EXHIBIT 1.1
The Goldman Sachs Group, Inc.
__% Notes due 2009
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Underwriting Agreement
May __, 1999
Goldman, Sachs & Co.,
Banc One Capital Markets, Inc.,
Blaylock & Partners, L.P.,
BT Alex. Brown Incorporated,
Chase Securities Inc.,
Credit Suisse First Boston Corporation,
Lehman Brothers Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated,
NationsBanc Montgomery Securities LLC,
PaineWebber Incorporated,
Prudential Securities Incorporated,
Salomon Smith Barney Inc.,
The Williams Capital Group, L.P.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
The Goldman Sachs Group, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of $1,500,000,000 principal amount of the Notes specified above (the
"Securities").
The Company succeeded to the business of The Goldman Sachs Group, L.P., a
Delaware limited partnership ("Group"), in a series of transactions described in
the Prospectuses (as defined in Section 1(a) hereof) under the captions "Certain
Relationships and Related Transactions--Incorporation and Related
Transactions--Incorporation Transactions". Those transactions, which are
hereinafter referred to as the "Incorporation Transactions", were consummated on
May 7, 1999. For purposes of the representations and warranties set forth in
Section 1(d) and the conditions set forth in Section 8(g),
references to the Company with respect to any time before the consummation of
the Incorporation Transactions shall be deemed to be references to Group.
The Registration Statement (as defined in Section 1) contains two forms of
prospectus, one that relates to the initial distribution of the Securities by
the Underwriters in an underwritten public offering and another that relates to
offers and sales of Securities by Goldman, Sachs & Co. or any other affiliates
of the Company in secondary transactions. The Underwriters acknowledge and agree
that the Secondary Transactions Prospectus (as defined in Section 1) and any
amendment or supplement thereto will not be used by any Underwriter except
Goldman, Sachs & Co., and Goldman, Sachs & Co. and such other affiliates
acknowledge and agree that they will use the Initial Offering Prospectus (as
defined in Section 1) and any amendment or supplement thereto only in connection
with offers and sales of the kind contemplated therein to be made pursuant to
such prospectus and will use the Secondary Transactions Prospectus and any
amendment or supplement thereto only in connection with offers and sales of the
kind contemplated therein to be made pursuant to such prospectus. The Company
acknowledges and agrees that Goldman, Sachs & Co. are under no obligation to
commence any offers or sales of the kind contemplated by the Secondary
Transactions Prospectus or any amendment or supplement thereto and, if
commenced, Goldman, Sachs & Co. may discontinue such offers and sales at any
time without providing any notice to the Company. The term "Underwriter"
includes Goldman, Sachs & Co., whether acting in its capacity as an Underwriter
or acting as contemplated by the Secondary Transactions Prospectus.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-75213) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became or will
become effective upon filing, no other document with respect to the
Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto but excluding Form T-1 and including the information
contained in the two forms of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Sections 5(a) and
6(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared effective,
each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; and the two forms of
final prospectus relating to the initial distribution of the Securities by
the Underwriters in an underwritten public offering and to offers and
sales of Securities by Goldman, Sachs & Co. or any other affiliates of the
Company in
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secondary transactions, each in the form first filed pursuant to Rule
424(b) under the Act, are hereinafter called the "Initial Offering
Prospectus" and the "Secondary Transactions Prospectus", respectively, and
each is also called, individually, a "Prospectus" and, collectively, the
"Prospectuses");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and each Prospectus and any
further amendments or supplements to the Registration Statement or any
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to any Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(d) Neither the Company nor any of its subsidiaries that are listed
or that are required to be listed pursuant to the requirements of Form S-1
in Exhibit 21 to the Registration Statement (the "Significant
Subsidiaries") has sustained since the date of the latest audited
financial statements included in the Prospectuses any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectuses, there has not been any change in the partners' capital or
capital stock, as applicable, or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or
partners' capital, as applicable, or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectuses;
(e) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectuses
or such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions
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as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectuses, 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 so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; each
corporate subsidiary of the Company that is a Significant Subsidiary (a
"Corporate Significant Subsidiary"), each partnership subsidiary of the
Company in which the Company or one of its subsidiaries is a general
partner and that is a Significant Subsidiary (a "Partnership Significant
Subsidiary"), each unlimited liability company subsidiary of the Company
that is a Significant Subsidiary (a "ULLC Significant Subsidiary") and
each limited liability company in which the Company or one of its
