THE XXXX CORPORATION
$154,000,000
Medium-Term Notes, Series A
Distribution Agreement
October 20, 1997
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
The Xxxx Corporation, an Ohio corporation (the
"Company"), proposes to issue and sell from time to time
its Medium-Term Notes, Series A (the "Securities") at an
aggregate initial public offering price of up to
$154,000,000 and agrees with each of you (individually,
an "Agent", and collectively, the "Agents") as set forth
in this Agreement.
Subject to the terms and conditions stated
herein and to the reservation by the Company of the right
to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the
Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company pursuant
to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to
sell Securities directly to any Agent as principal, it
will enter into a separate agreement (each a "Terms
Agreement") which may be either (i) a written agreement,
substantially in the form of Annex I hereto, or (ii) an
oral agreement between such Agent and the Company
confirmed in writing by such Agent to the Company,
relating to such sale in accordance with Section 2(b)
hereof.
The Securities will be issued under the
Indenture, dated as of October 20, 1997 (the
"Indenture"), between the Company and Citibank, N.A., as
Trustee (the "Trustee"). The Securities shall have the
maturity ranges, interest rates, if any, redemption
provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented
from time to time. The Securities will be issued, and
the terms and rights of holders thereof established, from
time to time by the Company in accordance with the
Indenture.
1. The Company represents and warrants to, and
agrees with, each Agent that:
(a) Three registration statements on Form S-3
(File Nos. 333-16135, 33-51337 and 33-43994), including a
prospectus for use in connection with the Securities
pursuant to Rule 429 under the Securities Act of 1933, as
amended (the "Act"), in respect of $850,000,000 aggregate
amount of securities of the Company, including the
Securities, have been filed with the Securities and
Exchange Commission (the "Commission"); such registration
statements and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to
such Agent, excluding exhibits to such registration
statements, but including all documents incorporated by
reference in the prospectus contained in the latest
registration statement have been declared effective by
the Commission in such form; no other document with
respect to such registration statements (other than a
document incorporated by reference therein) has
heretofore been filed or transmitted for filing with the
Commission (other than the Prospectus Supplement dated
February 4, 1997 and pricing supplements filed pursuant
to 424(b) of the rules and regulations of the Commission
under the Act, relating to the issuance of medium-term
notes); and no stop order suspending the effectiveness of
any such registration statements has been issued and no
proceeding for that purpose has been instituted or
threatened by the Commission (any preliminary prospectus
included in the latest registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, being
hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including
all exhibits thereto and the documents incorporated by
reference in the prospectus contained in such
registration statement at the time such part of such
registration statement became effective but excluding the
two Form T-1s filed as an exhibit to the latest
registration statement, each as amended at the time such
part of such registration statement became effective,
being hereinafter collectively called the "Registration
Statement"; the prospectus (including the prospectus
supplement) relating to the Securities, in the form in
which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of
this Agreement being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the
terms of the particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant
to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the
Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities sold
pursuant to this Agreement, in the form in which it is
filed with the Commission pursuant to Rule 424(b) under
the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein
as of the date of such filing);
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are
filed with the Commission, as the case may be, will
conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein 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 any Agent
expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of
Securities;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or
supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and
the Registration Statement and any further amendment
thereto and the Prospectus do not and will not, as of the
effective date of the Registration Statement and any
further amendment 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; and the Prospectus and any
further amendment or supplement thereto, as of its date,
does not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in
reliance upon and in conformity with information
furnished in writing to the Company by any Agent
expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of
Securities;
(d) Neither the Company nor any of its
subsidiaries or Material Affiliates (as hereinafter
defined) has sustained since the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus any material loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has
not been any incurrence by the Company or its
subsidiaries or its Material Affiliates of any material
liabilities or obligations, direct or contingent, or any
material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any Material
Affiliates or any material adverse change, or any
development involving a prospective material adverse
change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries as a whole
or any of its Material Affiliates, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Ohio, with corporate power
and authority to own its properties and conduct its
business as described in the Prospectus, and 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 in which the conduct of
its business or the ownership of its property requires
such qualification;
(f) The Company has an authorized
capitalization as set forth in the Prospectus, 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, and all of the issued shares of
capital stock of each subsidiary and the capital stock of
each Material Affiliate owned by the Company have been
duly and validly authorized and issued and are fully paid
and non-assessable, and (except for directors' qualifying
shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims other than agreements relating to joint venture
Companies;
(g) The Securities have been duly authorized,
and, when Securities are issued and delivered pursuant to
this Agreement and any Terms Agreement, such Securities
will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding
obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity
principles, and entitled to the benefits provided by the
Indenture, which will be substantially in the form
incorporated by reference in the Prospectus; the
Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the
Trust Indenture Act and, constitutes a valid and legally
binding instrument of the Company, enforceable against
the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the
Securities of any particular issuance of Securities will
conform, to the descriptions thereof in the Prospectus as
amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities and
the compliance by the Company with all of the provisions
of the Securities, the Indenture, this Agreement and any
Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company or any of its
subsidiaries or Material Affiliates pursuant to the terms
of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries or Material Affiliates
is a party, or by which the Company or any of its
subsidiaries or Material Affiliates is bound or to which
any of the property or assets of the Company or any of
its subsidiaries or Material Affiliates is subject, nor
will such action result in any violation of the
provisions of the Articles of Incorporation or the
Regulations of the Company or any statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or Material Affiliates 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 or the consummation by
the Company of the other transactions contemplated by
this Agreement, any Terms Agreement or the Indenture,
except such as have been, or will have been prior to the
Commencement Date (as defined in Section 3 hereof),
obtained under the Act or the Trust Indenture Act and
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws or under laws of foreign
jurisdictions in connection with the solicitation by such
Agent of offers to purchase Securities from the Company
and with purchases of Securities by such Agent as
principal, as the case may be, in each case in the manner
contemplated hereby;
(i) There are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries or Material Affiliates is a party or of
which any property of the Company or any of its
subsidiaries or Material Affiliates is the subject
required to be described in the Registration Statement or
the Prospectus which is not described as required; the
legal or governmental proceedings not so described are
proceedings incident to the kind of business conducted by
the Company and its subsidiaries and Material Affiliates
which will not individually or in the aggregate have a
material adverse effect on the financial position,
shareholders' equity or results of operations of the
Company and its subsidiaries as a whole or of any of its
Material Affiliates; and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others; and there is no material contract or other
material document of a character required to be described
in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which
is not described or filed as required.
(j) Deloitte & Touche LLP, who have certified
certain financial statements of the Company and its
subsidiaries, are independent certified public
accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(k) As used in this Agreement (i) the term
"Material Affiliate" means each of the following
corporations: Northwood Forest Industries Ltd. and
Northwood Panelboard Company and (ii) the term
"subsidiary" means Escanaba Paper Company, Forest Kraft
Company, M-B Pulp Company, MCB Woodlands and Services,
Inc., Xxxx Coated Board, Inc., Xxxx Foreign Holdings,
Inc., Xxxx Holdings S.A., Xxxx Packaging International,
Inc. and Xxxx Oxford Corporation.
