CMS ENERGY CORPORATION
$300,000,000
GENERAL TERM NOTES(R), SERIES G
DUE FROM NINE MONTHS TO TWENTY-FIVE YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
December , 2001
▇. ▇. ▇▇▇▇▇ & COMPANY
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
CMS Energy Corporation, a Michigan corporation (the "Company"),
confirms its agreement with you (the "Agent," and together with such additional
agents as may be named from time to time, the "Agents") with respect to the
issue and sale by the Company of up to $300,000,000 aggregate principal amount
of its General Term Notes(R), Series G (the "Notes"). The Notes are to be issued
under an Indenture, dated as of January 15, 1994 as supplemented by a First
Supplemental Indenture dated as of January 20, 1994, a Second Supplemental
Indenture dated as of March 19, 1996, a Third Supplemental Indenture dated as of
March 17, 1997, a Fourth Supplemental Indenture dated as of September 17, 1997,
a Fifth Supplemental Indenture dated as of August 26, 1998 and a Sixth
Supplemental Indenture dated as of October 6, 2000 and a Seventh Supplemental
Indenture dated as of December 2001 (such Indenture, as so supplemented, the
"Indenture"), between the Company and JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as trustee (the "Trustee"). The Notes will have the
maturities, annual interest rates, redemption provisions, if any, and other
terms specified in a pricing supplement to the Prospectus referred to below.
Subject to the terms and conditions stated herein, the Company hereby
(i) appoints ▇. ▇. ▇▇▇▇▇ & Company as the agent of the Company for the purpose
of soliciting and receiving offers to purchase the Notes, (ii) reserves the
right, from time to time, to appoint additional agents for the purpose of
soliciting and receiving offers to purchase the Notes, provided that (a) the
Company shall furnish the Agents with reasonable advance notification of the
addition of any such agent, (b) such additional agent shall be acceptable to ▇.
▇. ▇▇▇▇▇ & Company and (c) each such additional agent
(R) Registered servicemark of ▇.▇. ▇▇▇▇▇ & Company
shall be required to become a party to this agreement and undertake the
obligations of an Agent hereunder pursuant to an Additional Agent Appointment
Agreement substantially in the form of Exhibit E hereto, and (iii) agrees that,
whenever the Company determines to sell Notes pursuant to this Agreement, such
Notes shall be sold pursuant to a supplemental agreement between the Company and
▇. ▇. ▇▇▇▇▇ & Company (the "Purchasing Agent") with the Purchasing Agent
purchasing such Notes as principal; the supplemental agreement will also specify
the amount of Notes being sold which have been solicited by each Agent. Each
such supplemental agreement (which shall be either oral, to be confirmed in
writing, or written, and in either case the written confirmation of an oral
agreement or the written supplemental agreement shall be substantially in the
form of Exhibit B hereto and may take the form of an exchange of any standard
form of written telecommunication between the Purchasing Agent and the Company)
is herein referred to as a "Terms Agreement." Any such Terms Agreement may be
signed on behalf of the Company by such persons as are authorized from time to
time by the Board of Directors of the Company to bind the Company in this
regard. Under no circumstances will any Agent be obligated to purchase, or the
Company be obligated to sell, any Notes, unless a Terms Agreement has been
entered into between the Company and the Purchasing Agent with respect to such
Notes.
1. Solicitations by the Agents of Offers To Purchase; Purchases by the
Purchasing Agent of Notes as Principal.
Following the Commencement Date (defined below), the Company shall
notify the Agents from time to time as to the commencement of a period during
which the Notes may be offered and sold by the Agents. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Agents will use their respective reasonable
best efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth in the Prospectus as then amended and supplemented and as
contemplated by the Note Administrative Procedures attached hereto as Exhibit A
("the Procedures").
The Agents are authorized to solicit orders for the Notes only in
denominations of $1,000 or any amount in excess thereof which is a multiple of
$1,000 and, unless otherwise agreed to by the Company and set forth in a Pricing
Supplement, at a purchase price equal to 100% of their principal amount. In
soliciting offers to purchase the Notes hereunder, the Agents are acting solely
as agents for the Company, and not as principals. Each Agent shall communicate
to the Company, orally or in writing, each reasonable offer or indication of
interest received by it to purchase Notes. Each Agent shall have the right to
reject, in its discretion reasonably exercised, any offer received by it to
purchase the Notes, in whole or in part, and any such rejection shall not be
deemed a breach of its agreements contained herein. The Company shall have the
right to accept offers to purchase the Notes and may reject any such offer in
whole or in part. The obligations of the Agents under this Agreement shall be
several and not joint.
Each acceptance by the Company of an offer to purchase Notes shall be
in accordance with the terms of this Agreement and a Terms Agreement which will
provide for the sale of such Notes to, and the purchase and reoffering thereof
by, the Purchasing Agent as principal. The commitment of the Purchasing Agent to
purchase Notes pursuant to any Terms Agreement (and any contemporaneous purchase
of Notes by an Agent from the Purchasing Agent) shall be deemed to
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have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall describe the Notes to be purchased pursuant
thereto by the Purchasing Agent as principal, specify the principal amount of
such Notes, the price to be paid to the Company for such Notes, the rate at
which interest will be paid on the Notes, the date and time of delivery of
payment for such Notes (the "Settlement Date"), whether the Notes provide for a
survivor's option or for optional redemption by the Company and on what terms
and conditions, the place of delivery of the Notes and payment therefor, the
method of payment and any requirements for the delivery of the opinions of
counsel, the certificates from the Company, and the letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, pursuant to Section 6(B)(b). The Agents may reallow any portion of the
commission payable pursuant hereto to dealers or purchasers in connection with
the offer and sale of any Notes.
The Company agrees to pay to the Purchasing Agent, as consideration for
soliciting the sale of the Notes pursuant to a Terms Agreement, a commission in
the form of a discount equal to a percentage not greater than 4%, which
percentage shall be set forth in the applicable Terms Agreement, of the
principal amount of each Note sold by the Company; the Purchasing Agent and the
other Agents will share such commission in such proportion as they may agree.
Delivery of the certificates for Notes pursuant to any Terms Agreement
shall be made as agreed to between the Company and the Purchasing Agent as
specified in the Terms Agreement, not later than the Settlement Date set forth
in such Terms Agreement, against payment of funds to the Company in the net
amount due to the Company for such Notes by the method and in the form specified
in the Terms Agreement.
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures. The
Procedures may be amended only by written agreement of the Company and the
Agents.
(a) The documents required to be delivered by Section 6 of
this Agreement shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, counsel for the Agents, Four Times Square, New York, New York
10036-6522, on such date as may be agreed to by the Company and the Agents (the
"Commencement Date").
2. Other Activities of Agents. The Company acknowledges that nothing in
this Agreement shall prohibit any Agent from (i) acting as broker for the sale
of Notes by customers other than the Company, (ii) soliciting the sale of Notes
through such Agent as broker for a seller, soliciting the sale of Notes to such
Agent as principal and soliciting offers to buy Notes, (iii) purchasing Notes in
the secondary market, and (iv) offering and selling as principal for its own
account Notes which such Agent has purchased.
3. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Agents as of the date hereof, as of the Commencement
Date and as of the times referred to in Section 4(g) hereof (the Commencement
Date and each such time hereinafter sometimes referred to as a "Representation
Date"), that:
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(a) A registration statement (File No. 333- ) in respect of
$300,000,000 aggregate principal amount of debt securities of the Company,
including the Notes, has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the Agents,
including all documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form, and no
other document with respect to such registration statement or other document
incorporated by reference therein has heretofore been filed or transmitted for
filing with the Commission; and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that purpose
has been initiated or, to the Company's knowledge, threatened by the Commission
(any preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"); such registration statement, as
amended at the time it became effective, including all exhibits thereto and the
documents incorporated by reference therein at the time such registration
statement became effective, being hereinafter called the "Registration
Statement"; the prospectus, including any prospectus supplement relating to the
Notes, in the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Notes and the manner of
distribution thereof (a "Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to and include the
Prospectus as amended or supplemented (including the applicable Pricing
Supplement) in relation to the Notes sold pursuant to this Agreement, in the
form in which it is filed, or transmitted for filing, with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 4(a)(ii)
hereof, including any documents incorporated by reference therein as of the date
of such filing or transmission);
(b) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission (or, if an amendment with respect to any
such document was filed, when such amendment was filed), conformed in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and none
of such documents, when they were filed, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in 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
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thereto, when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Agent expressly for use in the
Prospectus as amended or supplemented;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, and the Registration Statement, as of
its effective date, and the Prospectus, as of its filing date, do not, and any
amendments or supplements to the Registration Statement or the Prospectus 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 in which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Agent expressly for use in the Registration
Statement or the Prospectus as amended or supplemented or any such statements in
or omissions from that part of the Registration Statement that constitutes the
Statement of Eligibility on Form T-1 of the Trustee under the Trust Indenture
Act;
(d) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus there has not been any material
adverse change in the business, properties, financial condition or results of
operations of the Company and its consolidated subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, as amended or
supplemented;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Michigan, with
corporate power and corporate authority to own or lease its properties and
conduct its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, in which the failure to so qualify and be in good
standing would materially and adversely affect the business, financial condition
or results of operations of the Company and its consolidated subsidiaries, taken
as a whole;
(f) The filing of the Registration Statement with respect to the Notes
has, and the issuance and sale of the Notes pursuant to this Agreement and any
Terms Agreement have, been duly authorized by the Company, and, when Notes are
authenticated and issued pursuant to the Indenture and delivered against payment
of the consideration as specified in this Agreement and any applicable Terms
Agreement, such Notes will have been duly executed, issued and delivered by the
Company and will constitute valid and legally binding obligations of the
Company, enforceable in accordance
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with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and will be entitled to the
benefits provided by the Indenture; the Indenture has been duly authorized,
executed and delivered by the Company and is duly qualified under the Trust
Indenture Act and the Indenture constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Notes will conform, in all
material respects, to the descriptions thereof contained in the Prospectus as
amended or supplemented to relate to each issuance of Notes;
(g) The issue and sale of the Notes and the compliance by the Company
with all of the provisions of the Notes, the Indenture, this Agreement and any
Terms 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 significant subsidiaries (as defined in Rule 405 as promulgated by
the Commission under the Act) is a party or by which the Company or any of its
significant subsidiaries is bound, or to which any of the property or assets of
the Company or any of its significant subsidiaries is subject, that is material
to the business, properties, financial condition or results of operations of the
Company and its consolidated subsidiaries, taken as a whole, nor will such
action result in any violation of the provisions of the Articles of
Incorporation, as amended, or the By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its significant subsidiaries or any of
their properties; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Company
of the other transactions contemplated by this Agreement or any Terms Agreement
or the Indenture, except such as have been, or will have been prior to the
Commencement Date, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with the
solicitation by any Agent of offers to purchase Notes and with purchases of
Notes by such Agent as principal;
(h) Other than as set forth or contemplated in the Prospectus, as
amended or supplemented, there are no legal or governmental proceedings pending
to which the Company or any of its significant subsidiaries is a party or of
which any property of the Company or any of its significant subsidiaries is the
subject with respect to which there is a reasonable likelihood of one or more
determinations which would individually or in the aggregate have a material
adverse effect on the business, properties, financial condition or results of
operations of the Company and its consolidated subsidiaries, taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are threatened
by governmental authorities or others;
(i) The Company is not subject to regulation under the Investment
Company Act of 1940, as amended;
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(j) The Company will apply the net proceeds from the sale of Notes for
the purpose set forth in the Prospectus under the caption "Use of Proceeds";
(k) To the best of the Company's knowledge, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who
have audited certain financial statements of the Company incorporated by
reference in the Registration Statement and the Prospectus, are independent
public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(l) Immediately after the sale of Notes by the Company hereunder and
under any Terms Agreement, the aggregate amount of Notes which shall have been
issued and sold by the Company hereunder and under any Terms Agreement and of
any debt securities of the Company (other than such Notes) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
(m) Other than as set forth or contemplated in the Prospectus, as
amended or supplemented, the Company owns or possesses all permits, licenses and
other authorizations necessary to own, lease or 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 own or possess any such permit, license or other
authorization would not have a material adverse effect on the business,
properties, financial condition or results of operations of the Company and its
consolidated subsidiaries, taken as a whole, and the Company has not received
any notice of proceedings relating to the revocation or modification of any such
permit, license or other authorization which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, might reasonably be
expected to have a material adverse effect upon the business, properties,
financial condition or results of operations of the Company and its consolidated
subsidiaries, taken as a whole; and
(n) Other than as set forth in the Prospectus as amended or
supplemented, no event or condition exists that constitutes, or with the giving
of notice or lapse of time or both would constitute, a default under any bond,
debenture, note or other evidence of indebtedness for money borrowed by the
Company or any of its significant subsidiaries or under any indenture, mortgage,
loan agreement or instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness for money borrowed by the Company
or any of its significant subsidiaries, if such default would result in such
indebtedness in an aggregate principal amount exceeding $25,000,000 becoming or
being declared due and payable prior to the date on which it would otherwise
become due and payable.
