percentage).
9. Agent's commission (to be paid in
the form of a discount from the
proceeds remitted to the Issuer
upon settlement).
10. Original issue discount provisions
if any.
11. In the case of Currency Indexed
Notes, the above-listed
information, as applicable, and the
Base Exchange Rate(s), Base
Interest Rate and Indexed
Currencies.
12. In the case of Dual Currency Notes,
the above-listed information, as
applicable, and the Optional
Payment Currency, Designated
Exchange Rate and Optional Election
Dates.
13. Net proceeds to the Issuer.
B. The Trustee will confirm the information set
forth in Settlement Procedure "A" above by
telephone with such Agent and the Issuer.
C. The Trustee will assign a CUSIP number to
the issue of Book-Entry Notes and will
telephone the Issuer and notify the Issuer
of such CUSIP number. The Trustee will enter
a pending deposit message through DTC's
Participant Terminal System, providing the
following settlement information to DTC
(which shall route such information to
Standard & Poor's Ratings Services) and the
Presenting Agent:
1. The applicable information set
forth in Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for
each issue of Book-Entry Notes of
days by which such date succeeds
the related DTC Record Date (which,
in the case of Floating Rate Notes
which reset daily or weekly shall
be the date five calendar days
immediately preceding the
applicable Interest Payment Date
and in the case of all other Notes
shall be the Regular Record Date as
defined in the Prospectus
Supplement), the amount of interest
payable on such Interest Payment
Date per $1,000 principal amount of
Notes at Maturity, and amount of
interest payable per
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$1,000 principal amount of Notes in
the case of Fixed Rate Notes.
4. CUSIP number of the such issue of
Book-Entry Notes.
5. Whether such CUSIP number will
identify any other issue of
Book-Entry Notes (to the extent
known at such time).
D. To the extent the Issuer has not already
done so, the Issuer will deliver to the
Trustee a Pricing Supplement in a form that
has been approved by the Issuer and the
Agents and a letter advising of the relevant
Issuance.
E. DTC will credit such Book-Entry Notes to the
Trustee's participant account at DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Book-Entry
Notes to the Trustee's participant account
and credit such Book-Entry Notes to such
Agent's participant account and (ii) debit
such Agent's settlement account and credit
the Trustee's settlement account for an
amount equal to the price of such Book-Entry
Notes less such Agent's commission. The
entry of such a deliver order shall
constitute a representation and warranty by
the Trustee to DTC that (i) such Book-Entry
Notes have been executed, delivered and
authenticated and (ii) the Trustee is
holding the Master Note representing such
Book-Entry Notes pursuant to the relevant
Medium-Term Note Certificate Agreement
between the Trustee and DTC.
G. An Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
such Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. The Trustee, upon confirming receipt of such
funds in accordance with Settlement
Procedure "F", will wire transfer to the
account of the Issuer maintained at First
Union National Bank, Account Number
2000000560030, in funds available for
immediate use, the
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amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. An Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent,
as agent, and accepted by the Issuer for settlement
on the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
-----------------------------------------------
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement
E 9:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled two Business Days after
the sale date, Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable but not
later than 11:00 a.m., 12:00 noon and 2:00 p.m., as
the case may be, on the first Business Day after the
sale date.
If a sale is to be settled more than two Business
Days after the sale date, Settlement Procedure "A"
shall be completed as soon as practicable but no
later than 11:00 a.m. on the first Business Day after
the sale date and Settlement Procedures "B" and "C"
shall be completed as soon as practicable but no
later than 12:00 noon and 2:00 p.m., as the case may
be, on the second Business Day before the settlement
date. If the initial interest rate for a Floating
Rate Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but not
later than 12:00 noon and 2:00 p.m., respectively, on
the Business Day before the settlement date.
Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement
date.