2. (a) On the basis of the representations
and warranties, and subject to the terms and conditions
herein set forth, each of the Agents hereby severally and
not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit and receive offers to
purchase the Securities from the Company upon the terms
and conditions set forth in the Prospectus as amended or
supplemented from time to time. However, (i) the Company
reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own
behalf, and, in the case of any such sale not resulting
from a solicitation made by any Agent, no commission will
be payable with respect to such sale; and (ii) the
Company shall have the right at any time to request the
Agents to execute, prior to the date 15 business days
after such request, an amendment to this Agreement to
provide for another person as an Agent hereunder on
substantially the same terms as the Agents hereunder on
the date of such request, and each Agent shall have the
right either to execute such amendment or to terminate
the provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the
Company pursuant to Section 10 with respect to such
Agent. These provisions shall not limit Section 4(f)
hereof or any similar provision included in any Terms
Agreement.
Procedural details relating to the issue and
delivery of Securities, the solicitation of offers to
purchase Securities and the payment in each case therefor
shall be as set forth in the Administrative Procedure
attached hereto as Annex II as it may be amended from
time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The
provisions of the Administrative Procedure shall apply to
all transactions contemplated hereunder other than those
made pursuant to a Terms Agreement. Each Agent and the
Company agree to perform the respective duties and
obligations specifically provided to be performed by each
of them in the Administrative Procedure. The Company
will furnish to the Trustee a copy of the Administrative
Procedure as from time to time in effect.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any
time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one
business day in New York City, after receipt of notice
from the Company, the Agents will suspend solicitation of
offers to purchase Securities from the Company until such
time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a
commission, at the time of settlement of any sale of a
Security by the Company as a result of a solicitation
made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such
Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities Sold)
From 9 months to less than 1 year................. .125%
From 1 year to less than 18 months................ .150%
From 18 months to less than 2 years............... .200%
From 2 years to less than 3 years................. .250%
From 3 years to less than 4 years................. .350%
From 4 years to less than 5 years................. .450%
From 5 years to less than 6 years................. .500%
From 6 years to less than 7 years................. .550%
From 7 years to less than 10 years................ .600%
From 10 years to less than 15 years............... .625%
From 15 years to less than 20 years............... .700%
20 years to less than 30 years.................... .750%
30 years and more............ Determined at time of sale
(b) Each sale of Securities to any Agent as
principal shall be made in accordance with the terms of
this Agreement and (unless the Company and such Agent
shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities to, and the
purchase thereof by, such Agent. A Terms Agreement may
also specify certain provisions relating to the
reoffering of such Securities by such Agent. The
commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Company
herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Securities to be
purchased by any Agent pursuant thereto, the price to be
paid to the Company for such Securities, any provisions
relating to rights of, and default by, underwriters
acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of
and payment for such Securities. Such Terms Agreement
shall also specify any requirements for opinions of
counsel, accountants' letters and officers' certificates
pursuant to Section 4 hereof.
For each sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement,
the procedural details relating to the issue and delivery
of such Securities and payment therefor shall be as set
forth in the Administrative Procedure. For each such
sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent
discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment
for Securities to be purchased by an Agent as principal,
whether set forth in a Terms Agreement or in accordance
with the Administrative Procedure, is referred to herein
as a "Time of Delivery".
(c) Each Agent agrees, with respect to any
Security denominated in a currency other than U.S.
dollars, as agent, directly or indirectly, not to solicit
offers to purchase, and as principal under any Terms
Agreement or otherwise, directly or indirectly, not to
offer, sell or deliver, such Security in, or to residents
of, the country issuing such currency, except as
permitted by applicable law.
3. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as
defined below) shall be delivered to the Agents at the
offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at 3:00 p.m., New York City time, on the
date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the
day prior to the date on which solicitation of offers to
purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred
to herein as the "Commencement Date").
4. The Company covenants and agrees with each
Agent:
(a) (i) To make no further amendment or supplement
to the Registration Statement or the Prospectus as amended
or supplemented (A) prior to the Commencement Date which
shall be reasonably disapproved by any Agent promptly after
reasonable notice thereof or (B) subsequent to the date of
any Terms Agreement or other agreement by an Agent to
purchase Securities as principal or effecting a purchase as
agent, after the date of such Terms Agreement or such other
agreement and prior to the related Time of Delivery which
shall be reasonably disapproved by any Agent party to such
Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such
Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by
such Agent and to file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the close of
business of the Commission on the second business day (or
such other day as Rule 424 shall require) after the date on
which such Pricing Supplement is first used; (iii) to make
no further amendment or supplement to the Registration
Statement or Prospectus as amended or supplemented, other
than any Pricing Supplement or a supplement relating solely
to an offering of debt securities other than the Securities
or any document filed under the Exchange Act which is
incorporated by reference into the Prospectus, at any time
prior to having afforded each Agent a reasonable
opportunity to review and comment on it; (iv) to file
promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or
sale of the Securities, and during such same period to
advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended
Prospectus, other than a supplement relating solely to an
offering of debt securities other than the Securities and
other than any Pricing Supplement that relates to
Securities not purchased through or by such Agents, has
been filed with, or mailed for filing to, the Commission,
of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of
the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or
suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal of such
order;
(b) Promptly from time to time to take such
action as such Agent reasonably may request to qualify
the Securities for offering and sale under the securities
laws of such United States jurisdictions as such Agent
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 or sale of the Securities; provided,
that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would
subject it to service of process arising out of the offer
or sale of such Securities, in any jurisdiction where it
is not now subject;
(c) To furnish such Agent with copies of the
Registration Statement and each amendment thereto, with
copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except
as provided in the Administrative Procedure) or a
prospectus supplement relating solely to an offering of
debt securities other than the Securities, in the form in
which it is filed with the Commission pursuant to Rule
424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities
as such Agent may reasonably request from time to time;
and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the
Securities (including Securities purchased from the
Company by such Agent as principal) and if at such time
any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include
an untrue statement 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
delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify such Agent and
request such Agent, in its capacity as agent of the
Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such
Agent shall cease such solicitations as soon as
practicable, but in any event not later than one business
day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus
as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and
to prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission
or effect such compliance; provided, however, that if
during such same period such Agent continues to own
Securities purchased from the Company by such Agent as
principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the
Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its
security holders as soon as practicable, but in any event
not later than eighteen months after the effective date
of the Registration Statement (as defined in Rule 158(c))
and the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Registration Statement,
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);
(e) So long as any of the Securities are
outstanding, the Company will furnish to such Agent (i)
as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the
Commission and (ii) from time to time such other
information concerning the Company as such Agent may
reasonably request.