subsidiaries is a managing member that is a Significant Subsidiary (an
"LLC Significant Subsidiary") has been duly incorporated or organized, as
the case may be, and is validly existing as a corporation, partnership,
unlimited liability company or limited liability company, as the case may
be, in good standing under the laws of its jurisdiction of incorporation
or organization, as the case may be, with the power (corporate,
partnership, unlimited liability company or limited liability company, as
the case may be) and authority to own its properties and conduct its
business as described in the Prospectuses; and the Incorporation
Transactions have been consummated and the Company has succeeded to the
business of Group as described in the Prospectuses;
(g) The Company has an authorized capitalization as set forth in the
Prospectuses, all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of capital stock of each
Corporate Significant Subsidiary, all of the issued shares of each ULLC
Significant Subsidiary and all of the membership interests in each LLC
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and, in the case of any Corporate Significant Subsidiaries
and LLC Significant Subsidiaries, are non-assessable and (except for (A)
directors' qualifying shares and (B) interests in Goldman Sachs Holdings
L.L.C.) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims; and all of the partnership
interests in each Partnership Significant Subsidiary have been duly and
validly created and (except for interests in Goldman Sachs Mitsui Marine
Derivative Products, L.P.) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(h) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the indenture to be dated as of May _____, 1999 (the "Indenture") between
the Company and The Bank of New York, as Trustee (including any successor
trustee, the "Trustee"), under which they are to be issued, which will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, when executed and delivered by the Company
and the Trustee, will constitute 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
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affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in
the Prospectuses;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the Amended and Restated Certificate of Incorporation or Amended and
Restated By-laws of the Company or the organizational documents of any of
its Significant Subsidiaries 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 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 Securities by the Company or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except the registration under the Act of the
Securities, such as have been obtained under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters;
(j) Neither the Company nor any of its Significant Subsidiaries is
in violation of its organizational documents or in default in the
performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
(k) The statements set forth in each Prospectus under the caption
"Description of Notes We Are Offering", insofar as they purport to
constitute a summary of the terms of the Securities, and the statements
set forth in the Prospectuses under the caption "United States Taxation",
and in the Initial Offering Prospectus under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(l) Other than as set forth in each Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future financial
position, stockholders' equity or partners' capital, as applicable, or
results of operations of the Company and its subsidiaries; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(m) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(n) The Company and its Significant Subsidiaries possess all
concessions, permits, licenses, consents, exemptions, franchises,
authorizations, orders, registrations, qualifications and other approvals
(each, an "Authorization") issued by the appropriate Federal, state and
foreign governments, governmental or regulatory authorities,
self-regulatory organizations and all courts or other tribunals, and are
members in good standing of each Federal, state or foreign exchange, board
of trade, clearing house or association and self-regulatory or similar
organization necessary to conduct their respective businesses as described
in each Prospectus;
(o) The statements set forth in the Prospectuses under the captions
"Management's Discussion and Analysis of Financial Condition and Results
of Operations--Risk Management--Operational and Year 2000 Risks--Year 2000
Readiness Disclosure" and "Risk Factors--Firm and Third-Party Computer
Systems May Not Achieve Year 2000 Readiness--Year 2000 Readiness
Disclosure" accurately and fairly set forth the current state of the
Company's efforts to address the Year 2000 Problem and the risks and costs
relating to the Year 2000 Problem. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
transmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at least
as effectively as in the case of dates or time periods occurring prior to
January 1, 2000; and
(p) PricewaterhouseCoopers LLP, who have certified certain financial
statements of Group and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of .....% of the principal amount thereof, plus accrued
interest, if any, from May __, 1999 to the Time of Delivery hereunder, the
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Initial Offering Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will
be represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company to Goldman, Sachs & Co. at least forty-eight hours in advance, by
causing DTC to credit the Securities to the account of Goldman, Sachs & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to Goldman, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 or at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on May __, 1999 or
such other time and date as Goldman, Sachs & Co. and the Company may agree upon
in writing. Such time and date are herein called the "Time of Delivery".