4. Covenants of the Company. The Company agrees with each of the
Agents:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus after the date of any Terms Agreement by the
Purchasing Agent to purchase Notes as principal and prior to the related
Settlement Date prior to having afforded each Agent a reasonable opportunity to
review and comment on it and having reasonably considered any such comments;
provided however, that, if any amendment or supplement to the Registration
Statement or the Prospectus shall be transmitted for filing or filed after the
date of any Terms Agreement between the Company and the Purchasing Agent for the
purchase of Notes and prior to the related Settlement
7
Date, the Purchasing Agent may unilaterally terminate such Terms Agreement and
upon any such termination no Agent shall have any further obligation under such
Terms Agreement; (ii) to prepare, with respect to any Notes to be sold through
or to such Agent pursuant to this Agreement, a Pricing Supplement with respect
to such Notes in a form previously approved by such Agent and to file such
Pricing Supplement pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by such Rule; (iii) to make no amendment
or supplement to the Registration Statement or Prospectus, other than any
Pricing Supplement, at any time prior to having afforded each Agent a reasonable
opportunity to review and promptly comment on it and having reasonably
considered any such comments; (iv) to file timely all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
(all such reports and proxy or information statements which are so filed and
which have not been subsequently superseded shall be referred to as the
"Incorporated Documents") for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Notes, and during such
period to advise such Agent, promptly after the Company receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
has become effective or any amendment or supplement to the Prospectus (other
than any Pricing Supplement that relates to Notes not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Notes, of the suspension of the qualification of
the Notes for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any such prospectus or suspending any such qualification, promptly to
use reasonable efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Agents may
reasonably request to qualify such Notes for offering and sale under the
securities laws of such jurisdictions in the United States as the Agents may
reasonably request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Notes, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation, to file a general consent to service of process in any
jurisdiction, take any action which would subject it to general service of
process in any jurisdiction where it is not now subject or file annual reports
with such jurisdictions or comply with any other requirements deemed by the
Company in its reasonable judgment expressed in writing to the Purchasing Agent
to be unduly burdensome; and to inform the Agents promptly of any notices it may
receive from any state securities agency which limits or will limit any such
qualification or exemption;
(c) To furnish the Agents with copies of the Prospectus as amended or
supplemented, in the form in which it is filed with the Commission pursuant to
Rule 424(b) of the Act, in such quantities as the Agents may from time to time
reasonably request, and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of any Notes and if at such time any
event shall have occurred as a result of which it is necessary to further amend
or supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a
8
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or, if for any other reason during such period it is
necessary to further amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify
each Agent and request the Agents, in their capacity as agents of the Company,
to suspend solicitation of offers to purchase Notes from the Company (and, if so
notified, each Agent shall cease such solicitations as soon as possible, but in
any event not later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to so advise the Agents by telephone (with
confirmation in writing) and to prepare and cause to be filed as soon as
practicable with the Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or supplemented that will correct
such statement or omission or effect such compliance; provided, however, that if
during such period an Agent continues to own Notes purchased from the Company by
such Agent as principal or an Agent is otherwise required to deliver a
prospectus in respect of transactions in the Notes, the Company shall promptly
prepare and file with the Commission such an amendment or supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) of the Act), an
earnings statement of the Company and its consolidated subsidiaries (which need
not be audited) covering a period of at least 12 months beginning after the
later of (i) the effective date of the Registration Statement, (ii) the
effective date of each post- effective amendment to the Registration Statement,
and (iii) the date of each filing by the Company with the Commission of an
Annual Report on Form 10-K that is incorporated by reference in the Registration
Statement, which earning statements shall comply with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158 of the Act);
(e) So long as any Notes are outstanding, to furnish to such Agent,
without charge, copies of its Annual Report on Form 10-K and other financial
reports of the Company furnished or made available to the public generally, and
deliver to such Agent, (i) as soon as they are available, copies of any
Incorporated Documents; and (ii) such additional publicly available information
concerning the business and financial condition of the Company as such Agent may
from time to time reasonably request;
(f) That, from the date of any Terms Agreement with the Purchasing
Agent and continuing to and including the related Settlement Date, the Company
will not, without the prior written consent of each Agent, which consent shall
not be unreasonably withheld, issue or announce the proposed issuance of, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which both mature more than 9 months after such Settlement Date and are
substantially similar to the Notes and which are expected to be distributed on a
retail basis in a manner comparable to that set forth in Exhibit A;
(g) That each execution and delivery by the Company of a Terms
Agreement with the Purchasing Agent shall be deemed to be an affirmation to each
Agent that the representations and warranties of the Company contained in this
Agreement are true and correct as of the date of such Terms Agreement, as though
made at and as of such date, and an undertaking that such representations and
warranties will be true and correct as of the Settlement Date for the Notes
relating to such sale, as though made at and as of such date (except that such
9
representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus, as amended and supplemented, relating to such
Notes);
(h) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than (A) a Current Report pursuant to Section 13 or
15(d) of the Exchange Act on Form 8-K relating exclusively to the previous
issuance of Notes under the Registration Statement or (B) a Quarterly Report on
Form 10-Q under the Exchange Act, unless, in the case of clause (B), the Agents
shall otherwise request), and each time the Company sells Notes to the
Purchasing Agent as principal and the applicable Terms Agreement specifies the
delivery of an opinion or opinions by ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel to the Agent, as a condition to the purchase of Notes pursuant to such
Terms Agreement, at the request of such Agent, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP shall furnish to such Agent its written opinion, dated the date of such
amendment, supplement, incorporation or Settlement Date relating to such sale,
as the case may be, in form reasonably satisfactory to such Agent to the effect
that such Agent may rely on the opinion of such counsel as to the matters
referred to in Section 6(A)(c), which was last furnished to such Agent to the
same extent as though it was dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date or, in lieu of such opinion, an opinion of the same tenor as the
opinion of such counsel as to the matters referred to in Section 6(A)(c), but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date), and reasonably in advance of the time that any
such opinion is to be delivered the Company shall furnish to such counsel such
papers and information as they may reasonably request to enable them to pass on
such matters;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than (A) a Current Report pursuant to Section 13 or
15(d) of the Exchange Act on Form 8-K relating exclusively to the previous
issuance of Notes under the Registration Statement or (B) a Quarterly Report on
Form 10-Q under the Exchange Act, unless, in the case of clause (B), the Agents
shall otherwise request), and each time the Company sells Notes to the
Purchasing Agent as principal and the applicable Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the purchase of
Notes pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent the written opinion or opinions of counsel to
the Company or such other counsel for the Company reasonably satisfactory to
such Agent, dated the date of such amendment, supplement, incorporation or
Settlement Date relating to such sale, as the case may be, in form reasonably
satisfactory to such Agent to the effect that such Agent may rely on the opinion
of such counsel as to the matters referred to in Exhibit C hereof, which was
last furnished to such Agent to the same extent as though it was dated the date
of such letter authorizing reliance (except that the statements in such last
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date or, in lieu of such opinion,
an opinion of the same tenor as the opinion of such counsel as to the matters
referred to in Exhibit C hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date);
10
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement) and each time
that a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus (other than (A) a Current Report pursuant to
Section 13 or 15(d) of the Exchange Act on Form 8-K relating exclusively to the
previous issuance of Notes under the Registration Statement or (B) a Quarterly
Report on Form 10-Q under the Exchange Act, unless, in the case of clause (B),
the Agents shall otherwise request), in either case to set forth financial
information included in or derived from the Company's consolidated financial
statements or accounting records, and each time the Company sells Notes to the
Purchasing Agent as principal and the applicable Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the purchase of
Notes pursuant to such Terms Agreement, the Company shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP forthwith to furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Settlement Date relating to such sale, as the case
may be, in form reasonably satisfactory to such Agent, of the same tenor as the
letter referred to in Exhibit D hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the date
of such letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of
such letter; provided, however, that, with respect to any financial information
or other matter, such letter may reconfirm as true and correct at such date as
though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in
Exhibit D hereof which was last furnished to such Agent; and
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than a Current Report pursuant to Section 13 or 15(d)
of the Exchange Act on Form 8-K relating exclusively to the previous issuance of
Notes under the Registration Statement), and each time the Company sells Notes
to the Purchasing Agent as principal and the applicable Terms Agreement
specifies the delivery of a certificate under this Section 4(k) as a condition
to the purchase of Notes pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a certificate, dated
the date of such supplement, amendment, incorporation or Settlement Date, as the
case may be, in such form and executed by such officers of the Company as shall
be reasonably satisfactory to such Agent (or, in the case of certificates
delivered pursuant to Section 6(B)(b) hereof, by such other employees authorized
by the Board of Directors of the Company to execute and deliver such
certificates), to the effect that the statements contained in the certificate
referred to in Section 6 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 and supplemented to such date) or, in lieu of such
certificate, certificates of the same tenor as the certificates referred to in
said Section 6 but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date.