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If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, upon receipt of notice from
the Issuer, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If an Agent or Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable, a withdrawal message instructing
DTC to debit such note to the Trustee's participant
account. DTC will process the withdrawal message,
provided that the Trustee's participant account
contains a principal amount of Book-Entry Notes
represented by the Master Note that is at least equal
to the principal amount to be debited. If a
withdrawal message is processed with respect to all
the Book-Entry Notes identified by a single CUSIP
number, the Trustee will advise the Issuer and will
make appropriate entries in its records. The CUSIP
number assigned to such issue of Book-Entry Notes
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the issue of
Book-Entry Notes identified by a single CUSIP number,
the Trustee will advise the Issuer and will make
appropriate entries in its records.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal system reversing the orders entered pursuant
to Settlement Procedures "F" and "G", respectively.
Thereafter, the Trustee will deliver the withdrawal
message and take the applicable related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than the
failure by the Presenting Agent to provide the
Purchase Information to the Issuer or to provide a
confirmation to the purchaser, the Issuer will
reimburse the Presenting Agent on an equitable basis
for its loss of the use of the funds during the
period when they were credited to the account of the
Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
Periodic Statements
from the Trustee: Periodically, the Trustee will send to the Issuer a
statement setting forth the principal amount of
Book-Entry Notes outstanding as of that date and
32
73
setting forth a brief description of any sales of
Book-Entry Notes of which the Issuer has advised the
Trustee but which have not yet been settled.
Procedure for Rate
Changes: The Issuer and each Agent will discuss from time to
time the price of, and the rates to be borne by the
Notes that may be sold as a result of the
solicitation of offers by any Agent. Once an Agent
has recorded any indication of interest in Notes upon
certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement
to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and will arrange
to transmit such Pricing Supplement to the Commission
for filing in accordance with and within the time
prescribed by the applicable paragraph of Rule 424(b)
under the Act. The Issuer will supply at least two
copies of the Prospectus as then amended or
supplemented, and bearing such Pricing Supplement, to
the Presenting Agent. No settlements with respect to
Notes upon such terms may occur prior to such
transmitting and such Agent will not, prior to such
transmitting, mail confirmations to customers who
have offered to purchase Notes upon such terms. After
such transmitting, sales and mailing of confirmations
and settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery of
Prospectus" below.
Outdated Stickers, and copies of the Prospectus to
which they are attached (other than those retained
for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Issuer may
suspend solicitation of purchase at any time, and,
upon receipt of notice from the Issuer or the
Company, the Agents will as promptly as practicable,
but in no event later than one Business Day following
such notice, suspend solicitation until such time as
the Issuer has advised them that solicitation of
purchases may be resumed.
If the Agents receive the notice from the Issuer or
the Company contemplated by Section 4(d) of the
Agency Agreement, they will promptly suspend
solicitation and will only resume solicitation as
provided in the Agency Agreement. If the Issuer or
the Company decides to amend or supplement the
Registration Statement or the Prospectus relating to
the Notes, it will promptly advise the Agents and
will furnish the Agents with the proposed amendment
or supplement in accordance with the terms of the
Agency Agreement. The Issuer will promptly file or
mail to the Commission for filing such amendment or
supplement, provide the Agents with copies of any
such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed with
the
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74
Commission and advise the Agents that solicitation
may be resumed. Any such suspension shall not affect
the Issuer's obligations under the Agency Agreement;
and in the event that at the time the Issuer suspends
solicitation of purchases there shall be any offers
already accepted by the Issuer outstanding for
settlement, the Issuer will have the sole
responsibility for fulfilling such obligations; the
Agents will make reasonable efforts to assist the
Issuer to fulfill such obligations, but the Agents
will not be obligated to fulfill such obligations.
The Issuer will in addition promptly advise the
Agents and the Trustee if such offers are not to be
settled and if copies of the Prospectus as in effect
at the time of the suspension may not be delivered in
connection with the settlement of such offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended or
supplemented on the date of delivery thereof (except
as provided below), must be delivered to a purchaser
prior to or together with the earlier of delivery of
(i) the written confirmation provided for above, and
(ii) any Note purchased by such purchaser at the
following address: if to J.P. Morgan Securities Inc.,
to Transaction Execution Group, 60 Wall Street, New
York, N.Y. 10260, Telecopy Number (212) 648-5151, if
to First Union Securities, Inc., to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to MTN
Product Management, 4 World Financial Center, 15th
Floor, New York, N.Y. 10080, Telecopy Number (212)
449-2234, and if to Morgan Stanley & Co.