(f) That, from the date of any Terms Agreement
with such Agent or other agreement by such Agent to
purchase Securities as principal, if required by such
Terms Agreement or other agreement, and continuing to and
including the earlier of (i) the termination of the
trading restrictions for the Securities purchased
thereunder, as notified to the Company by such Agent and
(ii) the related Time of Delivery, the Company will not,
without the prior written consent of such Agent, offer,
sell, contract to sell or otherwise dispose of any debt
securities of the Company which both mature more than 9
months after such Time of Delivery and are substantially
similar to the Securities, other than debt securities
which the Company has previously contracted to sell and
with respect to which the Company has advised such Agent
in or in connection with such Terms Agreement or other
agreement or of which such Agent has actual knowledge
thereof;
(g) That each acceptance by the Company of an
offer to purchase Securities hereunder (including any
purchase by such Agent as principal not pursuant to a
Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the
representations and warranties of the Company contained
in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such
Terms Agreement, as the case may be, as though made at
and as of such date, and an undertaking that such
representations and warranties will be true and correct
as of the settlement date for the Securities relating to
such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as
of such date (except that such representations and
warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That, following the issuance of Securities
under the Indenture, on April 15 (or if such day is not a
business day, the next succeeding business day) of every
year this Agreement is in effect or as otherwise
reasonably requested by the Agents, and each time the
Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by
Xxxxxxxx & Xxxxxxxx, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish to such
counsel such papers and information as they may
reasonably request to enable them to furnish to such
Agent the opinion or opinions referred to in Section 6(b)
hereof;
(i) That each time the Registration Statement
or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or a supplement relating
solely to an offering of debt securities other than the
Securities), each time a document filed under the Act or
the Exchange Act is incorporated by reference into the
Prospectus (other than a Current Report on Form 8-K
unless reasonably requested by the Agents) and each time
the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion under this Section
4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent
written opinions of Xxxxx X. Xxxxxx, Assistant Secretary
and Associate General Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, dated
the date of such amendment, supplement or incorporation
or the Time of Delivery relating to such sale, as the
case may be, in form satisfactory to such Agent, to the
effect that such Agent may rely on such opinion of such
counsel referred to in Section 6(c) hereof which were
last furnished to such Agent to the same extent as though
it were dated the date of such letter authorizing
reliance (except that the statements in such last
opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such opinions, opinions of
the same tenor as the opinions of such counsel referred
to in Section 6(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That, following the issuance of Securities
under the Indenture, on April 15 (or if such day is not a
business day, the next succeeding business day) of every
year this Agreement is in effect or as otherwise
reasonably requested by the Agents, and each time the
Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion under this Section
4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent
written opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, special counsel for the Company, or other counsel
for the Company satisfactory to such Agent, in form
satisfactory to such Agent, to the effect that such Agent
may rely on such opinion of such counsel referred to in
Section 6(d) hereof which were last furnished to such
Agent to the same extent as though it were dated the date
of such letter authorizing reliance (except that the
statements in such last opinions shall be deemed to
relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu of
such opinions, opinions of the same tenor as the opinions
of such counsel referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date;
(k) That each time the Registration Statement
or the Prospectus shall be amended or supplemented (other
than a supplement relating solely to an offering of debt
securities other than the Securities) and each time that
a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than
a Current Report on Form 8-K unless reasonably requested
by the Agents), in either case to set forth financial
information included in or derived from the Company's
consolidated financial statements or accounting records,
and each time the Company sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of a letter under this
Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause
the independent certified public accountants who have
audited the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement to furnish such Agent a letter
substantially in the form of Annex III hereto, dated the
date of such amendment, supplement or incorporation or
the Time of Delivery relating to such sale, as the case
may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(e) hereof
but modified to relate to the Registration Statement and
the Prospectus as amended or supplemented to the date of
such letter, with such changes as may be necessary to
reflect changes in the financial statements and other
information derived from the accounting records of the
Company, to the extent such financial statements and
other information are available as of a date not more
than five business days prior to the date of such letter;
provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of
such date, rather than repeat, statements with respect to
such financial information or other matter made in the
letter referred to in Section 6(e) hereof which was last
furnished to such Agent; and
(l) That each time the Registration Statement
or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or a prospectus supplement
relating solely to an offering of debt securities other
than the Securities), each time a document filed under
the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than a Current Report on Form
8-K unless reasonably requested by the Agents), and each
time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies
the delivery of a certificate under this Section 4(l) as
a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause
to be furnished forthwith to such Agent a certificate,
dated the date of such supplement, amendment,
incorporation or the Time of Delivery relating to such
sale, as the case may be, in such form and executed by
such officers of the Company as shall be satisfactory to
such Agent, to the effect that the statements contained
in the certificates referred to in Section 6(h) hereof
which were last furnished to such Agent are true and
correct at such date as though made at and as of such
date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu of
such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(h) but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date.
5. The Company covenants and agrees with each Agent
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, the Prospectus and any Pricing
Supplements and all other amendments and supplements
thereto and the mailing and delivering of copies thereof
to the Agents; (ii) the reasonable fees and expenses of
counsel for the Agents in connection with the
establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and the
transactions contemplated hereunder (provided that the
Company will pay such fees and expenses up to an
aggregate maximum amount of $60,000 with respect to the
establishment of the program contemplated hereby); (iii)
the cost of printing, preparing by word processor or
reproducing this Agreement, any Terms Agreement, the
Indenture, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the
Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including
reasonable fees and disbursements of counsel for the
Agents in connection with such qualification and in
connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating
services for rating the Securities; (vi) any filing fees
incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vii) the cost of preparing,
and providing any CUSIP or other identification number
for, the Securities; (viii) the fees and expenses of the
Trustee and any agent of the Trustee and any transfer or
paying agent of the Company and the fees and
disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (ix)
the fees and expenses of any Depositary (as defined in
the Indenture) and any nominees thereof in connection
with the Securities; (x) any reasonable advertising
expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such
advertising expenses have been approved in advance by the
Company (any advertising expense approved by the Company
in advance shall be deemed to be reasonable); (xi) all
other reasonable costs and expenses incident to the
performance of the Company's obligations hereunder which
are not otherwise specifically provided for in this
Section; and (xii) the fees and expenses in connection
with any listing of the Securities and registration of
the Securities under the Exchange Act. Except as
provided in this Section and Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of
the Company, at any time ("Solicitation Time") to solicit
offers to purchase the Securities, the obligation of any
Agent to purchase Securities as principal, pursuant to
any Terms Agreement or otherwise, and the obligation of
any purchaser of Securities as a result of an offer to
purchase solicited by any Agent, shall be subject, in the
discretion of such Agent or purchaser, as the case may
be, to the condition that all representations and
warranties and other statements of the Company herein
(and, in the case of an obligation of the Agents under a
Terms Agreement, in or incorporated in such Terms
Agreement by reference) are true and correct at and as of
the Commencement Date and any applicable date referred to
in Section 4(l) hereof, as the case may be, and at and as
of such Solicitation Time, settlement date or Time of
Delivery, as the case may, be, the condition that prior
to such Solicitation Time, settlement date or Time of
Delivery, as the case may be, the Company shall have
performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) (i) With respect to any Securities sold
at or prior to such Solicitation Time, settlement date or
Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have
been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period
prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; (iii) all
requests for additional information on the part of the
Commission shall have been complied with to the
reasonable satisfaction of such Agent; and (iv) after the
date of any Terms Agreement or other agreement by an
Agent to purchase Securities as principal and prior to
the related Time of Delivery no document shall have been
incorporated by reference into the Prospectus which shall
be disapproved by such Agent promptly after reasonable
notice thereof;
(b) Xxxxxxxx & Xxxxxxxx, counsel to the
Agents, shall have furnished to such Agent (i) such
opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company, the validity
of the Indenture, the Securities, the Registration
Statement, the Prospectus as amended or supplemented and