5. Payment of Expenses. The Company covenants and agrees with each
Agent that the Company will pay or reimburse all expenses incident to this
Agreement, including the following: (i) the reasonable fees and expenses of one
counsel for the Agents in connection with the preparation
11
of a blue sky survey of qualifications and exemptions to offer and sell notes in
the various states in the United States, the District of Colombia, Puerto Rico
and Guam, provided that the Company shall not be obligated to reimburse the
Agents for any legal fees referred to in this clause (i) in excess of $6,500;
(ii) to the extent the Company has agreed to print any of the following, the
cost of printing any Terms Agreement, any Indenture, any blue sky survey and any
other documents in connection with the offering, purchase, sale and delivery of
the Notes; (iii) any filing fees in connection with the qualification of the
Notes for offering and sale under state securities laws as provided in Section
4(b) hereof; (iv) any fees charged by securities rating services for rating the
Notes; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. ("NASD") of the terms of the sale of the
Notes; (vi) the cost of preparing the Notes; (vii) the fees and expenses of any
Trustee and any agent of any Trustee and any transfer or paying agent of the
Company and the fees and disbursements of counsel for any Trustee or such agent
in connection with any Indenture and the Notes; and (viii) taxes (other than
transfer taxes on sales by the Agents or Dealers) in connection with the
issuance and delivery of the Notes; provided that the Company shall not be
obligated to reimburse any Agent for any expenses referred to in this sentence
incurred after the initial offering of Notes except as may be negotiated from
time to time by the Company and the Agents. Except as provided in this Section,
Section 7 and Section 8 hereof, each Agent shall pay all other costs and
expenses it incurs.
6. Conditions to the Obligations of the Agents. (A) The obligations of
each Agent to solicit offers to purchase the Notes pursuant to Section 1 hereof
will, unless waived by such Agent expressly in writing, be subject to the
accuracy of the representations and warranties on the part of the Company made
herein as of the date hereof and as of the Commencement Date, to the accuracy of
the statements of the Company's officers made in each certificate furnished
pursuant to the provisions hereof, to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) (i) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to such Notes shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable time
period prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part of the
Commission shall have been complied with.
(b) The Company shall have furnished to such Agent an opinion or
opinions of the counsel to the Company, dated the Commencement Date,
substantially to the effect set forth in Exhibit C hereto. Any of the opinions
set forth therein may be delivered by another counsel for the Company who is
reasonably satisfactory to the Agents.
(c) Such Agent shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for the Agent, an opinion, dated the Commencement Date, with
respect to the issuance and sale of the Notes, the Indenture, the Registration
Statement, as amended as of the Commencement Date, the Prospectus, as amended
and supplemented as of the Commencement Date, and other related matters as such
Agent may reasonably require; and the Company shall have furnished to such
12
counsel such documents as they may reasonably request for the purpose of
enabling them to pass on such matters.
(d) The Company shall have furnished to such Agent a certificate of the
Company, signed by any of the Chairman of the Board, the President or the Chief
Financial Officer, dated the Commencement Date, to the effect that to the best
of such person's knowledge after reasonable investigation:
(i) this Agreement is substantially in the form
presented to and approved by the Board of Directors of the
Company;
(ii) The representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the date of such certificate with the
same effect as if made on the date of such certificate, and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as
a condition to the obligations of such Agent under this
Agreement;
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus, as amended and supplemented, there has been no
material adverse change in the business, properties, financial
condition or results of operations of the Company and its
consolidated subsidiaries, taken as a whole, other than those
changes reflected in or contemplated by the Prospectus, as
amended and supplemented as of the date of the certificate;
(iv) no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings
for such purposes are pending before or threatened by the
Commission; and
(v) since the date of the Prospectus, as amended and
supplemented, no downgrading shall have occurred in the rating
accorded the Company's debt securities by Standard & Poor's
Corporation ("S&P"), ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), or Fitch Investors Service, L.P. ("Fitch") and
none of S&P, ▇▇▇▇▇'▇, or Fitch has placed on "credit watch" or
"credit review" with negative implications the Company's debt
securities.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished to such Agent a letter or
letters, dated the Commencement Date, in form and substance satisfactory to such
Agent, confirming that they are independent public accountants within the
meaning of the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, as amended and supplemented,
there shall not have been (i) any downgrade or placement on "credit watch" or
"credit review" as described in the certificate referred to in paragraph
(A)(d)(v) of this Section 6 or (ii) any material adverse change in the business,
properties, financial condition or results of operations of the Company and its
consolidated
13
subsidiaries, taken as a whole, the effect of which, in the reasonable judgment
of such Agent after reasonable inquiry, is to impair the marketability of the
Notes.
(g) There shall not have occurred: (i)(A) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
(B) a suspension in trading in any securities of the Company on any exchange or
over-the-counter market, or (C) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities,
if the effect of any such occurrence is such as to impair, in the reasonable
judgment of such Agent, after reasonable inquiry, the marketability of the
Notes; or (ii) the outbreak or material escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such occurrence on the financial markets of the United
States is such as to impair, in the reasonable judgment of such Agent, after
reasonable inquiry, the marketability of the Notes.
(h) The Company shall have furnished to such Agent such further
information, certificates and documents as such Agent may reasonably request
from time to time. Any certificate signed by any officer of the Company and
delivered to such Agent or its counsel and delivered explicitly pursuant to the
terms of this Agreement shall be deemed a representation and a warranty by the
Company to such Agent as to matters covered thereby, as if set forth herein.
(B) The obligations of the Purchasing Agent to purchase Notes pursuant
to any Terms Agreement entered into by it pursuant to Section 1 hereof will be
subject to the accuracy of the representations and warranties on the part of the
Company herein as of the date of such Terms Agreement and as of the Settlement
Date thereunder, to the accuracy of the statements of the Company's officers
made in each certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
contained herein and in such Terms Agreement on its part to be performed and
observed and to the following additional conditions precedent (which cannot be
waived by the Purchasing Agent in any respect without the consent of each other
Agent):
(a) (i) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to such Notes shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable time
period prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part of the
Commission shall have been complied with.
(b) Upon the request of any Agent, such Agent shall have received,
appropriately updated and modified, (i) a certificate of the Company, dated as
of the Settlement Date, to the effect set forth in Section 6(A)(d), (ii) the
opinion or opinions of the counsel to the Company or such other counsel
satisfactory to such Agent, dated as of the Settlement Date, to the effect set
forth in Section 6(A)(b), (iii) the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for the Agent, dated as of the Settlement Date, to the effect
set forth in Section 6(A)(c) and/or (iv) the letter or letters of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, dated as of the Settlement Date, to the effect set forth in
Section 6(A)(e).
(c) The conditions set forth in Sections 6(A)(f) and 6(A)(g) shall have
been satisfied.
14
(d) Prior to the Settlement Date, the Company shall have furnished to
any Agent such further information, certificates and documents as such Agent may
reasonably request.
If any of the conditions specified in this Section 6(B) shall not have been
fulfilled in all material respects when and as provided in this Agreement and in
such Terms Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement and in such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to such Agent
and its counsel, such Terms Agreement and all obligations of any Agent
thereunder may be cancelled at, or at any time prior to, the Settlement Date by
such Agent. Notice of such cancellation shall be given to the Company in writing
or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any amendment or supplement to any of
the foregoing, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Agent for any legal or other expenses reasonably incurred by such Agent in
connection with investigating or defending any such action or claim; provided,
however, that the Company shall not be liable to provide any indemnity hereunder
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, or any amendment or supplement to any of
the foregoing in reliance upon and in conformity with written information
furnished to the Company by any Agent expressly for use in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any amendment or
supplement to any of the foregoing and provided further that the Company will
not be liable to provide any indemnity hereunder to any Agent with respect to
any loss, claim, damage or liability arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission to state a
material fact in any Preliminary Prospectus which had been corrected in the
Prospectus as amended or supplemented if the person asserting any such loss,
claim, liability, charge or damage purchased Notes from an Agent but was not
sent or given a copy of the Prospectus as so amended or supplemented at or prior
to the written confirmation of the sale of such Notes to such person.
(b) Each Agent, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, or any amendment or supplement to any of the
foregoing, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, or any such amendment or
15
supplement to any of the foregoing in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, enclosing a copy of all papers served; but the omission to
so notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall assume the defense of any such litigation
or proceeding, including the employment of counsel and the payment of all
expenses. Such counsel shall be designated in writing by such Agent in the case
of parties indemnified pursuant to Section 7(b) and by the Company in the case
of parties indemnified pursuant to Section 7(a). Any indemnified party shall
have the right to participate in such litigation or proceeding and to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
(x) the indemnifying party and (y) the indemnified party and, in the written
opinion of counsel to such indemnified party, representation of both parties by
the same counsel would be inappropriate due to actual or likely conflicts of
interest between them, in either of which cases the reasonable fees and expenses
of counsel (including disbursements) for such indemnified party shall be
reimbursed by the indemnifying party to the indemnified party. If there is a
conflict as described in clause (ii) above, and the indemnified parties have
participated in the litigation or proceeding utilizing separate counsel whose
fees and expenses have been reimbursed by the indemnifying party and the
indemnified parties, or any of them, are found to be solely liable, such
indemnified parties shall repay to the indemnifying party such fees and expenses
of such separate counsel as the indemnifying party shall have reimbursed. It is
understood that the indemnifying party shall not, in connection with any
litigation or proceeding or related litigation or proceedings in the same
jurisdiction as to which the indemnified parties are entitled to such separate
representation, be liable under this Agreement for the reasonable fees and
out-of-pocket expenses of more than one separate firm (together with not more
than one appropriate local counsel) for all such indemnified parties. Subject to
the next paragraph, all such fees and expenses shall be reimbursed by payment to
the indemnified parties of such reasonable fees and expenses of counsel promptly
after payment thereof by the indemnified parties. An indemnifying party will not
be liable for any settlement or any action or claim effected without its written
consent (which consent will not be unreasonably withheld).
In furtherance of the requirement above that fees and expenses
of any separate counsel for the indemnified parties shall be reasonable, each
Agent and the Company agree that the indemnifying party's obligations to pay
such fees and expenses shall be conditioned upon the following:
16
(1) in case separate counsel is proposed to be retained by the
indemnified parties pursuant to clause (ii) of the preceding paragraph,
the indemnified parties shall in good faith fully consult with the
indemnifying party in advance as to the selection of such counsel; and
(2) reimbursable fees and expenses of such separate counsel
shall be detailed and supported in a manner reasonably acceptable to
the indemnifying party (but nothing herein shall be deemed to require
the furnishing to the indemnifying party of any information, including
without limitation, computer print-outs of lawyers' daily time entries,
to the extent that, in the judgment of such counsel, furnishing such
information might reasonably be expected to result in a waiver of any
attorney-client privilege); and
(3) the Company and such Agent shall cooperate in monitoring
and controlling the fees and expenses of separate counsel for
indemnified parties for which the indemnifying party is liable
hereunder, and the indemnified party shall use every reasonable effort
to cause such separate counsel to minimize the duplication of
activities as between themselves and counsel to the indemnifying party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and an Agent on the
other from the offering of the Notes to which such loss, claim, damage or
liability (or action in respect thereof) relates; if, and only if, contribution
solely on the basis of relative benefits is found to be unavailable, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and such Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Agent on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
such Agent, in each case as set forth in the table on the cover page of the
Prospectus as amended or supplemented to relate to a particular offering of
Notes. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Agent on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. 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 the Agents were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or
17
defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable Notes underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Agents in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Notes and not joint.
Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 7(d), will notify any such party or
parties from whom contribution may be sought, but the omission to so notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Termination.
This Agreement may be terminated at any time either by the Company as
to any of the Agents or by any of the Agents insofar as this Agreement relates
to such Agent upon the giving of written notice of such termination to such
Agent or Agents or to the Company, as the case may be; provided that Section 10
shall survive only for the term provided therein and only with respect to the
parties covered thereby. In the event of termination of this Agreement (other
than with respect to section 10), no terminating party or parties with respect
to which this Agreement is terminated shall have any liability to the other
parties hereto, except as follows: (a) as provided in the first sentence of the
fourth paragraph of Section 1 and Sections 4(c), 5, 7, 9 and 11; (b) (i) if at
the time of termination a Terms Agreement is in effect between the Purchasing
Agent and the Company but the time of delivery to any Agent of the Note or Notes
relating thereto has not occurred or (ii) if the Agent or Agents shall then own
any Note or Notes purchased pursuant to a Terms Agreement, then the Company's
representations and warranties stated in Section 3 and its obligations under the
sixth paragraph of Section 1 and Sections 4(a), 4(b), 4(d), 4(e), 4(f), 4(i),
4(j) and 4(k), with respect to clause (i) above, shall remain in full force and
effect and not be terminated and, with respect to clause (ii) above, shall
remain in full force and effect and not be terminated until the earlier of the
date on which such Notes are resold or the expiration of 90 days
from such termination; provided, however that with respect to clause (ii) above,
the Company may repurchase any such Notes from the Agents at the net price sold
to the Agents on original issuance and thereby terminate its obligations
hereunder; and (c) if the Company shall terminate this Agreement within six
months of the date hereof, other than as a result of a breach hereof by an
Agent, the Company shall be obligated, in addition to any matters covered by
clauses (a) and (b) of this Section 8, to reimburse
18
the Agents for the reasonable out-of-pocket expenses incurred by the Agents in
connection with the execution of this Agreement and the offering and sale of
Notes including, but not limited to, the reasonable fees and expenses of one
counsel for the Agents in connection with the establishment of the program
contemplated hereby.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agents or the Company or any of the officers,
directors or controlling persons referred to in section 7 hereof, and will
survive delivery of and payment for the Notes, and the indemnity agreement
contained in Section 7 hereof shall survive any termination of this Agreement.
10. Grant of License.
(a) Grant of Non-Exclusive License. Upon the terms and conditions
hereinafter set forth, the Purchasing Agent hereby grants to the Company and to
each other Agent (for purposes of this Section 10, each such party is referred
to as a "Licensee") and each Licensee hereby accepts a non-exclusive,
non-transferable (except as provided under paragraph (f) hereunder) license to
use the service marks owned by the Purchasing Agent in respect of the names
"General Term Notes" and "GTN" that it has used in connection with its business
activities, and in which the Purchasing Agent asserts common law interests
(hereinafter referred to collectively as "Marks") in connection with such
Licensee's furtherance of this Agreement, including use of such Marks as part of
such Licensee's marketing materials or other similar uses. No Licensee shall
have any interest in or right to use the Marks except as set forth herein.
(b) Non-Exclusivity of License. Nothing in this Section 10 shall
prevent the Purchasing Agent from granting any other license for the use of the
Marks or from utilizing the Marks or permitting the Marks to be utilized by
others in any manner whatsoever.
(c) Term. The term of this license shall continue in force as to the
Purchasing Agent and (without regard to any other Licensee) (i) with respect to
the Company, for so long as the Notes shall be outstanding and (ii) with respect
to each other Agent, for as long as this Agreement or that Co-Agent Agreement
between the Purchasing Agent and such Agent with respect to the Notes issued
under this Agreement shall be in effect, in each case subject to earlier
termination in accordance with the provisions of either this Agreement or any
such Co-Agent Agreement, as the case may be.
(d) Ownership of Marks. Each Licensee specifically acknowledges the
Purchasing Agent's ownership rights in the Marks. In connection with the use of
the Marks, no Licensee shall in any manner represent that it has any ownership
in the Marks or any registrations thereof and agrees that nothing in this
Agreement shall give such Licensee any ownership interest in any of the Marks
other than the right to use the Marks in accordance with this Section 10.
No Licensee will, during the term of this Section 10 or at any time
thereafter, attack the validity of any of the Marks or the Purchasing Agent's
interests therein, nor will any Licensee attack any application for registration
of any of the Marks, or take any position contrary to that of the Purchasing
Agent in any proceedings pertaining to registration of any of the Marks.
19
Each Licensee shall, whether during or after the term of this
Agreement, execute and deliver to the Purchasing Agent such documents as the
Purchasing Agent may reasonably request to establish or confirm the Purchasing
Agent's ownership interest in the Marks.
(e) Quality Control and Regulatory Compliance. Each Licensee agrees
that it will make no use of the Marks that would tend to reflect adversely upon
the Purchasing Agent, its business reputation, the GTN business and/or market,
or would violate or reflect adversely upon the Purchasing Agent with regard to
the Commission, the NASD or any other governmental authority or securities
association or other regulatory matters. The common law understanding of the
reasonable man standard, given the facts and circumstances then facing such
Licensee, its agents and employees, shall apply when making a determination
pursuant to this paragraph (e). Any proposed use of the Marks outside of the
terms contemplated by this Paragraph shall be submitted to the Purchasing Agent
for its written approval prior to said proposed use.
(f) Assignment of Sublicense by Licensee. This Section 10 and all
rights and duties in and with respect to the Marks hereunder are personal to
each Licensee and shall not, without the prior written consent of the Purchasing
Agent, which consent may not be unreasonably withheld, be assigned, mortgaged,
sublicensed or otherwise encumbered or transferred by such Licensee, except by
operation of law. The Purchasing Agent may assign its rights under this Section
10 to any person or entity without the consent of any Licensee and upon such
assignment the Purchasing Agent shall be relieved from any further liability
under this Agreement. The Purchasing Agent shall furnish prior written notice of
any such assignment to each Licensee.
(g) Unauthorized Use. Each Licensee will notify the Purchasing Agent in
writing of any unauthorized use of any of the Marks which come to such
Licensee's attention.
(h) Indemnification; Infringement.
(I) The Purchasing Agent hereby indemnifies each Licensee and
holds it harmless from and against any loss, liability,
penalty, deficiency, damage or out-of-pocket expense
(including, without limitation, reasonable legal fees and
expenses) which such Licensee may suffer, sustain or become
subject to resulting from, arising out of or caused by any
suit, action or proceeding brought by a third party claiming
or alleging in any manner that the use of any of the Marks by
such Licensee has infringed upon the rights of others;
provided, however, that the Purchasing Agent shall not be
liable or responsible to indemnify a Licensee if the claimed
or alleged infringement results from such Licensee's violation
of this Section 10 or bad faith, willful misfeasance or gross
negligence.
(II) Each Licensee will notify the Purchasing Agent promptly in
writing of any claim that the use of any of the Marks
infringes the rights of others, or of the institution of any
legal actions or suits predicated upon such claimed
infringement, and any such suit or action will be diligently
defended at the sole expense of and under the sole control of
the Purchasing Agent.
(i) Termination.
20
(I) This Section 10 shall remain in effect throughout the term
stated in paragraph (c) above until and unless it is earlier
terminated pursuant to the terms of paragraph (i)(II) below.
(II) This Section 10 may be terminated as to the Purchasing Agent
and any Licensee (without regard to another Licensee) as
follows:
A. By the Purchasing Agent in the event that such
Licensee shall fail to perform any obligation imposed
upon such Licensee by this Section 10 or violate any
terms of this Section 10. The Purchasing Agent will
give such Licensee written notice setting forth the
particulars of any such breach and, unless such
Licensee has cured such breach or is in the process
of curing such breach, this Section 10 will terminate
ten (10) days after receipt by such Licensee of such
written notice. With respect to the Company, nothing
in this paragraph shall be construed to require such
Licensee to retire, redeem or repurchase any Notes
issued by it pursuant to this Distribution Agreement,
or successor Distribution Agreements, otherwise left
outstanding in the event of termination hereunder.
B. With respect to each other Agent (and not as to
the Company), in the event that any Co-Agent
Agreement between the Purchasing Agent and such
Agent/Licensee terminates for any reason, or in the
event of its expiration, this Section 10 shall
immediately and automatically terminate.
(j) Effect of Termination or Expiration. On termination or expiration
of this Section 10 all rights and licenses granted to each Licensee hereunder
shall immediately and automatically terminate. In such event, each Licensee
agrees to discontinue all uses of the Marks and any words confusingly similar
thereto within ten (10) days of such termination or expiration. After such
termination, no Licensee nor any affiliate of any Licensee shall allude in any
public statement or advertisement to the Marks. Each Licensee agrees that it
will at no future time adopt or use, without the Purchasing Agent's prior
written consent, a word or mark which is reasonably likely to be similar to or
confused with any of the Marks. The Purchasing Agent shall retain sole authority
and control over all of the Marks, and all rights in the Marks shall remain the
property of the Purchasing Agent.
(k) Royalty. The license granted herein shall be royalty-free.
(l) Reservation of Rights in the Marks. Rights in the Marks, other than
those specifically granted herein, are reserved by the Purchasing Agent for its
own use. Upon the termination of this Section 10 for any reason whatsoever, all
rights to the Marks shall revert to the Purchasing Agent without the necessity
of any act on its part.
(m) Unenforceable Provisions. If any provision or part of this Section
10 is declared unenforceable by a court of competent jurisdiction, each and
every other provision, or part hereof, shall continue in full force and effect.
21
(n) Waiver. The failure or delay of the Purchasing Agent or any
Licensee to insist upon the performance of any of the terms and conditions of
this Section 10 or to exercise or enforce any right or obligation herein
conferred, shall not be construed to be a waiver of any such terms, conditions,
rights or obligations and either party may, within the time provided by
applicable law, take measures to enforce any or all such rights and obligations.
(o) Remedies. In the event of the breach or default in the terms of
this Section 10 by the Purchasing Agent or any Licensee, the non-breaching or
non-defaulting party shall be entitled to all legal and equitable remedies
provided by law.
The Purchasing Agent and each Licensee agree that damages may be insufficient to
compensate the Purchasing Agent in the event that any of the terms of this
Section 10 are not complied with, and therefore, agree that in such event, the
Purchasing Agent may seek injunctive relief and specific performance of the
terms hereof, in addition to all other rights or remedies, and that to obtain
such an injunction the Purchasing Agent shall not be required to show any actual
damage or to post any bond or other security.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Company, will be mailed or
delivered or sent by facsimile transmission or telegraph and confirmed to it at
CMS Energy Corporation, Fairlane Plaza South, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President,
Chief Financial Officer, and Chief Administrative Officer facsimile transmission
number (▇▇▇) ▇▇▇-▇▇▇▇, and if sent to any of the Agents, will be mailed or
delivered or sent by facsimile transmission or telegraph and confirmed to them
at their respective addresses and facsimile transmission numbers, as follows: if
to ▇. ▇. ▇▇▇▇▇ & Company, to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, facsimile transmission number
(▇▇▇) ▇▇▇-▇▇▇▇. Any party hereto may change its address or facsimile number set
out in this Section 11 by a notice given to the other parties in accordance
herewith.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder. The term "successors"
as used in this Agreement shall not include a purchaser, as such purchaser, of
Notes from any Agent or from any selected dealer acting through such Agent.