Incorporated, to Medium Term Note Trading Desk, 1585
Broadway, 2nd floor, New York, N.Y. 10036, Telecopy
Number (212) 761-8846. The Issuer shall ensure that
the Presenting Agent receives copies of the
Prospectus and each amendment or supplement thereto
(including appropriate Pricing Supplements) in such
quantities and within such time limits as will enable
the Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these
procedures and in compliance with the preceding
sentence. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been
supplemented solely to reflect any sale of Notes on
terms different from those agreed to between the
Issuer and such purchaser or a change in posted rates
not applicable to such purchaser, such purchaser
shall not receive the Prospectus as supplemented by
such new supplement, but shall receive the Prospectus
as supplemented to reflect the terms of the Notes
being purchased by such purchaser and otherwise as
most recently amended or supplemented on the date of
delivery of the Prospectus.
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SCHEDULE I
Foreign Qualifications
- ------------------------------------------------------------------------------------------------
COMPANY STATE OF ORGANIZATION STATES OF FOREIGN QUALIFICATION
- ------------------------------------------------------------------------------------------------
Summit Properties Inc. o Maryland o Alabama
o Florida
o Georgia
o Indiana
o North Carolina
o Ohio
o Pennsylvania
o South Carolina
o Tennessee
o Virginia
- ------------------------------------------------------------------------------------------------
Summit Properties Partnership, L.P. o Delaware o Alabama
o Florida
o Georgia
o Indiana
o Maryland
o North Carolina
o Ohio
o Pennsylvania
o South Carolina
o Tennessee
o Virginia
o Washington, D.C.
- ------------------------------------------------------------------------------------------------
Summit Management Company o Maryland o Alabama
o Delaware
o Florida
o Georgia
o Indiana
o North Carolina
o Ohio
o Pennsylvania
o South Carolina
o Tennessee
o Texas
o Virginia
- ------------------------------------------------------------------------------------------------
Summit Apartment Builders, Inc. o Florida o North Carolina
o Pennsylvania
o Virginia
- ------------------------------------------------------------------------------------------------
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SCHEDULE II
SUMMIT PROPERTIES INC./SUMMIT PARTNERSHIP L.P.
LIST OF MATERIAL AGREEMENTS
1. Indenture, dated as of August 7, 1997, between the Partnership and
First Union National Bank, relating to the Partnership's Senior Debt
Securities (Exhibit 4.1 to the Partnership's Current Report on Form 8-K
filed on August 11, 1997, File No. 000-22411).
2. Supplemental Indenture No. 1, dated as of August 12, 1997, between the
Partnership and First Union National Bank (Exhibit 4.1 to the
Partnership's Amended Current Report on Form 8-K/A-1 filed on Augusts
18, 1997, File No. 000-22411).
3. Supplemental Indenture No. 2, dated as of December 17, 1997, between
the Partnership and First Union National Bank (Exhibit 4.1 to the
Partnership's Amended Current Report on Form 8-K/A-1 filed on December
17, 1997, File No. 000-22411).
4. [Supplemental Indenture No. 3, dated as of May 29, 1887, between the
Partnership and First Union National Bank. (Exhibit 4.2 to the
Partnership's Current Report on Form 8-K filed on June 2, 1998, File
No. 000-22411).]
5. The Partnership's 6.80% Note due 2002, dated August 12, 1997. (Exhibit
4.2 to the Partnership's Amended Current Report on Form 8-K/A-1 filed
on August 18, 1997, File No. 000-22411).
6. The Partnership's 6.95% Note due 2004, dated August 12, 1997. (Exhibit
4.3 to the Partnership's Amended Current Report on Form 8-K/A-1 filed
on August 18, 1997. File No. 000-22411).