such other related matters as such Agent may reasonably
request, and (ii) if and to the extent requested by such
Agent, with respect to each applicable date referred to
in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may
be, an opinion or opinions, dated such applicable date,
to the effect that such Agent may rely on the opinion or
opinions which were last furnished to such Agent pursuant
to this Section 6(b) to the same extent as though it or
they were dated the date of such letter authorizing
reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
to such date) or, in any case, in lieu of such an opinion
or opinions, an opinion or opinions of the same tenor as
the opinion or opinions referred to in clause (i) but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and
in each case such counsel shall have received such papers
and information as they may reasonably request to enable
them to pass upon such matters;
(c) Xxxxx X. Xxxxxx, Assistant Secretary and
Associate General Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, shall
have furnished to such Agent, his written opinions, dated
the Commencement Date and each applicable date referred
to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent, 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 jurisdiction of its incorporation, with
corporate power and authority to own its
properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) (a) To the best of such counsel's
knowledge 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 required to be
described in the Registration Statement or the
Prospectus which is not described as required;
and (b) the legal or governmental proceedings
not so described are proceedings incident to
the kind of business conducted by the Company
and its subsidiaries which individually and in
the aggregate are not material to the Company
and its subsidiaries, taken as a whole, and to
the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by
others (such counsel being entitled to rely, in
respect of the opinion in this clause relating
to subsidiaries, upon opinions of other legal
counsel, it being understood that such counsel
has made no independent check of such
proceedings but believes that both you and such
counsel are justified in relying upon such
opinions and that, with respect to proceedings
that are threatened or contemplated, counsel's
opinion will be limited to matters of which
they have actual knowledge);
(iii) This Agreement and any applicable
Terms Agreement have been duly authorized,
executed and delivered by the Company;
(iv) The issuance and sale of the
Securities have been duly authorized by the
Company; the Securities, when executed and
authenticated in accordance with the terms of
the Indenture, when the terms of the Securities
have been fixed by the Chief Financial Officer
in conformity with the Indenture, and when the
Securities have been issued, sold and delivered
to and paid for by the Agents in accordance
with the terms of this Agreement, will be duly
authorized, executed and delivered and will
constitute valid and binding obligations of the
Company enforceable in accordance with their
terms and entitled to the benefits of the
Indenture, except (a) to the extent that
enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other
similar laws now or hereafter in effect
relating to creditors' rights generally and
(ii) general principles of equity (regardless
of whether enforceability is considered in a
proceeding at law or in equity), (b) that such
counsel expresses no opinion as to Section 515
of the Indenture, (c) requirements that a claim
with respect to any Securities denominated
other than in U.S. dollars (or a judgment
denominated other than in U.S. dollars in
respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law and
(d) governmental authority to limit, delay or
prohibit the making of payments in foreign
currency, currency units or composite
currencies, outside the United States; such
counsel may assume that at the time of the
issuance, sale and delivery of each particular
Security there will not have occurred any
change in law affecting the validity, legally
binding character or enforceability of such
Security and that the issuance, sale and
delivery of such Security, all of the terms of
such Security and the performance by the
Company of its obligations thereunder will
comply with applicable law and with each
requirement or restriction imposed by any court
or governmental body having jurisdiction over
the Company and will not result in a default
under or a breach of any agreement or
instrument then binding upon the Company;
(v) The Indenture has been duly
authorized, executed and delivered by the
Company and is a valid and binding agreement of
the Company, enforceable against the Company in
accordance with its terms, except (a) to the
extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other
similar laws now or hereafter in effect
relating to creditors' rights generally and
(ii) general principles of equity (regardless
of whether enforceability is considered in a
proceeding at law or in equity), (b) that such
counsel expresses no opinion as to Section 515
of the Indenture; and the Indenture has been
qualified under the Trust Indenture Act, (c)
requirements that a claim with respect to any
Securities denominated other than in U.S.
dollars (or a judgment denominated other than
in U.S. dollars in respect of such claim) be
converted into U.S. dollars at a rate of
exchange prevailing on a date determined
pursuant to applicable law and (d) governmental
authority to limit, delay or prohibit the
making of payments in foreign currency,
currency units or composite currencies, outside
the United States;
(vi) The issuance and sale of the
Securities and the compliance by the Company
with all of the provisions of the Securities,
the Indenture, this Agreement and any
applicable Terms Agreement with respect to the
Securities and the consummation of the
transactions herein and therein contemplated
does not conflict with or result in a breach of
any of the terms or provisions of, or
constitute a default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the property or assets
of the Company or any of its subsidiaries
pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or
other agreement or instrument known to such
counsel to which the Company 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 do such actions result in any
violation of the provisions of the Articles of
Incorporation or Regulations 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, except that counsel
expresses no opinion with respect to the State
securities or Blue Sky laws or with respects to
the rights to indemnity and contribution under
this Agreement (such counsel being entitled to
rely in respect of the opinion in this
paragraph relating to subsidiaries upon
opinions of other legal counsel provided that
such counsel shall state that both you and such
counsel are justified in relying upon such
opinions); such counsel may assume that, at the
time of the issuance, sale and delivery of each
particular Security, the issuance, sale and
delivery of such Security, all the terms of
such Security and the performance by the
Company of its obligations thereunder will
comply with applicable law and each requirement
or restriction imposed by any court or
governmental body having jurisdiction over the
Company and will not result in a default under
or a breach of the Articles of Incorporation or
Regulations of the Company, or any agreement or
instrument then binding upon the Company or its
properties;
(vii) No consent, approval, license,
authorization, validation, filing, recording,
order, registration or qualification of or with
any such court or governmental agency or body
is required for the solicitation of offers to
purchase Securities, the issue and sale of the
Securities or the consummation by the Company
of the transactions contemplated by this
Agreement or any applicable Terms Agreement or
the Indenture, except such as have been
obtained under the Act and the Trust Indenture
Act and such consents, approvals,
authorizations, orders, registrations or
qualifications as may be required under state
securities or Blue Sky laws or under the laws
of foreign jurisdictions in connection with the
solicitation by the Agents of offers to
purchase Securities from the Company and with
purchases of Securities by an Agent as
principal, as the case may be, in each case in
the manner contemplated hereby; such counsel
may assume that, at the time of the issuance,
sale and delivery of each particular Security,
the issuance, sale and delivery of such
Security, all the terms of such Security and
the performance by the Company of its
obligations thereunder will not require any
consent or authorization of any such court or
governmental agency;
(viii) The statements set forth in the
Prospectus under the captions "Description of
Securities", "Description of Notes" and
"Supplemental Plan of Distribution" and under
the caption "Description of Designated
Securities" (or comparable caption) in the
Prospectus as amended or supplemented in
respect of the Securities, insofar as they
purport to summarize certain provisions of the
laws and documents referred to therein, fairly
summarize such provisions in all material
respects;
(ix) The documents incorporated by
reference in the Prospectus as amended or
supplemented, when they were filed with the
Commission appeared on their face to be
appropriately responsive in all material
respects to the requirements of the Exchange
Act and the rules and regulations thereunder,
except that such counsel expresses no opinion
as to the financial statements, related
schedules and other financial data, and such
counsel does not assume any responsibility for
the accuracy, completeness or fairness of the
statements contained in the documents
incorporated by reference in the Prospectus as
amended or supplemented; and
(x) The Registration Statement, as of its
effective date, and the Prospectus as amended
or supplemented, as of its date, and any
further amendments and supplements thereto made
by the Company prior to the Time of Delivery
for the Securities, 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 rules and
regulations thereunder, except that in each
case, such counsel expresses no opinion as to
the financial statements, schedules and other
financial data, and such counsel does not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement and the
Prospectus, except for those referred to in the
opinion in paragraphs (ii)(a) and (viii);
In addition, such counsel shall state
that, although they are not passing upon and do
not assume any responsibility for, the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement or the Prospectus and have made no
independent check or verification thereof,
except for those referred to in the opinion in
paragraphs (ii)(a) and (viii), no facts have
come to their attention that have led them to
believe that the Registration Statement, at the
time it became effective, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading or that, as of its date,
the Commencement Date and the Time of Delivery,
the Prospectus as amended or supplemented, or
any further amendment or supplement thereto
made by the Company prior to the Commencement
Date or the Time of Delivery, contained or
contains an untrue statement of a material fact
or omitted or omits to state a material fact
necessary in order to make the statements
therein, in light of the circumstances under
which they were made, not misleading, except
that such counsel expresses no opinion or
belief with respect to the financial
statements, schedules and other financial data;
and such counsel does not know 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 Prospectus as
amended or supplemented which are not filed or
described as required.