13. Applicable Law. This Agreement and each Terms Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed wholly within such
jurisdiction, except that Section 10 of this Agreement will be governed by and
construed in accordance with the laws of the State of Michigan.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
CMS Energy Corporation
By:
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer,
and Chief Administrative
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇. ▇. ▇▇▇▇▇ & COMPANY
By:
--------------------------
Name:
Title:
EXHIBIT A
CMS Energy Corporation
Note Administrative Procedures
December , 2001
The General Term Notes(R), Series G (the "Notes") of CMS Energy
Corporation (the "Company") are being offered on a continuous basis. The Notes
are being offered by ▇. ▇. ▇▇▇▇▇ & Company (the "Purchasing Agent") and such
other agents as may be designated by the Company from time to time
(collectively, the "Agents") pursuant to a Distribution Agreement among the
Company and the Agents dated as of the date hereof (the "Distribution
Agreement") and one or more terms agreements substantially in the form attached
to the Distribution Agreement as Exhibit B (each, a "Terms Agreement"). The
Notes are being resold by the Purchasing Agent (and by any Agent that purchases
them from the Purchasing Agent) to (i) customers of the Agents or (ii) selected
broker-dealers for distribution to their customers pursuant to a Master Selected
Dealers Agreement (a "Dealers Agreement") attached hereto as Schedule I. The
Notes have been registered with the Securities and Exchange Commission (the
"Commission") and will be issued under an Indenture dated as of January 15, 1994
as supplemented by a First Supplemental Indenture dated as of January 20, 1994,
a Second Supplemental Indenture dated as of March 19, 1996, a Third Supplemental
Indenture dated as of March 17, 1997, a Fourth Supplemental Indenture dated as
of September 17, 1997 and a Fifth Supplemental Indenture dated as of August 26,
1998 and a Sixth Supplemental Indenture dated as of November 9, 2000 (the
"Indenture") between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank) (the "Trustee"). Terms used herein but not defined herein
shall have the meanings assigned to them in the Indenture, unless otherwise
required by the context.
The Notes will be issued only in fully registered form without coupons,
and each tranche of the Notes (a "Tranche") will have the annual interest rate,
maturity and other terms set forth in a Pricing Supplement (as defined in the
Distribution Agreement). Each Tranche will be represented by (i) one or more
global certificates (each, a "Global Certificate") without coupons registered in
the name of the nominee of the depositary, The Depository Trust Company, or any
successor depositary selected by the Company ("DTC", which term, as used herein,
includes any successor depositary selected by the Company), representing up to
$300,000,000 principal amount of all such Notes that have the same interest rate
and Stated Maturity or (ii) one or more certificates ("Individual Certificates")
registered in the name of, and delivered to, the Holder thereof or a Person
designated by such Holder. Each Global Certificate representing all or part of a
Tranche will be delivered to the Trustee, as custodian for DTC, and each of the
Notes in such Tranche (a "Book-Entry Note") will be recorded in the book-entry
system maintained by DTC. An owner of a Book-Entry Note will not be entitled to
receive a certificate representing such Note except in the circumstances
described in the Prospectus (as defined in the Distribution Agreement).
--------
(R)Registered servicemark of ▇. ▇. ▇▇▇▇▇ & Company
A-1
Administrative procedures to be followed in connection with, and
certain specific terms of, the offering of Notes for sale by the Agents and the
sale as a result thereof by the Company are stated below. Book-Entry Notes will
be issued in accordance with the administrative procedures set forth in Part I
hereof, and notes represented by Individual Certificates ("Certificated Notes")
will be issued in accordance with the administrative procedures set forth in
Part II hereof. The Company will advise the Purchasing Agent and the Trustee in
writing of those persons handling administrative responsibilities with whom the
Purchasing Agent and the Trustee are to communicate regarding orders to purchase
Notes and the details of their delivery. To the extent the procedures set forth
below conflict with the provisions of the Notes, the Indenture or the
Distribution Agreement, the relevant provisions of the Notes, the Indenture and
the Distribution Agreement shall control. To the extent the Notes, if any, are
sold through the Agents, acting as agents and not as principals, the following
procedures shall be modified as necessary to reflect that sale.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Procedure for Rate The Company and the Purchasing Agent will
Setting and Posting: discuss from time to time the aggregate
principal amount and maturities of, and the
interest rates to be borne by, each Tranche of
Book-Entry Notes that may be purchased by the
Purchasing Agent.
If the Company decides to set aggregate
principal amounts and maturities of, and rates
to be borne by, any Tranche to be purchased by
the Purchasing Agent (the setting of such
amounts, maturities and rates by the Company to
be referred to herein as a "Posting"), or if the
Company decides to change amounts, maturities or
rates previously posted, the Company will
promptly advise the Purchasing Agent of the
amounts, maturities and rates to be posted. The
Purchasing Agent will thereafter promptly advise
the other Agents of the amount, maturities and
rates to be posted.
Offering of Notes: In the event that there is a Posting, each of
the Agents will communicate the aggregate
principal amount and maturities of, and the
interest rates to be borne by, each Tranche that
is the subject of the Posting to each of the
broker-dealers (the "Dealers") that has entered
into a Dealers Agreement with such Agent and,
pursuant to such Dealers Agreement, will solicit
offers to purchase the Notes in the Tranche from
the Dealers.
Purchase of Notes by The Purchasing Agent will, no later than 4 P.M.
A-2
the Purchasing (Eastern time) on the sixth day subsequent to
Agent: the day on which such Posting occurs, or if such
sixth day is not a day on which commercial banks
in New York City are not required or authorized
to be closed (such a day, a "Business Day"), on
the next succeeding Business Day, or on such
later Business Day and time as shall be mutually
agreed upon by the Company and the Agents (any
such day, a "Trade Date"), (i) complete, execute
and deliver to the Company a Terms Agreement
that sets forth, among other things, the amount
of each Tranche that the Purchasing Agent is
offering to purchase (and the amount of such
Notes which have been solicited by each Agent)
or (ii) inform the Company that none of the
Notes of a particular Tranche will be purchased
by the Purchasing Agent. Immediately upon
receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company
will (i) execute and deliver such Terms
Agreement to the Purchasing Agent or (ii) inform
the Purchasing Agent that its offer to purchase
the Notes of a particular Tranche has been
rejected. The Purchasing Agent will immediately
inform the other Agents of the action taken by
the Company.
Preparation of If any offer by the Purchasing Agent to purchase
Pricing Supplement: Notes is accepted by or on behalf of the
Company, the Company, with the approval of each
Agent, will prepare a Pricing Supplement
reflecting the terms of each Tranche and will
arrange to have the Pricing Supplement filed
with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"),
and will supply one copy of such Pricing
Supplement to each Agent and to the Trustee.
Each Agent will deliver, or will cause to be
delivered, copies of the applicable Pricing
Supplement to (i) each of the Dealers that
purchased such Notes pursuant to a Dealers
Agreement in sufficient amounts so that a copy
of the applicable Pricing Supplement can be
delivered to each such Dealer and each purchaser
of Notes from such Dealer and (ii) each
purchaser of Notes from such Agent (other than
such Dealers).
A-3
In each instance that a Pricing Supplement is
prepared, each of the Agents will affix, or will
cause to be affixed, copies of the Pricing
Supplement to the Prospectus prior to their
distribution to purchasers of the Notes from
such Agent (other than Dealers that are
purchasers of Notes from such Agent with a view
to their distribution pursuant to a Dealers
Agreement) and will be responsible for
determining that Dealers purchasing Notes from
such Agent have sufficient copies of the most
current version of the Pricing Supplement and
the related Prospectus to deliver copies of such
Pricing Supplement attached to the Prospectus to
every purchaser of the Notes, as appropriate.
The Agent and the Dealers will destroy any
Pricing Supplements, and any Prospectuses to
which they are attached (other than those
retained for files), that remain in their
possession after Pricing Supplements have been
delivered to the purchasers of Notes.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Book-Entry Note must
accompany or precede any written offer of such
Note, confirmation of the purchase of such Note
and payment for such Note by its purchaser
(other than an Agent or Dealer). Each of the
Agents and the Dealers will deliver a Prospectus
and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by any of
them, along with a confirmation of sale, to each
purchaser on the Business Day immediately
following the Trade Date.
Issuance: On the Settlement Date (as defined in the
Distribution Agreement) for each Tranche sold
pursuant to the Distribution Agreement, the
Company will issue and will cause the Trustee to
authenticate one or more Global Certificates.
Each Global Certificate will be dated and issued
as of the date of its authentication by the
Trustee.
Registration: Each Global Certificate will be registered in
the name of CEDE & CO., as nominee for DTC, on
the Securities Register. The beneficial owner of
a Book-Entry Note (or an indirect participant in
DTC designated by such owner) will designate a
participant
A-4
in DTC (with respect to such Note, the
"Participant") to act as agent for such
beneficial 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 the Participant, a
credit balance indicating that the Participant
is the record holder of the Note. The ownership
interest of the beneficial owner in such Note
will be recorded through the records of the
Participant or through the separate records of
the Participant and an indirect participant in
DTC.
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 Certificates will be denominated in
principal amounts not in excess of $150,000,000.
If a Tranche having an aggregate principal
amount in excess of $150,000,000 would, but for
the preceding sentence, be represented by a
single Global Certificate, then one Global
Certificate will be authenticated and issued to
represent each $150,000,000 principal amount of
such Tranche and an additional Global
Certificate will be authenticated and issued to
represent any remaining principal amount of such
Tranche. In such a case, each of the Global
Securities representing such Book-Entry Notes or
Notes shall be assigned the same CUSIP number.
Settlement: The receipt by the Company of immediately
available funds in payment for a Tranche and the
authentication and issuance of the Global
Certificate(s) representing such Tranche shall
constitute "Settlement" with respect to the
Notes constituting such Tranche. The Settlement
Date with respect to any purchase of Book-Entry
Notes from the Company by the Purchasing Agent
will be a date on or before the fifth Business
Day next succeeding the Trade Date, unless
otherwise agreed by each Agent and the Company
and specified in the applicable Terms Agreement.
Settlement The following Settlement Procedures will be
Procedures: performed by the Company, the Trustee, each
Agent and each of the Dealers with regard to
each Tranche of Book-Entry Notes issued by the
Company on a Trade Date:
A-5
A. The Purchasing Agent will advise the
Company in writing of the following
settlement information:
1. Aggregate principal amount.
2. Stated maturity.
3. Interest rate.
4. Monthly, quarterly or semi-annual
interest payments.