7. The Partnership's 7.20% Note due 2007, dated August 12, 1997. (Exhibit
4.4 to the Partnership's Amended Current Report on Form 8-K/A-1 filed
on August 18, 1997, File No. 000-22411).
8. The Partnership's 6 5/8% Note due 2003, dated December 17, 1997.
(Exhibit 4.2 to the Partnership's Amended Current Report on Form
8-K/A-1 filed on December 17, 1997, File No. 000-22411).
9. Employment Agreement between the Company and William B. McGuire, Jr.
(Exhibit 10.7.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
10. Employment Agreement between the Company and William J. Hamilton.
(Exhibit 10.7.9 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
77
11. Employment Agreement between the Company and Michael L. Schwarz.
(Exhibit 10.7.10 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
12. Noncompetition Agreement between the Company and William F. Paulsen.
(Exhibit 10.8.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
13. Noncompetition Agreement between the Company and William B. McGuire.
(Exhibit 10.8.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
14. Noncompetition Agreement between the Company and William B. Hamilton.
(Exhibit 10.8.9 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
15. Noncompetition Agreement between the Company and Michael L. Schwarz.
(Exhibit 10.8.10 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
16. Executive Severance Agreement between the Company and William F.
Paulsen (Exhibit 10.9.1 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997, File No. 001-12792).
17. Executive Severance Agreement between the Company and William B.
McGuire, Jr. (Exhibit 10.9.2 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, File No. 001-12792).
18. Executive Severance Agreement between the Company and Michael L.
Schwarz. (Exhibit 10.9.3 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, File No. 001-12792).
19. Executive Severance Agreement between the Company and William B.
Hamilton. (Exhibit 10.9.5 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, File No. 001-12792).
20. $31,000,000 Loan Agreement, dated July 31, 1996, between the
Partnership and Wachovia Bank of North Carolina, N.A. (Exhibit 10.34 to
the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996, File No. 001-12792).
21. First Amendment to $150,000,000 Credit Agreement dated July 24, 1997,
among the Partnership , First Union National Bank of North Carolina and
Wachovia Bank of North Carolina, N.A. (Exhibit 10.1 to the
Partnership's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30,1997, File No. 000-22411).
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78
22. Promissory Note and Security Agreement, dated January 28, 1998 between
the Company and Michael L. Schwarz. (Exhibit 10.14.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997,
File No. 001-12792).
23. Promissory Note and Security Agreement, dated January 28, 1998 between
the Company and William B. Hamilton. (Exhibit 10.14.2 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997,
File No. 001-12792).
24. Form of Promissory Note and Security Agreement between the Company and
the employees named in the Schedule thereto. (Exhibit 10.14.3 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, File No. 001-12792).
25. Registration Rights Agreement, dated October 12, 1994 between the
Company and PK Partners, L.P. (Exhibit 10.15.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, File
No. 001-12792).
26. Registration Rights Agreement, dated December 11, 1995, between the
Company and Bissell Ballantyne, LLC. (Exhibit 10.2 to the Company's
Registration Statement on Form S-3, Registration No. 333-24669).
27. Registration Rights Agreement, dated January 10, 1996, among the
Company, Joseph H. Call and Gary S. Cangelosi. (Exhibit 10.2 to the
Company's Registration Statement on Form S-3, Registration No.
333-24669).
28. Registration Rights Agreement, dated February 20, 1997, among the
Company, The Northwestern Mutual Life Insurance Company, J. Ronald
Terwilliger, J. Ronald Terwilliger Grantor Trust, Grow Residential
Realty Investors, L.P., Douglas A. Hocksema, Randy J. Pace, Clifford A.
Breining, TCF Residential Partnership, Ltd. And Trammell S. Crow.
(Exhibit 10.2 to the Company's Registration Statement on Form S-3,
Registration No. 333-24669).