In rendering such opinion, (A) such counsel may
state that such opinion is limited solely to the laws of
the State of Ohio as applied by courts located in Ohio,
the laws of the State of New York with respect to the
opinions in paragraphs (iii), (iv) and (v) and the
federal laws of the United States and (B) such counsel
may rely, as to all matters of law of the State of New
York, on an opinion of local counsel;
(d) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
special counsel for the Company, or other counsel
satisfactory to such Agent shall have furnished to such
Agent their written opinions, dated the Commencement Date
and each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or
Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect of
paragraphs (iii), (iv), (v), (viii) (including the
statements set forth under the heading "United States
Taxation" in the Prospectus as amended or supplemented),
(x) (including the last paragraph thereof, but excluding
the last clause of such paragraph) of paragraph (c); in
rendering such opinion, (A) Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP may state that such opinion is limited solely
to the laws of the State of New York as applied by courts
located in New York and the federal laws of the United
States and (B) such counsel shall be entitled to make
certain assumptions with respect to matters of Ohio law
opined upon by Ohio counsel with respect to the opinions
in paragraphs (iii), (iv) and (v);
(e) (i) Not later than 10:00 a.m., New York
City time, on the Commencement Date and on each
applicable date referred to in Section 4(k) hereof that
is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified
public accountants who have audited the financial
statements of the Company and its subsidiaries included
or incorporated by reference in the Registration
Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as
the case may be, in form and substance satisfactory to
such Agent, to the effect set forth in Annex III hereto;
(f) (i) Neither the Company nor any of its
subsidiaries or Material Affiliates shall have sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus
as amended or supplemented any loss or interference with
its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented and (ii) since
the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not
have been any incurrence by the Company or its
subsidiaries or its Material Affiliates of any material
liabilities or obligations, direct or contingent, any
material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or
affecting the financial position, stockholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect
of which, in any such case described in clause (i) or
(ii), is in the judgment of such Agent so material and
adverse as to make it impracticable or inadvisable to
proceed with the solicitation by such Agent of offers to
purchase Securities from the Company or the purchase by
such Agent of Securities from the Company as principal,
as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or
supplemented;
(g) 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 in New York declared by either Federal
or New York State authorities; (iv) the outbreak or
material escalation of hostilities involving the United
States or the declaration by the United States of a
national emergency or war or other international or
domestic calamity, crisis or change in political,
financial or economic conditions, if the effect of any
such event specified in this clause (iv) in the judgment
of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase
Securities or the purchase of Securities from the Company
as principal, pursuant to the applicable Terms Agreement
or otherwise, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or
supplemented; (v) any downgrading 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; or (vi) any such "nationally
recognized statistical rating 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 or preferred
stock; and
(h) The Company shall have furnished or caused
to be furnished to such Agent certificates of officers of
the Company dated the Commencement Date and each
applicable date referred to in Section 4(l) hereof that
is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed
by such officers of the Company as shall be satisfactory
to such Agent, as to the accuracy of the representations
and warranties of the Company herein at and as of the
Commencement Date or such applicable date, as the case
may be, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to
the Commencement Date or such applicable date, as the
case may be, as to the matters set forth in subsections
(a) and (f) of this Section 6, and as to such other
matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold
harmless each Agent against any losses, claims, damages
or liabilities, joint or several, to which such Agent may
become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other
prospectus relating to the Securities (but only if such
other prospectus was approved in writing by the Company),
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 such Agent for any legal
or other expenses reasonably incurred by it 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, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus approved in writing
by the Company relating to the Securities, or any such
amendment or supplement, in reliance upon, and in
conformity with written information furnished to the
Company by such Agent expressly for use therein; and
provided further, that the Company shall not be liable to
such Agent under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus
to the extent that any such loss, claim, damage or
liability of such Agent results from the fact such Agent
sold Securities to a person to whom it shall be
established that there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by
the Act if the Company has previously furnished copies
thereof in sufficient quantity to such Agent and the
loss, claim, damage or liability of such Agent results
from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was
identified in writing prior to the date of the Terms
Agreement or the date of such purchase and to such Agent
and corrected in the Prospectus (excluding documents
incorporated by reference therein) or the Prospectus as
then amended or supplemented (excluding documents
incorporated by reference therein).
(b) Each Agent will indemnify and hold
harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in
connection with investigating or defending any such
action or claim 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; provided that, where the omission so to notify
the indemnifying party shall have prejudiced such party
in any material respect, such party shall be relieved
from any liability which it may have to any indemnified
party under such subsection (a) or (b). 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 hereunder
(whether or not the indemnified party is an actual or
potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii)
does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in
this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by
the Company on the one hand and each Agent on the other
from the offering of the Securities to which such, loss,
claim, damage or liability (or action in respect thereof)
relates. 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 each Agent on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and each Agent on the other shall
be deemed to be in the same proportion as the total net
proceeds from the sale of such Securities (before
deducting expenses) received by the Company bear to the
total commissions or discounts received by such Agent in
respect thereof. 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 by any Agent on the other and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and each Agent agree that it would
not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata
allocation (even if all Agents were treated as one entity
for such purpose) or by any other method of allocation
which does not take account of the equitable
considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of
this subsection (d), no Agent shall be required to
contribute any amount in excess of the amount by which
the total price at which the applicable Securities
distributed by such Agent to the public were offered by
such Agent to the public exceeds the amount of any
damages which such Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of
the Agents under this subsection (d) to contribute are
several in proportion to their respective purchases made
by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are
not joint.