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(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Underwriters
pursuant to Section 8(k) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 2:30 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Initial Offering Prospectus in a form approved by
you and to file the Initial Offering Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any supplement
to the Registration Statement or the Initial Offering Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Initial Offering Prospectus or any
amended Initial Offering Prospectus has been filed and to furnish you with
copies thereof; to advise you, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or Initial
Offering Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Initial Offering
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Initial Offering Prospectus in connection with the offering or sale of the
Securities (other than any offering or sale by Goldman, Sachs & Co. of the
kind contemplated in the Secondary Transactions Prospectus) and if at such
time any event shall have occurred as a result of which the Initial
Offering Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state
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any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made when such Initial
Offering Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or
supplement the Initial Offering Prospectus in order to comply with the Act
or the Trust Indenture Act, to notify you and upon your request to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request
of an amended Initial Offering Prospectus or a supplement to the Initial
Offering Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required to deliver
a prospectus in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Initial Offering
Prospectus (other than any sales by Goldman, Sachs & Co. of the kind
contemplated in the Secondary Transactions Prospectus), upon your request
but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Initial Offering Prospectus complying with Section 10(a)(3)
of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158 under the Act);
(e) During the period beginning from the date hereof and continuing
to and including the later of the Time of Delivery and such earlier time
as you may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Securities;
(f) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Initial Offering Prospectus under the caption "Use of Proceeds";
(g) To use its best efforts to list, subject to notice of issuance,
the Securities on the Luxembourg Stock Exchange; and
(h) If the Company elects to rely upon Rule 462(b) under the Act, to
file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement and, at the time of filing, either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company agrees with Goldman, Sachs & Co.:
(a) (i) To prepare the Secondary Transactions Prospectus in a form
approved by Goldman, Sachs & Co. and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and delivery
of this Agreement, or, if applicable, such earlier time as may be required
by Rule 430A(a)(3) under the Act;
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(ii) to make no further amendment or any supplement to the
Registration Statement or the Secondary Transactions Prospectus during the
Secondary Transactions Period (as defined in the last sentence of this
Section 6(a)) which shall be disapproved by Goldman, Sachs & Co. promptly
after reasonable notice thereof, it being understood that, when Form S-2
or S-3 under the Act is available to the Company, the Company may amend
the Registration Statement so as to be on such form or may file a new
registration statement on such form and have it declared effective by the
Commission, and thereafter any information required to be included in the
Registration Statement or the Secondary Transactions Prospectus may be
incorporated therein by reference as permitted by such form, provided
that:
(w) if a new registration statement is filed and becomes
effective, any reference herein to the Registration Statement or the
Secondary Transactions Prospectus (including as one of the
Prospectuses) shall thereafter include, respectively, such new
registration statement and the prospectus contained therein in the
form first filed pursuant to Rule 424(b) under the Act;
(x) if a new registration statement is filed and becomes
effective, the Company shall be deemed to have made the
representations and warranties in Sections 1(a) (excluding the last
parenthetical clause thereof) and 1(c) to Goldman, Sachs & Co. with
respect to such new registration statement, as of its effective
date, and such prospectus contained therein in such form, as of its
date;
(y) if a new registration statement is filed and becomes
effective, any reference in this Agreement to any Preliminary
Prospectus or the Secondary Transactions Prospectus (including as
one of the Prospectuses) shall thereafter 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; and
(z) whether or not a new registration statement is filed and
becomes effective, any reference in this Agreement to any amendment
to the Registration Statement shall thereafter 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;
(iii) to advise Goldman, Sachs & Co., promptly after the Company
receives notice thereof, of the time when the Registration Statement, or
any amendment thereto, has been filed or becomes effective during the
Secondary Transactions Period, or any supplement to the Secondary
Transactions Prospectus or any amended Secondary Transactions Prospectus
has been filed during such period, and to furnish Goldman, Sachs & Co.
with copies thereof;
(iv) to advise Goldman, Sachs & Co., promptly after the Company
receives notice thereof during the Secondary Transactions Period, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose or of any
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request by the Commission for the amending or supplementing of the
Registration Statement or any Prospectus or for additional information;
and
(v) in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification during the Secondary
Transactions Period, to use promptly its reasonable efforts to obtain the
withdrawal of such order.