5. Settlement date.
6. Agents' price.
7. Dealers' selling concession.
8. Optional Redemption (if any).
9. Survivor's Option (if any).
B. The Company will advise the Trustee by
telephone (confirmed in writing at any
time on the same date) or electronic
transmission (i) of the information set
forth in Settlement Procedure "A" above,
(ii) that the Notes are Book-Entry Notes
and (iii) confirm the identity of the
Purchasing Agent as purchaser.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, the Agents and Standard
& Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
2. Initial Interest Payment Date for
such Tranche of Notes, number of days
by which such date succeeds the
related Regular Record Date and
amount of interest payable on such
Interest Payment Date.
3. CUSIP number of the Global
Certificate(s) representing such
Tranche of Notes.
4. Whether such Global Certificates(s)
will represent any other Tranche of
Book- Entry Notes (to the extent
known at such time).
A-6
D. The Trustee will complete the Global
Certificate(s) representing such Tranche or
the Company will prepare and deliver to the
Trustee a completed Global Certificate
representing such Tranche.
E. The Trustee will authenticate the Global
Certificate(s) representing such Tranche.
F. DTC will credit such Tranche to the
Trustee's participant account at DTC.
G. The Trustee will enter a Same-Day Funds
Settlement System ("SDFS") deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Tranche to
the Trustee's participant account and credit
the Notes belonging to such Tranche to the
Purchasing Agent's participant account and
(ii) debit the Purchasing Agent's settlement
account and credit the Trustee's settlement
account for an amount equal to the aggregate
principal amount of such Notes, less the
underwriting discount. The entry of such a
deliver order shall constitute a
representation and warranty by the Trustee
to DTC that (i) the Global Certificate(s)
representing such Book-Entry Notes has or
have been issued and authenticated and (ii)
the Trustee is holding such Global
Certificate(s) pursuant to the Letter of
Representations with respect to such Notes
between the Company, the Trustee and DTC.
H. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
Notes received from the Trustee pursuant to
settlement procedure "G" above to the
Purchasing Agent's participant account and
to credit such Notes to the participant
accounts of Participants (including other
Agents) that (A) will hold such Notes as
Dealers that purchased the Notes from the
Purchasing Agent pursuant to a Dealers
Agreement or as representatives of such
Dealers or (B) will hold the Notes on
A-7
behalf of a purchaser of the Notes from the
Purchasing Agent (other than such Dealers),
(ii) in the case of Participants that will
hold the Notes as described in (A) above, to
debit the settlement accounts of such
Participants and credit the settlement
account of the Purchasing Agent for an
amount equal to the aggregate principal
amount of such Notes, less the applicable
selling concession, and, (iii) in the case
of Participants that will hold the Notes as
described in (B) above, to debit the
settlement accounts of such Participants and
credit the settlement account of the
Purchasing Agent for an amount equal to the
aggregate principal amount of such Notes.
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 will credit to an account of the
Company maintained at the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance
with Settlement Procedure "G".
Settlement Settlement Procedures "A" through "J" set forth
Procedures above shall be completed as soon as possible but
Timetable: not later than the respective times (Eastern
time) set forth below, or such later time as may
be agreed upon by the Company and the Purchasing
Agent:
Settlement
Procedure Time
A 4:00 P.M. on the Trade Date
B 5:00 P.M. on the Trade Date
C 2:00 P.M. on the Business
Day before Settlement Date
A-8
D 3:00 P.M. on
Business Day before
Settlement Date
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 5:00 P.M. on Settlement Date
Settlement Procedure "I" is subject to extension
in accordance with the events specified in SDFS
operating procedures in effect on the Settlement
Date.
If Settlement of a Tranche of Book-Entry Notes
is rescheduled or canceled, the Trustee will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. (Eastern time)
on the Business Day immediately preceding the
scheduled Settlement Date.
Trustee Not to Risk Nothing herein shall be deemed to require the
Funds: Trustee to risk or expend its own funds in
connection with any payment to the Company, or
the Purchasing Agent or any Dealer, it being
understood by all parties that payments made by
the Trustee to the Company or the Purchasing
Agent shall be made only to the extent that
funds are provided to such Trustee for such
purpose.
Authenticity of The Company will cause the Trustee to furnish
Signatures: the Agents from time to time with specimen
signatures of the Trustee's officers, employees
or agents who have been authorized by the
Trustee to authenticate Global Certificates, but
the Agents will not have any obligation or
liability to the Company or the Trustee in
respect of the authenticity of the signature of
any officer, employee or agent of the Company or
the Trustee on any Global Certificate.
A-9
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar and transfer agent in connection
with the Certificated Notes.
Procedure for Rate The Company and the Purchasing Agent will
Setting and Posting: discuss from time to time the aggregate
principal amount and maturities of, and the
interest rates to be borne by, each Tranche of
Certificated Notes that may be purchased by the
Purchasing Agent.
If the Company decides to set aggregate
principal amounts and maturities of, and rates
to be borne by, any Tranche to be purchased by
the Purchasing Agent (the setting of such
amounts, maturities and rates to be referred to
herein as "Posting"), or if the Company decides
to change amounts, maturities or rates
previously posted, the Company will promptly
advise the Purchasing Agent of the amounts,
maturities and rates to be posted. The
Purchasing Agent will thereafter promptly advise
the other Agents of the amounts, maturities, and
rates to be posted.
Offering of Notes: In the event that there is a Posting, each of
the Agents will communicate the aggregate
principal amount and maturities of, and the
interest rates to be borne by, each Tranche of
Certificated Notes that is the subject of the
Posting to each of the broker-dealers (the
"Dealers") that have entered into a Dealers
Agreement with such Agent and pursuant to such
Dealers Agreement, will solicit offers to
purchase the Notes in the Tranche from the
Dealers.
Purchase of Notes by The Purchasing Agent will, no later than 4 P.M.
the Purchasing Agent: (Eastern time) on the sixth day subsequent to
the day on which such Posting occurs, or if such
sixth day is not a Business Day, on the next
succeeding Business Day, or on such later day
and time as shall be mutually agreed upon by the
Company and the Agents (any such day a "Trade
Date"), (i) complete, execute and deliver a
Terms Agreement that sets forth, among other
things, the amount of each Tranche that the
Purchasing Agent is offering to purchase (and
the amount of such Notes which have been
solicited by each Agent) or (ii) inform the
Company that none of
A-10
the Notes of a particular Tranche will be
purchased by the Purchasing Agent. Immediately
upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company
will (i) execute and deliver such Terms
Agreement to the Purchasing Agent or (ii) inform
the Purchasing Agent that its offer to purchase
the Notes of a particular Tranche has been
rejected. The Purchasing Agent will immediately
inform the other Agents of the action taken by
the Company.
Preparation of If any offer by the Purchasing Agent to purchase
Pricing Supplement: Notes is accepted by or on behalf of the
Company, the Company, with the approval of each
Agent, will prepare a Pricing Supplement
reflecting the terms of each Tranche and will
arrange to have the Pricing Supplement filed
with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the
Securities Act of 1933, as amended (the "Act")
and will supply one copy of such Pricing
Supplement to each Agent and to the Trustee.
Each Agent will deliver, or will cause to be
delivered, copies of the applicable Pricing
Supplement to (i) each of the Dealers that
purchased such Notes pursuant to a Dealers
Agreement in sufficient amounts so that a copy
of the Pricing Supplement can be delivered to
each such Dealer and each purchaser of Notes
from such Dealer and (ii) each purchaser of
Notes from such Agent (other than such Dealers).
In each instance that a Pricing Supplement is
prepared, each of the Agents will affix, or will
cause to be affixed, copies of the Pricing
Supplement to the Prospectus prior to their
distribution to purchasers of the Notes from
such Agent (other than Dealers that are
purchasing Notes from such Agent with a view to
their distribution pursuant to a Dealers
Agreement) and will be responsible for
determining that Dealers purchasing Notes from
such Agent have sufficient copies of the most
current version of the Pricing Supplement and
the related Prospectus to deliver copies of such
Pricing Supplement attached to the Prospectus to
every purchaser of the Notes, as appropriate.
The Agents and the Dealers will destroy any
Pricing Supplements, and any Prospectus to
A-11
which they are attached (other than those
retained for files), that remain in their
possession after Pricing Supplements have been
delivered to the purchasers of Notes.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Certificated Note must
accompany or precede any written offer of such
Note, confirmation of the purchase of such Note
and payment for such Note by its purchaser
(other than an Agent or Dealer). Each of the
Agents and the Dealers will deliver a Prospectus
and Pricing Supplement as herein described with
respect to each Certificated Note sold by any of
them, along with a confirmation of sale, to each
purchaser on the Business Day immediately
following the Trade Date.
Issuance: On the Settlement Date (as defined in the
Distribution Agreement) for each Tranche sold
pursuant to the Distribution Agreement, the
Company will issue and will cause the Trustee to
authenticate Individual Certificates
representing the Notes in the Tranche. Each
Individual Certificate will be dated and issued
as of the date of its authentication by the
Trustee.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Denominations: The denomination of any Certificated Note will
be a minimum of $1,000 or any amount in excess
thereof that is an integral multiple of $1,000.
Settlement: The Settlement Date with respect to any purchase
of Certificated Notes from the Company by the
Purchasing Agent will be a date on or before the
fifth day that is a Business Day next succeeding
the Trade Date, unless otherwise agreed by each
Agent and the Company and specified in the
applicable Terms Agreement. The Company will
instruct the Trustee to effect delivery of
Certificated Notes no later than 3:00 P.M.,
Eastern time, on the Settlement Date to the
Purchasing Agent.
Settlement The following Settlement Procedures will be
Procedures: performed by the Company, the Trustee, each
Agent
A-12
and each of the Dealers with regard to each
Tranche of Certificated Notes issued by the
Company on a Trade Date:
A. The Purchasing Agent will advise the Company
in writing of the following settlement
information:
1. Aggregate principal amount.
2. Stated maturity.
3. Interest rate.
4. Monthly, quarterly or semi-annual
interest payments.
5. Settlement date.
6. Agents' price.
7. Dealers' selling concession.
8. Optional Redemption (if any).
9. Survivor's Option (if any).
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time
on the same date) or electronic transmission
(i) of the information set forth in
Settlement Procedure "A" above, (ii) that
the Notes are Certificated Notes and (iii)
confirm the identity of the Purchasing Agent
as purchaser.
C. The Trustee will complete the Individual
Certificates representing such Tranche or
the Company will prepare and deliver to the
Trustee completed Individual Certificates
representing such Tranche.
D. The Trustee will authenticate the Individual
Certificates representing such Tranche.
E. Delivery of each Certificated Note by the
Trustee will be made when the Trustee
receives notice from the Company that it has
received payment from the Purchasing Agent
of an amount in immediately available funds
equal to the face value of such Certificated
Note less such Agent's discount.
Settlement Settlement Procedures "A" through "E" set forth
A-13
Procedures above shall be completed as soon as possible but
Timetable: not later than the respective times (Eastern
time) set forth below, or such later time as may
be agreed upon by the Company and the purchasing
Agent(s):
Settlement
Procedure Time
A-B 3:00 P.M. on Business Day
before Settlement Date
C-D 2:15 P.M. on Settlement Date
E 3:00 P.M. on Settlement Date
Trustee Not to Risk Nothing herein shall be deemed to require the
Funds: Trustee to risk or expend its own funds in
connection with any payment to the Company, or
the Purchasing Agent or any Dealer, it being
understood by all parties that payments made by
the Trustee to the Company or the Purchasing
Agent shall be made only to the extent that
funds are provided to such Trustee for such
purpose.