(e) The obligations of the Company under this
Section 7 shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be
in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company
and to each person, if any, who controls the Company
within the meaning of the Act.
8. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing
the other obligations of such Agent hereunder (other than
in respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise) is acting
solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was
solicited by such Agent and has been accepted by the
Company, but such Agent shall not have any liability to
the Company in the event such purchase is not consummated
for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose
offer it has accepted, the Company shall (i) hold each
Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be
entitled in connection with such sale.
9. The respective indemnities, agreements,
representations, warranties and other statements by any
Agent and the Company set forth in or made 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 Agent or
any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the
Company, and shall survive each delivery of and payment
for any of the Securities.
10. The provisions of this Agreement relating
to the solicitation of offers to purchase Securities from
the Company may be suspended or terminated at any time by
the Company as to any Agent or by any Agent as to such
Agent upon the giving of written notice of such
suspension or termination to such Agent or the Company,
as the case may be. In the event of any such termination
or suspension, no party will have any liability, duty or
obligation to any other party hereto, except that (x)
this Agreement shall remain in full force and effect with
respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall
remain in full force and effect with respect to the
rights and obligations of any party which have previously
accrued or which relate to Securities which are already
issued, agreed to be issued or the subject of a pending
offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full
force and effect insofar as the fourth paragraph of
Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided
herein or in the Administrative Procedure, all
statements, requests, notices and advices hereunder shall
be in writing, or by telephone if promptly confirmed in
writing, to Xxxxxxx, Xxxxx & Co. shall be sufficient in
all respects when delivered or sent by facsimile
transmission or registered mail to 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (212)
902-4103, Attention: Registration Department; and if to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated shall
be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to Xxxxxxx
Xxxxx World Headquarters, North Tower, World Financial
Center, New York, New York, 10281-1310, 10th Floor,
Facsimile Transmission No. (000) 000-0000, Attention: MTN
Product Management; and if to the Company shall be
sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to it, at its
address set forth in the Prospectus.
12. This Agreement and any Terms Agreement
shall be binding upon, and inure solely to the benefit
of, each Agent and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof,
the officers and directors of the Company and any person
who controls any Agent or the Company, and their
respective personal representatives, successors and
assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement or any Terms
Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor
or assign by reason of such purchase.
13. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the
term "business day" shall mean any day when the office of
the Commission in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may
be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which
shall be deemed to be an original, but all of such
respective counterparts shall together constitute one and
the same instrument.
16. This Agreement may be amended or
supplemented if, but only if, such amendment or
supplement is in writing and is signed by the Company and
each Agent; provided that the Company may from time to
time, on 15 days prior written notice to the Agents but
without the consent of any Agent, amend this Agreement to
add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on substantially the
same terms and conditions as the other Agents that are
parties hereto. Each Agent shall sign any amendment or
supplement giving effect to the addition of any such firm
as an Agent under this Agreement or shall terminate the
provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company
pursuant to Section 10 with respect to such Agent.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a
binding agreement between the Company and each of you in
accordance with its terms.
Very truly yours,
THE XXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________
Xxxxxxx X. Xxxxxx
Vice President and
Chief Financial Officer
Accepted in New York, New York,
as of the date hereof:
/s/ Xxxxxxx, Xxxxx & Co.
_________________________________
(Xxxxxxx, Sachs & Co.)
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
_____________________________
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
ANNEX I
THE XXXX CORPORATION
Medium-Term Notes, Series A
Terms Agreement
___________, 1997
[Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209]
Dear Sirs:
The Xxxx Corporation (the "Company") proposes,
subject to the terms and conditions stated herein and in
the Distribution Agreement, dated October 20, 1997 (the
"Distribution Agreement"), between the Company on the one
hand and Xxxxxxx, Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Agents"), on the other,
to issue and sell to [Xxxxxxx, Sachs & Co.] [Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] the
securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company, of
offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if such
provision had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall
make any party hereto an agent of the Company or make
such party subject to the provisions therein relating to
the solicitation of offers to purchase Securities from
the Company, solely by virtue of its execution of this
Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement,
except that each representation and warranty in Section 1
of the Distribution Agreement which makes reference to
the Prospectus shall be deemed to be a representation and
warranty as of the effective date of the Registration
Statement (as defined in the Distribution Agreement) in
relation to the Prospectus (as defined in the
Distribution Agreement), and also a representation and
warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to
relate to the Purchased Securities.
An amendment to the Registration Statement, or
a supplement to the Prospectus, as the case may be,
relating to the Purchased Securities, in the form
heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth
herein and in the Distribution Agreement incorporated
herein by reference, the Company agrees to issue and sell
to [Xxxxxxx, Sachs & Co.] [Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated] and [Xxxxxxx, Sachs & Co.] [Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] agree[s] to
purchase from the Company the Purchased Securities, at
the time and place, in the principal amount and at the
purchase price set forth in the Schedule hereto.
The Company agrees that from the date of this
Terms Agreement by [Xxxxxxx, Sachs & Co.] [Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated] to purchase
Securities as principal and continuing to and including
the earlier of (i) the termination of the trading
restrictions for the Securities purchased hereunder, as
notified to the Company by such Agent[s] and (ii) the
related Time of Delivery, the Company will not, without
the prior written consent of such Agent[s], offer, sell,
contract to sell or otherwise dispose of any debt
securities of the Company which both mature more than 9
months after such Time of Delivery and are substantially
similar to the Securities.
Defined terms used herein and not defined
herein shall have the meaning given such terms in the
Distribution Agreement.
If the foregoing is in accordance with your
understanding, please sign and return to us three (3)
counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those
provisions of the Distribution Agreement incorporated
herein by reference, shall constitute a binding agreement
between you and the Company.
THE XXXX CORPORATION
By:_____________________
Name:
Title:
Accepted:
[_______________________________]
(Xxxxxxx, Xxxxx & Co.)
[XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_____________________________]
Name:
Title:
Schedule to Annex I
Title of Purchased Securities:
[[ %] Medium-Term Notes, Series A]
Aggregate Principal Amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by [Xxxxxxx, Sachs & Co.] [Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated]
% of the principal amount of the Purchased
Securities[, plus accrued interest from
to ] [and accrued amortization, if any,
from to ]
Method of and Specified Funds for Payment of Purchase
Price:
[By certified or official bank check or checks,
payable to the order of the Company, in [[New
York] Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified
by the Company in [next day] [immediately
available] funds]]
Indenture:
Indenture, dated as of October 20, 1997 between
the Company and Citibank, N.A., as Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate [and Formula]:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the
Distribution Agreement shall be delivered as a
condition to the Closing:
[(l) The opinion or opinions of counsel to the
Agents referred to in Section 4(h).]
[(2) The opinions of counsel to the Company
referred to in Sections 4(i) and 4(j).]
[(4) The accountants' letter referred to in
Section 4(k).]