29. Registration Rights Agreement, dated May 16, 1995, between the Company
and the individuals named therein executed in connection with the
Crosland Acquisition. (Exhibit 10.15.6 to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997, File No.
001-12792).
30. Agreement to Contribute, dated February 13, 1995, between the Company,
the Partnership and Crosland Partnerships. (Exhibit 2.1 to the
Company's Current Report on Form 8-K dated May 16, 1995, File No.
001-12792).
31. Credit Agreement, dated as of March 27, 1998, by and among the
Partnership, the Company, the Banks listed on the signature pages
thereof and the other Lenders from time to time party thereto, and
First Union National Bank, as Administrative Agent for the Lenders
thereunder (the "1998 Credit Agreement"). (Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998, File No. 001-12792).
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79
32. Promissory Note, dated as of January, 28, 1998, evidencing a loan of
$42,258 to Michael L. Schwarz for the purpose of paying tax liability
associated with Restricted Stock Award. (Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1998, File No. 001-12792).
33. Promissory Note, dated as of January 30, 1998, evidencing a loan of
$361,785 to Michael L. Schwarz for the purpose of purchasing shares of
common stock of the Company. (Exhibit 10.3 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1998, File
No. 001-12792).
34. Promissory Note, dated as of January 28, 1998, evidencing a loan of
$57,418 to William B. Hamilton for the purpose of paying tax liability
associated with Restricted Stock Award. (Exhibit 10.4 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1998, File No. 001-12792).
35. Promissory Note, dated as of January 30, 1998, evidencing a loan of
$441,562 to William B. Hamilton for the purpose of purchasing shares of
common stock of the Company. (Exhibit 10.5 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1998, File
No. 001-12792).
36. 6.75% Medium-Term Note due 2001 in principal amount of $30,000,000
issued by the Partnership on July 28, 1998. (Exhibit 10.2 to the
Partnership's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1998, File No. 000-22411).
37. 6.7% Medium-Term Note due 2000 in principal amount of $25,000,000
issued by the Partnership on October 5, 1998. (Exhibit 10.1 to the
Partnership's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1998, File No. 000-22411).
38. Promissory Note, dated as of August 5, 1998, evidencing a loan of
$961,000 to Steven R. LeBlanc for the purpose of purchasing shares of
common stock of the Company. (Exhibit 10.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 1998,
File No. 001-12792).
39. Agreement and Plan of Reorganization dated as of October 31, 1998 among
the Company, affiliates of the Company (including the Partnership),
Ewing Industries, Inc., and affiliates of Ewing Industries, Inc.
Exhibits to this Agreement which have been omitted shall be
supplementally furnished to the Commission upon request. (Exhibit 2.1
to the Company's Current Report on Form 8-K filed on November 13, 1998,
File No. 001-12792).
40. Employment Agreement between the Company and Steven R. LeBlanc.
(Exhibit 10.7.11 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998, File No. 001-12792).
41. Noncompetition Agreement between the Company and Steven R. LeBlanc.
(Exhibit 10.8.11 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998, File No. 001-12792).
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80
42. Executive Severance Agreement between the Company and Steven R.
LeBlanc. (Exhibit 10.9.6 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998, File No. 001-12792).
43. Promissory Note, dated February 2, 1999, evidencing a loan of
$1,000,487.05 to Steven R. LeBlanc for the purpose of purchasing shares
of common stock of the Company. (Exhibit 10.12.10 of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1998,
File No. 001-12792).
44. Promissory Note, dated February 2, 1999, evidencing a loan of
$450,004.09 to Michael L. Schwarz for the purpose of purchasing shares
of common stock of the Company. (Exhibit 10.12.11 of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1998,
File No. 001-12792).
45. Letter Agreement, dated November 25, 1998, by and among the
Partnership, the Company, Wachovia Bank, N.A. ("Wachovia") and First
Union National Bank, as Administrative Agent and Lender under the 1998
Credit Agreement ("First Union"), evidencing an increase in First
Union's and Wachovia's Commitments (as defined in the 1998 Credit
Agreement) under the 1998 Credit Agreement of $15,000,000 and
$10,000,000, respectively. (Exhibit 10.15.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, File
No. 001-12792).