Authenticity of The Company will cause the Trustee to furnish
Signatures: the Agents from time to time with specimen
signatures of the Trustee's officers, employees
or agents who have been authorized by the
Trustee to authenticate Certificated Notes, but
the Agents will not have any obligation or
liability to the Company or the Trustee in
respect of the authenticity of the signature of
any officer, employee or agent of the Company or
the Trustee on any Certificated Note.
A-14
SCHEDULE I
[▇. ▇. ▇▇▇▇▇ & Company Letterhead]
Form of Master Selected Dealers Agreement
[Name of Dealer]
[▇▇▇▇▇▇'s Address]
Dear Sirs:
In connection with public offerings of securities after the
date hereof for which we are acting as manager of an underwriting syndicate or
are otherwise responsible for the distribution of securities to the public by
means of an offering of securities for sale to selected dealers, you may be
offered the right as such a selected dealer to purchase as principal a portion
of such securities. This will confirm our mutual agreement as to the general
terms and conditions applicable to your participation in any such selected
dealer group organized by us as follows.
1. Applicability of this Agreement. The terms and conditions
of this Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933, as amended (the "Securities Act"), or exempt from registration
thereunder (other than a public offering of Securities effected wholly outside
the United States of America), wherein ▇. ▇. ▇▇▇▇▇ & Company (acting for its own
account or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "Offering". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering: Acceptance and Purchases. Any
Offering will be subject to delivery of the Securities and their acceptance by
us and any other Underwriters, may be subject to the approval of all legal
matters by counsel and the satisfaction of other conditions, and may be made on
the basis of reservation of Securities or an allotment against subscription. We
will advise you by telegram, telex or other form of written communication
("Written Communication", which term, in the case of any Offering described in
Section 3(a) or 3(b) hereof, may include a prospectus or offering circular) of
the particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof)
A-15
of any Offering in which you are invited to participate. To the extent such
supplementary terms and conditions are inconsistent with any provision herein,
such terms and conditions shall supersede any such provision. Unless otherwise
indicated in any such Written Communication, acceptances and other
communications by you with respect to an Offering should be sent to ▇. ▇. ▇▇▇▇▇
& Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇). We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by you
shall be paid for on such date as we shall determine, on one day's prior notice
to you, by certified or official bank check, in an amount equal to the Public
Offering Price (as hereinafter defined) or, if we shall so advise you, at such
Public Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of ▇. ▇. ▇▇▇▇▇ & Company, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, against delivery
of the Securities. If Securities are purchased and paid for at such Public
Offering Price, such Concession will be paid after the termination of the
provisions of Section 3(c) hereof with respect to such Securities.
Notwithstanding the foregoing, unless notified otherwise by us, payment for and
delivery of Securities purchased by you shall be made through the facilities of
The Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the Securities Act ("Registered Offering"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the applicable rules and
regulations of the Securities and Exchange Commission thereunder. You represent
and warrant that you are familiar with Rule 15c2-8 under the Exchange Act
relating to the distribution of preliminary and final prospectuses and agree
that you will comply therewith. You agree to make a record of your distribution
of each preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of
any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing
A-16
the use and distribution of offering circular by brokers or dealers. You agree
that in purchasing Securities pursuant to an offering circular you will rely
upon no statements whatsoever, written or oral, other than the statements in the
final offering circular delivered to you by us. You will not be authorized by
the issuer or other seller of Securities offered pursuant to an offering
circular or by any Underwriter to give any information or to make any
representation not contained in the offering circular in connection with the
sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering
of Securities, we will inform you by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public only at the Public Offering Price, except that if a Reallowance is in
effect, a reallowance from the Public Offering Price not in excess of such
Reallowance may be allowed as consideration for services rendered in connection
with distribution to dealers who are actually engaged in the investment banking
or securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the conditions with
respect to foreign banks, dealers and institutions set forth in Section 3(e)
hereof.
(d) Over-allotment; Stabilization: Unsold Allotments. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of such
Offering, you agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker's commissions or dealer's mark-up, if any, paid in
connection with such purchase or contract to purchase.
A-17
(e) NASD. You represent and warrant that you are actually
engaged in the investment banking or securities business and either a member in
good standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which agrees
to make no sales within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein, and in making other
sales to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of section 24 of Article
II(c) of the NASD's Rules of Fair Practice and (2) if you are a non-NASD member
broker or dealer in a foreign country, you will also comply (a) as though you
were an NASD member, with the provision of sections 8 and 36 thereof and (b)
with section 25 thereof as that section applies to a non-NASD member broker or
dealer in a foreign country.
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling concession, discount or other
allowance is granted to you, clauses (1) and (2) of the preceding paragraph will
be applicable.
(f) Relationship among Underwriters and Selected Dealers. We
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. You are not authorized to
act as agent for us, any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Neither we nor any
Underwriter shall be under any obligation to you except for obligations assumed
hereby or in any Written Communication from us in connection with any Offering.
Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
A-18
(g) Blue Sky Laws. Upon application to us, we shall inform you
as to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This Agreement
shall continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section l hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions
set forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from us to you in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of [New York]
[Michigan].
Please confirm by signing and returning to us the enclosed
copy of this Agreement that your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement (as
supplemented and amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in
A-19
Section 3(a) and 3(b) hereof, acknowledgment that you have requested and
received from us sufficient copies of the final prospectus or offering circular,
as the case may be, with respect to such Offering in order to comply with your
undertakings in Section 3(a) or 3(b) hereof.
Very truly yours,
▇. ▇. ▇▇▇▇▇ & Company
By:
-------------------------------
Name:
Title:
CONFIRMED: , 19
------------------------------------------------- ---------
--------------------------------------------------------------------------
(Name of Dealer)
By:
-----------------------------------------------------------------------
(Sign name and print title)
A-20
EXHIBIT B
NAME OF ISSUER
General Term Notes(R), Series G
Due From Nine Months to Twenty-Five Years from Date of Issue
TERMS AGREEMENT
, 200
CMS Energy Corporation
Fairlane Plaza South
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Subject in all respects to the terms and conditions of the Distribution
Agreement dated October , 2000, among ▇. ▇. ▇▇▇▇▇ & Company, and you
(the "Agreement"), the undersigned agrees to purchase the following Notes of CMS
Energy Corporation:
CUSIP:
Aggregate Principal Amount:
Interest Rate:
Interest Payment Date(s) (Monthly or Otherwise):
Stated Maturity Date:
Price to Public: % of Principal Amount
----------
Purchase Price: % of Principal Amount
----------
Selling Concession:
Settlement Date and Time:
Survivor's Option:
-------------------
(R)Registered servicemark of ▇. ▇. ▇▇▇▇▇ & Company
B-1
Optional Redemption, if any:
Initial Redemption Date:
Redemption Price: initially % of Principal Amount and declining by
% of the Principal Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is 100% of the Principal
Amount.
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
Principal Amount
of Notes Solicited
Agents by Such Agent
------ -----------------
▇. ▇. ▇▇▇▇▇ & Company......................................... $
-----------------
........................................ $
---------------------- -----------------
Total.......................................$
=================
Modification, if any, in the requirements to deliver the documents specified in
Section 6(B)(b) of the Agreement:
Other Provisions:
▇.▇. ▇▇▇▇▇ & COMPANY
By:
----------------------------
Title:
----------------------
Accepted:
CMS ENERGY CORPORATION
By:
------------------------------
Title:
------------------------
B-2
EXHIBIT C
SUGGESTED FORMS OF OPINIONS OF COUNSEL TO
THE COMPANY
The opinion or opinions of counsel to the Company, to be delivered
pursuant to Section 4(i), 6(A)(b) or 6(B) of the Distribution Agreement, shall
be to the effect and subject to the qualifications and limitations set forth
below. In addition, any such opinion shall cover such other matters as the
Agents may reasonably require. All references to the "Registration Statement"
shall be to the Registration Statement as amended as of the date of such opinion
or opinions, and all references to the "Prospectus" shall be to the Prospectus
as amended and supplemented as of the date of such opinion or opinions, in each
case except as expressly provided therein.
C-1
[Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.,
Assistant General Counsel to CMS Energy Corporation]
December , 2001
▇.▇. ▇▇▇▇▇ & Company
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: CMS Energy Corporation
General Term Notes(R), Series G
Ladies and Gentlemen:
I address this opinion to you in connection with the Distribution
Agreement dated December , 2001 (the "Distribution Agreement") between you and
CMS Energy Corporation, a Michigan corporation (the "Company"), pursuant to
which the Company has engaged you as its agent[s] to, among other things,
solicit and receive offers to purchase from time to time up to $300,000,000
aggregate principal amount of the Company's General Term Notes(R), Series G (the
"Notes"), on the terms and subject to the conditions set forth in the
Distribution Agreement. The Notes will be issued under the Indenture dated as of
January 15, 1994 between the Company and JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as trustee, as amended and supplemented by certain
supplemental indentures thereto including the Seventh Supplemental Indenture
dated as of December , 2001 relating to the Notes (the Indenture as so amended
and supplemented is hereinafter referred to as the "Indenture"). Capitalized
terms not defined herein have the meanings specified in the Distribution
Agreement.
In rendering the opinions expressed below, I or attorneys acting under
my supervision, have examined originals, or copies of originals certified to my
satisfaction, of such agreements, documents, certificates and other statements
of governmental officials and corporate officers and such other papers and
evidence as I or we have deemed relevant and necessary as a basis for such
opinions. We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons, and the conformity with the original documents of any copies thereof
submitted to us for my examination. We have further assumed without
investigation that each document submitted to us for review and relied upon for
this opinion is accurate and complete as of the date given to the date hereof.
We have also relied upon representations and warranties as to factual matters
contained in and made pursuant to the Distribution Agreement.
-------------------
(R)Registered Servicemark of ▇.▇. ▇▇▇▇▇ & Company
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Whenever the opinion herein with respect to the existence or absence of
facts is indicated to be based on my knowledge, it is intended to signify that
during the course of my representation of the Company or that of the attorneys
acting under my direct supervision who have an active involvement in the
transaction contemplated by the Distribution Agreement, no information has come
to our attention which would give us actual knowledge of the existence or
absence of such facts contrary to such opinion or statement.
Pursuant to the requirements of Section 6(A)(b) of the Distribution
Agreement, this will advise you that in the opinion of the undersigned:
1. The Company is duly incorporated and validly existing and in good
standing under the laws of the State of Michigan and has the corporate
power and corporate authority to own or lease its properties and
conduct its business as described in the Prospectus as amended or
supplemented.
2. The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
State of the United States in which its business requires it to be
qualified except where the failure to so qualify could not reasonably
be expected to materially and adversely affect the business, financial
condition or results of operations of the Company and its consolidated
subsidiaries, taken as a whole.