As used in this Agreement, the term "Secondary Transactions Period" means
the period beginning on the date hereof and continuing for as long as may
be required under applicable law, in the reasonable judgment of Goldman,
Sachs & Co. after consultation with the Company, in order to offer and
sell the Securities as contemplated by the Secondary Transactions
Prospectus.
(b) Promptly from time to time to take such action as Goldman, Sachs
& Co. may reasonably request to qualify the Securities for offering and
sale during the Secondary Transactions Period under the securities laws of
such jurisdictions as Goldman, Sachs & Co. may request and to comply with
such laws so as to permit the continuance of sale and dealings therein in
such jurisdictions during such period, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction; and to comply with all applicable securities and other laws,
rules and regulations in each such jurisdiction;
(c) To furnish Goldman, Sachs & Co. with copies of the Secondary
Transactions Prospectus in such quantities as Goldman, Sachs & Co. may
from time to time reasonably request during the Secondary Transactions
Period, and, if at any time during such period any event shall have
occurred as a result of which the Secondary Transactions Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is to be delivered during such period,
not misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Secondary Transactions Prospectus
or to amend the Registration Statement in order to comply with the Act or
to file under the Exchange Act any document incorporated by reference in
such Prospectus in order to comply with the Act or the Exchange Act, to
notify Goldman, Sachs & Co. and upon its request to file such document and
to prepare and furnish without charge to Goldman, Sachs & Co. as many
copies as it may from time to time during such period reasonably request
of an amended Secondary Transactions Prospectus or a supplement to the
Secondary Transactions Prospectus which will correct such statement or
omission or effect such compliance;
(d) During the Secondary Transactions Period, to furnish to Goldman,
Sachs & Co. copies of all reports or other communications (financial or
other) furnished to stockholders generally, and to deliver to Goldman,
Sachs & Co. (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which the Securities or any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as Goldman,
Sachs & Co. may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); and
10
(e) Each time the Registration Statement or the Secondary
Transactions Prospectus shall be amended or supplemented during the
Secondary Transactions Period, to furnish or cause to be furnished to
Goldman, Sachs & Co., upon its request, written opinions of counsel for
the Company, a letter from the independent accountants who have certified
the financial statements included in the Registration Statement as then
amended and certificates of officers of the Company, in each case in form
and substance reasonably satisfactory to you, all to the effect specified
in subsections (c), (d), (e), (f) and (k), respectively, of Section 8
hereof (as modified to relate to the Registration Statement and the
Secondary Transactions Prospectus as then amended or supplemented).
Notwithstanding the foregoing provisions, if at any time the Company
determines that it is in possession of material, non-public information
that it would not be required to disclose publicly in the absence of
registration of the Securities under the Act, the Company may, upon notice
to Goldman, Sachs & Co., cease to comply with any of its obligations under
this Section 6, but only for a period or periods that the Company
reasonably determines are necessary in order to avoid such premature
disclosure and in any event not to exceed 90 days in the aggregate during
any period of 12 consecutive calendar months. Upon receipt of any such
notice, Goldman, Sachs & Co. shall cease using the Secondary Transactions
Prospectus or any amendment or supplement thereto until it receives notice
from the Company that it may resume using such document.
7. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectuses and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters, and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 5(b) and Section 6(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities by the Underwriters pursuant to the Initial Offering
Prospectus; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; (viii) all reasonable fees, disbursements and expenses incident
to the performance of its obligations under Section 6(e); and (ix) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9
and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
8. The obligations of the several Underwriters hereunder shall be subject,
in their discretion, to the condition that all representations and warranties
and other statements of the Company herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed and the following
additional conditions:
11
(a) The Initial Offering Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement
shall have become effective by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Cleary, Gottlieb, Steen & Hamilton, counsel for the
Underwriters, shall have furnished to you such written opinion and letter
(drafts of such opinion and letter are attached as Annex II(a) hereto),
dated the Time of Delivery, to the effect that the matters set forth in
the Prospectuses under the caption "United States Taxation", insofar as
they purport to describe the provisions of the laws referred to therein,
are accurate, complete and fair and with respect to the matters covered in
paragraphs (i), (ii), (vi), (vii), (viii), (xi) and (xii) of subsection
(d) below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(c) Sullivan & Cromwell, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(b) hereto), dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware;
(ii) All the shares of common stock of the Company that were
outstanding immediately after the closing of the Company's initial
public offering of common stock on May 7, 1999 have been duly
authorized and validly issued and are fully paid and non-assessable;
(iii) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under the
Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware for the
issuance, sale and delivery of the Securities by the Company to you
have been obtained or made;
(iv) The issuance of the Securities in accordance with the
Indenture and the sale of the Securities by the Company to you
pursuant to this Agreement do not, and the performance by the
Company of its obligations under the Securities, the Indenture and
this Agreement will not, (a) violate the Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws of the
Company, (b) result in a default under or breach of the agreements
listed in Part II, Item 16(a), as Exhibits 2.1 and 10.1 through
10.38 of the Registration Statement, (c) violate any court orders
listed in the certificate of Robert J. Katz, a General Counsel of
the Company, dated the Time of Delivery and delivered to you in
connection with the offering of the Securities or (d) violate any
Federal law of the United States or law of the State of New York
applicable to the Company; provided, however, that for the purposes
of this paragraph (iv), such counsel may state that they express no
opinion with respect to
12
Federal or state securities laws, fraudulent transfer laws, other
antifraud laws and the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and related laws; and provided, further,
that such counsel may also state that insofar as performance by the
Company of its obligations under this Agreement, the Indenture and
the Securities is concerned, they are expressing no opinion as to
bankruptcy, insolvency, reorganization, moratorium or similar laws
of general applicability relating to or affecting creditors' rights;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act; the Securities have been duly authorized, executed,
authenticated, issued and delivered; and the Indenture and the
Securities constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and
(vii) The Company is not, and after giving effect to the
offering and sale of the Securities will not be, an "investment
company" as such term is defined in the Investment Company Act.
Such counsel shall also furnish you with a letter to the effect
that, as counsel to the Company, they reviewed the Registration Statement
and the Prospectuses, participated in discussions with your
representatives and those of the Company and its accountants and advised
the Company as to the requirements of the Act and the applicable rules and
regulations thereunder; between the date of the Prospectuses and the Time
of Delivery, such counsel participated in further discussions with your
representatives and those of the Company and its accountants in which the
contents of certain portions of the Prospectuses and related matters were
discussed and reviewed certain certificates of certain officers of the
Company, an opinion of a General Counsel of the Company and letters from
the Company's independent accountants delivered to you in connection with
the initial offering of the Securities; on the basis of the information
that such counsel gained in the course of the performance of the services
referred to above, considered in the light of such counsel's understanding
of the applicable law and the experience such counsel have gained through
their practice under the Act, they will confirm to you that, in such
counsel's opinion, the Registration Statement and the Prospectuses, as of
the effective date of the Registration Statement, appeared on their face