[(5) The officers' certificate referred to in
Section 4(l).]
Other Provisions:
ANNEX II
The Xxxx Corporation
Administrative Procedure
This Administrative Procedure relates to the
Securities defined in the Distribution Agreement, dated
October 20, 1997 (the "Distribution Agreement"), between The
Xxxx Corporation (the "Company") and Xxxxxxx, Sachs & Co.
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(together, the "Agents"), to which this Administrative
Procedure is attached as Annex II. Defined terms used
herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture.
The procedures to be followed with respect to the
settlement of sales of Securities directly by the Company to
purchasers solicited by an Agent, as agent, are set forth
below. Part I describes procedures of general applicability
with respect to such Securities. Part II below describes
procedures specifically and exclusively applicable (any
procedure in Part I below to the contrary notwithstanding)
to such Securities which are either Global Certificates or
Book-Entry Securities (each as defined below). The terms
and settlement details related to a purchase of Securities
by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution
Agreement, unless the Company and such Agent otherwise agree
as provided in Section 2(b) of the Distribution Agreement,
in which case the procedures to be followed in respect of
the settlement of such sale will be as set forth below. An
Agent, in relation to a purchase of a Security by a
purchaser solicited by such Agent, is referred to herein as
the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a
Terms Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of
those persons with whom such Agent is to communicate
regarding offers to purchase Securities and the related
settlement details.
Unless otherwise specified in the applicable
Pricing Supplement, each Security will be issued only in
fully registered form and will be initially represented by
either a permanent global certificate (a "Global
Certificate") delivered to the Trustee, as agent for The
Depository Trust Company (the "Depository") or a certificate
(a "Definitive Certificate") delivered to a person
designated by an Agent. Each security which is represented
by a Global Certificate is referred to herein as a "Book-
Entry Security" (it being understood that only such Global
Certificate -- and not any such Book-Entry Security
represented thereby -- constitutes a "Security" under the
Indenture).
Pursuant to Sections 301 and 1002 of the
Indenture, the Company has appointed Citibank, N.A. as
Paying Agent (the "Paying Agent") and as Calculation Agent
(the "Calculation Agent") for the Securities. In addition,
the Company has appointed Citibank, N.A. as its agent (the
"Issuing Agent") in connection with certain procedures to be
followed with respect to the settlement of sales of
Securities, as set forth herein.
PART I: PROCEDURES OF APPLICABILITY TO BOTH
CERTIFICATED SECURITIES AND BOOK-
ENTRY SECURITIES
Posting Rates by the Company:
The Company and the Agents will discuss from time
to time the rates of interest per annum to be borne by and
the maturity of Securities that may be sold as a result of
the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for
an offering period ("posting"). If the Company decides to
change already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by
telephone or other appropriate means of all reasonable
offers to purchase Securities, other than those rejected by
such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in
part. Each Agent also may make offers to the Company to
purchase Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Securities
and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent
or Purchasing Agent, as the case may be, of its acceptance
or rejection of an offer to purchase Securities. If the
Company accepts an offer to purchase Securities, it will
confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information
to the Company by Selling Agent:
After the acceptance of an offer by the Company,
the Selling Agent or Purchasing Agent, as the case may be,
will communicate the following details of the terms of such
offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal amount of Securities to be
purchased;
(2) Identification as a Fixed Rate Security,
Floating Rate Security or Zero Coupon
Security;
(3) If a Fixed Rate Security, the interest rate
and the initial interest payment date;
(4) Maturity Date;
(5) Specified Currency and, if the Specified
Currency is other than U.S. dollars, the
applicable Exchange Rate for such Specified
Currency and the Exchange Rate Agent;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing
Agent's discount, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a Security is redeemable by the Company,
such of the following as are applicable:
(i) Redemption Commencement Date,
(ii) Redemption Prices (% of par) and
Redemption Periods,
(iii) The Redemption Date and the Redemption
Price, and
(iv) Amount (% of par) that the Redemption
Price shall decline (but not below par)
on each anniversary of the Redemption
Commencement Date;
(v) The Make-Whole Premium, if any;
(11) If a Security is to be repaid at the
option of the Holder, the date on or after
which the Security is to be repaid, the
Repayment Price and additional provisions,
if any;
(12) If a Floating Rate Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Interest Rate,
(v) Minimum Interest Rate,
(vi) Initial Interest Rate,
(vii) Interest Rate Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) If an Amortizing Security, the
amortization provisions, formula and the
amortization schedule;
(14) If the amount of principal payable on a
Security will be determined by reference
to an index or formula, a full description
of the index or formula;
(15) If an OID Note, the total amount of OID,
the Yield to Maturity and the initial
accrual period of OID;
(16) Name, address and taxpayer identification
number of the registered owner;
(17) Denomination of certificates to be
delivered at settlement;
(18) Book-Entry Security or Certificated
Security; and
(19) Any other applicable terms.
Preparation of Pricing Supplement by the Company:
If the Company accepts an offer to purchase a
Security, it will prepare a Pricing Supplement. The Company
will supply at least ten copies of such Pricing Supplement
to the Selling Agent or Purchasing Agent, as the case may
be, not later than 5:00 p.m., New York City time, on the
business day following the date of acceptance of such offer,
or if the Company and the purchaser agree to settlement on
the date of such acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have
each Pricing Supplement filed with the Commission under Rule
424(b) not later than the close of business of the
Commission on the second business day (or such other date
Rule 424 shall require) following the date on which such
Pricing Supplement is first used. One copy of such filed
document will be sent by telecopy or overnight express (for
delivery not later than 11:00 A.M. on the Business Day next
following the trade date) to the Selling Agent or the
Purchasing Agent, as the case may be, at the following
applicable addresses: Xxxxxxx, Sachs & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No.
(000) 000-0000, Attention: Xxx Xxxxxx, Registration, 18th
Floor; Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
c/o Tritech Services, 00-X Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, Facsimile Transmission No. (000) 000-0000/5/6,
Telephone No. (000) 000-0000, Attention: Xxxxxxx Xxxxxxxxx.
Delivery of Confirmation and
Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of
a Security a written confirmation of the sale and delivery
and payment instructions. In addition, the Selling Agent
will deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including the Pricing
Supplement) in relation to such Security prior to or
together with the earlier of the delivery to such purchaser
or its agent of (a) the confirmation of sale or (b) the
Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by
a Purchasing Agent and accepted by the Company will be
settled on a date (the "Settlement Date") which is the third
business day after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a)
on any other business day after the acceptance of such offer
or (b) with respect to an offer accepted by the Company
prior to 10:00 a.m., New York City time, on the date of such
acceptance.
Instruction from the Company to
Issuing Agent for Preparation of Securities:
After receiving the Sale Information from the
Selling Agent or Purchasing Agent, as the case may be, the
Company will communicate such Sale Information to the
Issuing Agent by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Issuing Agent by
facsimile transmission or other acceptable written means to
authenticate and deliver the Securities no later than 2:15
p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 2:00 p.m.,
New York City time, on the second business day prior to the
Settlement Date unless, in the case of Securities evidenced
by a Definitive Certificate, the Settlement Date is the date
of acceptance by the Company of the offer to purchase such
Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time. The Trustee
will authenticate and deliver to the Issuing Agent each
Security in accordance with the Company's instructions.