46. Replacement Competitive Note, dated November 25, 1998, by and among the
Partnership, the Company and First Union reflecting the increased
Commitments. (Exhibit 10.15.3 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
47. Replacement Competitive Note, dated November 25, 1998, by and among the
Partnership, the Company and Wachovia reflecting the increased
Commitments. (Exhibits 10.15.4 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
48. Replacement Competitive Note, dated November 25, 1998, by and among the
Partnership, the Company and NationsBank, N.A. reflecting the increased
Commitments. (Exhibits 10.15.5 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
49. Replacement Competitive Note, dated November 25, 1998, by and among the
Partnership, the Company and Commerzbank, A.G. reflecting the increased
Commitments. (Exhibits 10.15.6 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
50. Replacement Competitive Note, dated November 25, 1998, by and among the
Partnership, the Company and PNC Bank, National Association reflecting
the increased Commitments. (Exhibits 10.15.7 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, File
No. 001-12792).
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81
51. Replacement Competitive Note, dated November 25, 1998, by and among the
Partnership, the Company and AmSouth Bank reflecting the increased
Commitments. (Exhibits 10.15.8 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
52. Replacement Revolving Note, dated November 25, 1998, by and among the
Partnership, the Company and First Union reflecting the increased
Commitments. (Exhibits 10.15.9 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
53. Replacement Revolving Note, dated November 25, 1998, by and among the
Partnership, the Company and Wachovia reflecting the increased
Commitments. (Exhibits 10.15.10 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, File No. 001-12792).
54. 7.59% Medium-Term Note due on March 16, 2009 in principal amount of
$25,000,000 issued by the Partnership on March 18, 1999 (Exhibit 4.1 of
the Partnership's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1999, File No. 000-22411).
55. The Company 1994 Stock Option and Incentive Plan, as Amended and
Restated (Exhibit 4.5 to the Company's Registration Statement on Form
S-8, Registration No. 333-79897).
56. Amendment Agreement, dated as of May 1, 1999, by and among the Company,
the Management Company and William B. Hamilton (Exhibit 10.2 to the
Company's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1999, File No. 001-12792).
57. Indemnification Agreement, dated as of July 20, 1999, by and among the
Company, the Partnership and each director and executive officer of the
Company (Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 1999, File No. 001-12792).
58. Employment Agreement between the Company and William F. Paulsen
(Exhibit 7.1 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999, File No. 001-12792).
59. Registration Rights and Lock-up Agreement, dated October 31, 1998, by
and between the Company, the Partnership and the holders named therein
(Exhibit 99.1 to the Company's Registration Statement on Form S-3,
Registration No. 333-93923).
60. Registration Rights Agreement, dated February 8, 1994, between the
Company and the Continuing Investors named therein (Exhibit 10.13.2 to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, File No. 001-12792).
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SCHEDULE III
List of all of the attorneys at Goodwin, Procter & Hoar LLP who are
currently working on matters for the Company or any of its Subsidiaries.
Gilbert G. Menna, P.C.
David W. Watson, P.C.
Ross D. Gillman
Jennifer H. Weiss
Lisa R. Haddad
Jeffrey I. Klein
Christine C. Sullivan
David S. Kenny
Christopher Y. Okumura
83
SCHEDULE IV
List of all of the attorneys at Kennedy Covington Lobdell & Hickman
which are currently working on matters for the Company or any of its
Subsidiaries.
David H. Jones
Maynard E. Tipps
Alan H. Peterson
William C. Livingston
Raymond E. Owens, Jr.
Felicia A. Washington
Walter D. Fisher, Jr.
Alice Carmichael Richey
Brian P. Evans
Joseph W. Moss, Jr.
Eric S. Rohm
Lisa L. Moorehead
Jonathan J. Nugent
Peter A. Bynum
Michael R. Thornton
Erin E. Lang
James M. Tucker