to be appropriately responsive in all material respects to the
requirements of the Act and the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder; nothing that came to
such counsel's attention in the course of such review has caused such
counsel to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; nothing that came to the attention
of such counsel in the course of the procedures described in the second
clause of this paragraph has caused such counsel to believe that the
Prospectuses, as of their date or as of the Time of Delivery, contained or
contain any untrue statement of a material fact or omitted 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; such counsel may state that the limitations inherent in the
independent verification of factual matters and the character of
determinations involved in the
13
registration process are such, however, that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectuses
except for those made under the captions "Description of Notes We Are
Offering" in the Prospectuses and "Underwriting" in the Initial Offering
Prospectus, in each case, insofar as they relate to provisions of
documents therein described, and except for those made under the caption
"United States Taxation" in the Prospectuses, insofar as they relate to
provisions of U.S. Federal income tax law therein described; such counsel
need express no opinion or belief as to the financial statements or other
financial data derived from accounting records contained in the
Registration Statement or the Prospectuses, or as to the statement of the
eligibility and qualification of the Trustee under the Indenture; and such
counsel may assume that any Rule 462(b) Registration Statement was filed
with the Commission prior to the time that any confirmations of the sale
of any of the Securities were sent or given to investors. In addition,
such counsel shall state that they do not know of any litigation
instituted or threatened against the Company that would be required to be
disclosed in the Prospectuses that is not so disclosed, provided that such
counsel may also state that they call to your attention that the Company
has an internal legal department and that, while such counsel represents
the Company and its affiliates on a regular basis, such counsel's
engagement has been limited to specific matters as to which it was
consulted and, accordingly, such counsel's knowledge with respect to
litigation instituted or threatened against the Company is limited; and
that they do not know of any documents that are required to be filed as
exhibits to the Registration Statement that are not so filed.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction other than the Federal laws
of the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware; that, insofar as such opinion
involves factual matters, they have relied upon certificates of officers
of the Company and its subsidiaries and certificates of public officials
and other sources believed by such counsel to be responsible; and that
such counsel have assumed that the Indenture has been duly authorized,
executed and delivered by the Trustee, that the Securities conform to the
form thereof examined by them, that the Trustee's certificates of
authentication of the Securities have been manually signed by one of the
Trustee's authorized signatories and that the signatures on all documents
examined by them are genuine (assumptions that they have not independently
verified).
(d) Gregory K. Palm, Esq., a General Counsel for the Company, shall
have furnished to you his written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectuses;
(ii) The Company has an authorized capitalization as set forth
in the Prospectuses, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) 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 other jurisdiction
14
in which it owns or leases properties or conducts any business so as
to require such qualification, or is subject to no material
liability or disability by reason of failure to be so qualified in
any such jurisdiction; provided, however, that for the purposes of
this paragraph (iii), such counsel may state that he expresses no
opinion as to the qualification of the Company as a foreign
corporation under the laws of the States of Texas or Illinois (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company, provided that
such counsel shall state that he believes that you and he are
justified in relying upon such opinions and certificates);
(iv) Each of Goldman, Sachs & Co. and J. Aron & Company has
been duly organized and is validly existing as a limited partnership
and general partnership, respectively, in good standing under the
laws of its jurisdiction of formation; and the general and limited
partnership interests in Goldman, Sachs & Co., and the general
partnership interests in J. Aron & Company, have been duly and
validly created and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities and claims (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he
believes that you and he are justified in relying upon such opinions
and certificates);
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectuses, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject that is reasonably likely, individually
or in the aggregate, to have a material adverse effect on the
current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Securities and the Indenture conform to
the descriptions thereof in the Prospectuses;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and 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 has been
duly qualified under the Trust Indenture Act.