3. Each significant subsidiary (as defined in the Distribution Agreement)
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and corporate authority to own or
lease its properties and conduct its business as described in the
Prospectus, as amended or supplemented, and has been duly qualified as
a foreign corporation for the transaction of business in and is in good
standing under the laws of each other jurisdiction in which it owns or
leases property, or conducts any business, in which the failure to so
qualify and be in good standing would materially and adversely affect
the business, financial condition or results of operations of the
Company and its consolidated subsidiaries, taken as a whole.
4. The issuance and sale of the Notes and the execution, delivery and
performance by the Company of the Notes, the Indenture, the
Distribution Agreement and any Terms Agreement with respect to a series
of the Notes have been duly authorized by the Company; and the
Distribution Agreement has been duly authorized, executed and delivered
by the Company.
5. The Indenture has been duly authorized, qualified under the Trust
Indenture Act, executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and by the effect of general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
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6. The Notes have been duly authorized, and, when the particular terms of
any Notes to be issued have been established in accordance with the
provisions of the Indenture and such Notes have been duly executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Purchasing Agent in accordance with
the terms of the Distribution Agreement and the applicable Terms
Agreement, such Notes will be entitled to the benefits provided by the
Indenture and will constitute legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their
respective terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws of general applicability relating to or affecting
the enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
7. The Registration Statement is effective under the Act and, to the best
of my knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act, and no
proceedings for such purpose have been initiated or threatened by the
Commission.
8. The Registration Statement, as of its effective date, and the
Prospectus and each amendment or supplement thereto as of its issue
date (in each case, other than the operating statistics, the financial
statements and the notes thereto, the financial schedules, and any
other financial and statistical data included or incorporated by
reference therein, as to which I express no opinion), complied as to
form in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder.
9. Each of the documents incorporated by reference in the Registration
Statement or the Prospectus at the time they were filed or last amended
(other than the financial statements and the notes thereto, the
financial schedules, and any other financial or statistical data
included or incorporated by reference therein, as to which I express no
opinion) complied as to form in all material respects with the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder.
10. The Notes and the Indenture conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus; and the information in the Registration Statement and the
Prospectus under the caption "Description of General Term Notes(R)," to
the extent that it constitutes summaries of the terms of the Notes or
the Indenture, is accurate in all material respects.
11. The descriptions in the Registration Statement and the Prospectus and
each amendment or supplement thereto of franchises, regulations,
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required to
be shown and I do not know of any legal or governmental proceedings
required to be described in the Registration Statement or the
Prospectus or any amendment or supplement thereto that are not so
described (or the descriptions of which are not incorporated by
reference) or of any contracts or documents of a character required to
be described in the
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Registration Statement or the Prospectus or any amendment or supplement
thereto or to be filed as exhibits to the Registration Statement or any
amendment thereto that are not so described (or the descriptions of
which are not incorporated by reference) or so filed.
12. The issuance and sale of the Notes and the execution, delivery and
performance by the Company of the Notes, the Indenture and the
Distribution Agreement and the consummation of the transactions
contemplated therein, to the best of my knowledge, will not 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
material agreement or instrument to which the Company is a party or by
which the Company is bound, and which breach or default would have a
material adverse effect on the business, financial condition or results
of operations of the Company and its consolidated subsidiaries, taken
as a whole.
13. No consent, approval or authorization of, or registration, filing or
declaration with, any federal or state governmental authority or other
regulatory agency (other than those which have been obtained under the
Act and the Trust Indenture Act and those which may be required under
the securities or blue sky laws of various jurisdiction, as to which I
express no opinion) is required for the valid authorization, issuance,
sale and delivery of the Notes as contemplated in the Distribution
Agreement.
14. The Company timely filed with the Commission the appropriate exemption
statement pursuant to Rule 2 under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), and accordingly, is exempt
from provisions of the 1935 Act, except for Section 9(a)(2) thereof,
subject to the right of the Commission acting pursuant to Rule 6 under
the 1935 Act to revoke the exemption by notification to the Company. To
my knowledge, the Company has received no such notification from the
Commission.
15. The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
16. In any action or proceeding arising out of or relating to the
Indenture, the Notes, the Distribution Agreement and any Terms
Agreement or any other related document to which the Company is, or is
to be, a party in any Michigan state court or any Federal court
sitting in the State of Michigan, such court would recognize and give
effect to the provisions of the Indenture, the Notes and the
Distribution Agreement or any other related document, as the case may
be, wherein the parties thereto agree that the Indenture, the Notes,
the Distribution Agreement and any Terms Agreement or any other related
document, as the case may be, shall be governed by, and construed in
accordance with, the laws of the State of New York, except in the case
of those provisions set forth in the Indenture, the Notes, the
Distribution Agreement and any Terms Agreement or any other related
document the enforcement of which would contravene a fundamental policy
of the State of Michigan. In the course of my review of the Indenture,
the Notes, the Distribution Agreement and any Terms Agreement or any
other related document, nothing has come to my attention to indicate
that any of such provisions would do so.
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17. Nothing has come to my attention which would lead me to believe that
the Registration Statement or any amendment thereto (except for the
operating statistics, financial statements and the notes thereto, the
financial schedules, and any other financial and statistical data
included or incorporated by reference therein, as to which I express no
opinion), when it became effective, contained any 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 or
that the Prospectus, as amended or supplemented, or modified by the
filing of a document incorporated by reference therein (except as
aforesaid), on its issue date and on the date hereof contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
I am a member of the State Bar of Michigan and I do not express any
opinion herein concerning any law other than the applicable federal laws of the
United States and the laws of the States of Michigan and New York. Insofar as
the opinions expressed herein in paragraphs 5 and 6 relate to or are dependent
upon matters governed by the laws of the State of New York, I have relied upon
the opinion, dated the date hereof, rendered by ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, which opinion is in form satisfactory to me.
The opinion letter is furnished by me, as counsel to the Company,
solely for the benefit of you, the addressees of this letter, in connection with
the transaction referred to herein and may be relied upon only by you in such
capacity. I consent to the reliance on this opinion of ▇▇▇▇▇▇▇, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP in its opinion to you of even date herewith pursuant to the
Distribution Agreement. No one else may rely upon this opinion letter, nor may
you release it or quote from it, nor may you rely upon it in any other capacity
or employ it in any transaction other than the transaction discussed herein,
without my prior written consent.
Very truly yours,
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EXHIBIT D
FORM OF LETTER OF
INDEPENDENT ACCOUNTANTS TO THE COMPANY
All references to the "Registration Statement" shall be to the
Registration Statement, as amended as of the date of such letter, and all
references to the "Prospectus" shall be to the prospectus as amended or
supplemented as of the date of such letter.
(a) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(b) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial information examined) by them
and included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respect with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Agents the ("Representatives");
(c) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company of the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(d) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
D-1
(i) the unaudited condensed consolidated statements
of income, consolidated balance sheets, common stockholders'
equity and consolidated statements of cash flows included or
incorporated by reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Registration
Statement and Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles on a
basis substantially consistent with that of the audited
consolidated financial statements of the Company which have
been incorporated by reference in the Registration Statement
and Prospectus;
(ii) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived;
(iii) the unaudited financial statements which were
not included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in (a)
and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (b)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(iv) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(v) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus, and sales of
capital stock to employee benefit plans of the Company) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or net assets or other items specified by the
Representatives, or any decrease in common stockholders'
equity, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown
in the latest balance sheet included or incorporated by
reference in the Registration Statement and Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
D-2
(vi) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (e)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(e) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (3) and (4) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
D-3
EXHIBIT E
CMS ENERGY CORPORATION
GENERAL TERM NOTES(R), SERIES G
, 2001
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▇. ▇. ▇▇▇▇▇ & COMPANY
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Insert Name Agent]
[Insert Name New Agent]
Dear Sirs:
Reference is hereby made to the Distribution Agreement dated December ,
2001 (the "Distribution Agreement"), a copy of which has previously been
delivered to you, between CMS Energy Corporation, a Michigan corporation (the
"Company"), and [each of] ▇. ▇. ▇▇▇▇▇ & Company and [Insert Name Agent], with
respect to the issue and sale by the Company of its General Term Notes(R),
Series G (the "Notes"). Capitalized terms used herein without definition shall
have the meanings assigned to them in the Distribution Agreement.
Subject to the terms and conditions set forth in the Distribution
Agreement, the Company hereby appoints [Insert Name New Agent] as agent of the
Company for the purpose of soliciting and receiving offers to purchase the
Notes, it being understood by all parties that, whenever the Company determines
to sell Notes pursuant to the Distribution Agreement, such Notes shall be sold
pursuant to a Terms Agreement between the Company and ▇. ▇. ▇▇▇▇▇ & Company, as
Purchasing Agent, purchasing such Notes as principal. In connection with such
appointment, [Insert Name New Agent] is hereby entitled to the benefits and
subject to the duties of an Agent under the terms and conditions of the
Distribution Agreement (including the Procedures), which terms and conditions
are hereby incorporated by reference as fully as if set forth herein. In
connection with such appointment, [Insert Name New Agent] shall receive as of
the date hereof: [To be agreed upon by the Company and the New Agent: (1) an
opinion or opinions of counsel dated the date hereof to the effect set forth in
Section 6(A)(b) of the Distribution Agreement, (2) an officer's certificate of
the Company, dated the date hereof, to the effect set forth in Section 6(A)(d)
of the Distribution Agreement, (3) an opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP dated the date hereof to the effect set forth in Section 6(A)(c) of the
Distribution Agreement, (4) a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and
substance satisfactory to [Insert Name New
-------------------
(R)Registered servicemark of ▇. ▇. ▇▇▇▇▇ & Company
E-1
Agent] as to certain financial and statistical information included in or
incorporated by reference in the Registration Statement or Prospectus, as
amended or supplemented to the date hereof, and (5) other items reasonably
requested], it being understood that [Insert Name New Agent] shall pay all costs
and expenses incurred by it in connection with obtaining such documents.
Any communication to the Agents hereunder or under the Distribution
Agreement will be made in accordance with Section 11 of the Distribution
Agreement, and will be mailed or delivered or sent by facsimile transmission or
telegraph and confirmed to them at their respective addresses and facsimile
transmission numbers as follows: (a) if to ▇. ▇. ▇▇▇▇▇ & Company, to it at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇
▇. ▇▇▇▇, facsimile transmission number (▇▇▇) ▇▇▇-▇▇▇▇, (b) if to [Insert Name
Agent], to it at [Insert Address Agent], attention: [Insert Name], facsimile
transmission number [Insert Number] and (c) if to [Insert Name New Agent] to it
at [Insert Address New Agent], attention: [Insert Name], facsimile transmission
number [Insert New Agent Number].
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
CMS Energy Corporation
By:
----------------------------
Title: Executive Vice President
Chief Financial Officer,
and Chief Administrative
Officer
E-2
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
▇. ▇. ▇▇▇▇▇ & COMPANY
By:
------------------------
Title:
---------------------
[INSERT NAME AGENT]
By:
------------------------
Title:
--------------------
[INSERT NAME NEW AGENT]
By:
------------------------
Title:
--------------------
E-3