(ix) The issue and sale of the Securities by the Company, the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the consummation by
the Company of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of
15
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Amended and Restated Certificate
of Incorporation or Amended and Restated By-laws of the Company or
any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties;
provided, however, that, for the purposes of this paragraph (ix),
such counsel need not express any opinion with respect to Federal or
state securities laws, fraudulent transfer laws, other antifraud
laws and ERISA and related laws; and provided, further, that insofar
as the compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated are concerned, such
counsel need not express any opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights;
(x) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
of the United States of America or the State of New York is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement, the
Securities or the Indenture, except the registration of the
Securities under the Act and the qualification of the Indenture
under the Trust Indenture Act, each of which has been obtained or
made, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(xi) The statements set forth in the Prospectuses under the
caption "Description of Notes We Are Offering", insofar as they
purport to constitute a summary of the terms of the Securities
described therein, and in the Initial Offering Prospectus under the
caption "Underwriting", insofar as they purport to describe the
provisions of the documents referred to therein, are accurate,
complete and fair; and
(xii) The Registration Statement and the Prospectuses and any
further amendments and supplements thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
related schedules therein, other financial data therein derived from
the Company's accounting records and the statement of the
eligibility and qualification of the Trustee under the Indenture, as
to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder;
although he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectuses, except for those
referred to in the opinion in paragraphs (ii) and (xi) of this
Section 8(d), he has no reason to believe (i) that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, other
financial data therein derived from the Company's accounting records
and the statement of the eligibility and qualification of the
Trustee under the Indenture, as to which such counsel need not
express any opinion) 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
16
not misleading, (ii) that, as of their date, the Prospectuses or any
further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and
related schedules therein, other financial data therein derived from
the Company's accounting records and the statement of the
eligibility and qualification of the Trustee under the Indenture, as
to which such counsel need not express any opinion) contained an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iii)
that, as of the Time of Delivery, either the Registration Statement
or the Prospectuses or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, other financial
data therein derived from the Company's accounting records and the
statement of the eligibility and qualification of the Trustee under
the Indenture, as to which such counsel need not express any
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and he does not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectuses which are not filed or
described as required. Such counsel may state that he assumes that
any Rule 462(b) Registration Statement was filed with the Commission
prior to the time that any confirmations of the sale of any of the
Securities were sent or given to investors.
In rendering such opinion, such counsel may state that he expresses
no opinion as to the laws of any jurisdiction other than the Federal laws
of the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware; that, insofar as such opinion
involves factual matters, he has relied upon certificates of officers of
the Company and its subsidiaries and certificates of public officials and
other sources believed by such counsel to be responsible; and that he has
assumed that the Indenture has been duly authorized, executed and
delivered by the Trustee, that the Securities conform to the form thereof
examined by him (or members of the Company's legal department acting under
his supervision), that the Trustee's certificates of authentication of the
Securities have been manually signed by one of the Trustee's authorized
signatories and that the signatures on all documents examined by him (or
members of the Company's legal department acting under his supervision)
are genuine (assumptions that he has not independently verified). In
addition, such counsel may state that he has examined, or has caused
members of the Company's legal department to examine, such corporate and
partnership records, certificates and other documents, and such questions
of law, as he has considered necessary or appropriate for the purposes of
such opinion;
(e) Linklaters & Paines, United Kingdom counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(d) hereto), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Goldman Sachs International has been duly incorporated and
is validly existing as a private unlimited company, in good standing
under the laws of England; and
(ii) All of the issued shares of Goldman Sachs International
have been duly and validly authorized and issued, are fully paid and
are owned by Goldman Sachs Holdings (U.K.), Goldman Sachs
Investments Europe and Goldman Sachs (U.K.) L.L.C.,
17
which are themselves indirectly owned by the Company, free and clear
from all liens, encumbrances, equities or claims.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction other than the Companies Act
of England. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied upon certificates of officers
of the Company and certificates of public officials and other sources
believed by such counsel to be responsible;
(f) On the date of the Initial Offering Prospectus at a time prior
to the execution of this Agreement, at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in form
and substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the execution
of this Agreement is attached as Annex I(a) hereto and a draft of the form
of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(g) (i) Neither the Company nor any of its Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Initial Offering Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Initial Offering Prospectus, and (ii) since
the respective dates as of which information is given in the Initial
Offering Prospectus there shall not have been any change in the capital
stock or partners' capital, as applicable, or long-term debt of the
Company or any of its Significant Subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Initial Offering Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Initial Offering Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iv) the outbreak or 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 event specified in this clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the
18
delivery of the Securities on the terms and in the manner contemplated in
the Initial Offering Prospectus;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery, certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of the Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to the Time of Delivery, as to the matters set forth
in subsections (a) and (g) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or any Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or any Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter 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 or any Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, 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 or any Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
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 as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from
19
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought under this
Section 9 (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 9 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 the Underwriters on the other from the
offering of the Securities contemplated by the Initial Offering Prospectus. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Initial Offering Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered
20
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 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
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting
21
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreement in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity agreement
of the Company in subsection (a) of Section 9 hereof, the representations and
warranties in subsections (b) and (c) of Section 1 hereof and any representation
or warranty as to the accuracy of the Registration Statement or any Prospectus
contained in any certificate furnished by the Company pursuant to Section 8
hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or partner of an Underwriter who is a director or officer of the Company who
signed the Registration Statement or a controlling person of the Company when
the Registration Statement has become effective or who, with his or her consent,
is named in the Registration Statement as about to become a director of the
Company, except in each case to the extent that an interest of such character
shall have been determined by a court of appropriate jurisdiction as not against
public policy as expressed in the Act. Unless in the opinion of counsel for the
Company the matter has been settled by controlling precedent, the Company will,
if a claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question of whether such interest is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
12. If this Agreement shall be terminated pursuant to Section 10 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 7 and 9 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 7
and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 32 Old Slip, 9th Floor, New York, New York 10005, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention:
22
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 9 and
11 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
23
If the foregoing is in accordance with your understanding, please sign and
return to us_____ counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
The Goldman Sachs Group, Inc.
By:.....................................
Name:
Title:
Accepted as of the date hereof at ........,
Goldman, Sachs & Co.
Banc One Capital Markets, Inc.
Blaylock & Partners, L.P.
BT Alex. Brown Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
NationsBanc Montgomery Securities LLC
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
By:...................................
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
24
SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
$
Goldman, Sachs & Co.
Banc One Capital Markets, Inc.
Blaylock & Partners, L.P.
BT Alex. Brown Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
NationsBanc Montgomery Securities LLC
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
The Williams Capital Group, L.P.
[Names of other Underwriters]
--------------
$1,500,000,000
Total ==============
25
ANNEX I
Pursuant to Section 8(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to Group and its subsidiaries and the Company within the meaning of the
Act and the applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements, the Selected
Consolidated Financial Data with respect to the consolidated results of
operations and financial position of Group for the five most recent fiscal
years, management's discussion and analysis of financial condition and
results of operations and any supplementary financial information and
schedules (and, if applicable, financial forecasts and/or pro forma
financial information) examined by them and included in the Prospectus or
the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act, Item 301 of Regulation
S-K under the Act, Item 303 of Regulation S-K under the Act and the
related rules and regulations adopted by the Commission; and, if
applicable, they have made an examination or a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts, management's discussion and analysis of financial condition and
results of operations 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 Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of earnings, consolidated
statements of financial condition, consolidated statements of changes in
partners' capital and consolidated statements of cash flows included in
the Prospectus as indicated in their reports thereon copies of which have
been furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of Group who had
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the related rules
and regulations adopted by the Commission, nothing came to their attention
that cause them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of Group for
any interim period included in the Prospectus agrees with the
corresponding amounts (after restatements where applicable) in the
unaudited consolidated financial statements for such interim period(s);
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures
specified in such letter nothing came to their attention as a result of
the foregoing procedures that caused them to believe that this information
does not conform in all material respects with the disclosure requirements
of Items 301, 302 and 402, respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of Group and its subsidiaries, inspection of the
minute books of the Management Committee of Group and of the Board of
Directors of the Company and of the general partner, of Goldman, Sachs &
Co. since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of Group and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of earnings,
consolidated statements of financial position, consolidated
statements of changes in partners' capital and consolidated
statements of cash flows included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations
adopted by the Commission, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of
earnings, consolidated statements of financial position,
consolidated statements of changes in partners' capital and
consolidated statements of cash flows included in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited statement of earnings data and
statement of financial position items included in the Prospectus do
not agree with the corresponding items in the unaudited consolidated
financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included in
the Prospectus;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in clause (A) and any
unaudited statement of earnings data and statement of financial
position 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 consolidated financial statements included in
the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
partners' capital or any increase in the consolidated long-term debt
of the Company and its subsidiaries, or any decreases in
consolidated net current assets or other items specified by the
Representatives, or any
2
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E) there were any decreases in consolidated total
revenues or consolidated revenues, net of interest expense, or
pre-tax earnings or other 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 decreases or increases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified procedures,
not constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived
from the general accounting records of Group and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of Group and its subsidiaries and have found
them to be in agreement.
3