Preparation and Delivery of Securities
by Issuing Agent and Receipt of Payment Therefor:
The Issuing Agent will prepare each Security and
appropriate receipts that will serve as the documentary
control of the transaction.
In the case of a sale of Securities to a purchaser
solicited by an Agent, the Issuing Agent will, by 2:15 p.m.,
New York City time, on the Settlement Date, deliver the
Securities to the Selling Agent for the benefit of the
purchaser of such Securities against delivery by the Selling
Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Securities in
immediately available funds to the Company in an amount
equal to the issue price of the Securities less the Selling
Agent's commission; provided that the Selling Agent reserves
the right to withhold payment for which it has not received
funds from the purchaser. The Company shall not use any
proceeds advanced by a Selling Agent to purchase securities
or carry any securities in violation of Regulations G, T, U
or X of the Federal Reserve Board or otherwise in violation
of law.
In the case of a sale of Securities to a
Purchasing Agent, the Issuing Agent will, by 2:15 p.m., New
York City time, on the Settlement Date, deliver the
Securities to the Purchasing Agent against delivery by the
Purchasing Agent of a receipt therefor. On the Settlement
Date the Purchasing Agent will deliver payment for such
Securities in immediately available funds to the Company in
an amount equal to the issue price of the Securities less
the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent)
fails to make payment to the Selling Agent for a Security or
the Selling Agent fails to make payment to the Company, the
Selling Agent will promptly notify the Trustee and the
Company thereof by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Selling Agent will immediately return the Security to
the Issuing Agent. Immediately upon receipt of such
Security by the Issuing Agent, the Company will return to
the Selling Agent an amount equal to the amount previously
paid to the Company in respect of such Security. The
Company will reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period
when they were credited to the account of the Company.
The Issuing Agent will cancel the Security in
respect of which the failure occurred, make appropriate
entries in its records and, unless otherwise instructed by
the Company, destroy the Security.
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY
SECURITIES AND GLOBAL CERTIFICATES
In connection with the qualification of Book-Entry
Securities for eligibility in the book-entry system
maintained by the Depository, the Trustee and the Paying
Agent will perform the custodial, document control and
administrative functions described below, in accordance with
their respective obligations under a Letter of
Representations from the Company and the Trustee to the
Depository, dated October 20, 1997, and a Medium-Term Note
Certificate Agreement, dated October 31, 1988, between
Citibank, N.A. and the Depository (the "Certificate
Agreement"), and the obligations of the Trustee as a
participant in the Depository, including the Depository's
Same-Day Funds Settlement System ("SDFS"). It is understood
that the ownership interests of purchasers of Book-Entry
Securities will be credited to the book-entry accounts of
one or more participants in the Depository (each a
"Participant") in accordance with the Depository's customary
practices and reflected in the records of such Participants
or one or more indirect Participants in the Depository
designated by such purchasers in accordance with the
arrangements between such purchasers and such Participants
and indirect participants. As used in this Part II, the
term "Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or
obligated by law or executive order to close.
Issuance: All Fixed Rate Securities which are
Book-Entry Securities and have the
same Original Issue Date,
redemption or repayment provisions,
Interest Payment Dates, interest
rate, interest payment periods and
Stated Maturity (collectively, the
"Fixed Rate Terms") will be
represented initially by a single
Global Certificate in fully
registered form without coupons;
all Floating Rate Securities which
are Book-Entry Securities and have
the same Original Issue Date,
redemption or repayment provisions,
Interest Payment Dates, interest
payment periods, Interest Rate
Basis, Initial Interest Rate, Index
Maturity, Spread or Spread
Multiplier, if any, Minimum
Interest Rate, if any, Maximum
Interest Rate, if any, and Stated
Maturity (collectively, the
"Floating Rate Terms") will be
represented initially by a single
Global Certificate in fully
registered form without coupons;
and all Zero Coupon Securities
which are Book-Entry Securities and
have the same Original Issue Date,
redemption or repayment provisions,
Yield to Maturity, Specified
Currency and Stated Maturity
(collectively, the "Zero Coupon
Terms") will be represented
initially by a single Global
Certificate in fully registered
form without coupons.
Identification: The Company has arranged with the
CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP
Service Bureau") for the
reservation of approximately 900
CUSIP numbers which have been
reserved for future assignment and
relating to Book-Entry Securities,
and the Company has delivered to
the Issuing Agent and the
Depository such list of such CUSIP
numbers. The Issuing Agent will
assign CUSIP numbers to Global
Certificates representing Book-
Entry Securities as described below
under Settlement Procedure C. The
Depository will notify the CUSIP
Service Bureau periodically of the
CUSIP numbers that the Company has
assigned to Global Certificates
representing Book-Entry Securities.
The Trustee will notify the Company
at any time when fewer than 100 of
the reserved CUSIP numbers remain
unassigned to Global Certificates
representing Book-Entry Securities,
and, if it deems necessary, the
Company will reserve additional
CUSIP numbers for assignment to
Global Certificates representing
Book-Entry Securities. Upon
obtaining such additional CUSIP
numbers, the Company will deliver a
list of such additional numbers to
the Issuing Agent and the
Depository. Book-Entry Securities
having an aggregate principal
amount in excess of $200,000,000
and otherwise required to be
represented by the same Global
Certificate will instead be
represented by two or more Global
Certificates which shall all be
assigned the same CUSIP number.
Registration: Each Global Certificate will be
registered in the name of Cede &
Co., as nominee for the Depository,
on the Security Register maintained
by the Trustee under the Indenture.
On the first Business Day of each
month, the Trustee will deliver to
the Company a written statement
indicating the total principal
amount of Outstanding Book-Entry
Securities as of the immediately
preceding Business Day.
Transfers: Transfers of interests in a Book-
Entry Security will be effected in
accordance with arrangements in
effect between Participants (and in
certain cases, one or more indirect
participants in the Depository) and
the beneficial transferors and
beneficial transferees of such
Book-Entry Security, and the
interests of Participants therein
will be reflected as appropriate by
book entries made by the
Depository.
Exchanges: The Issuing Agent may deliver to
the Depository and the CUSIP
Service Bureau at any time a
written notice specifying (a) the
CUSIP numbers of two or more Global
Certificates (i) having the same
Fixed Rate Terms, Floating Rate
Terms or Zero Coupon Terms, as the
case may be (except that Original
Issue Dates need not be the same),
(ii) for which interest (if any)
has been paid to the same date and
(iii) which otherwise constitute
Securities of the same series and
tenor under the Indenture; (b) a
date, occurring at least 30 days
after such written notice is
delivered and at least 30 days
before the next Interest Payment
Date (if any) for such Book-Entry
Securities, on which such Global
Certificates shall be exchanged for
a single replacement Global
Certificate; and (c) a new CUSIP
number, obtained from the Company,
to be assigned to such replacement
Global Certificate. Upon receipt
of such a notice, the Depository
will send to its participants
(including the Issuing Agent) a
written reorganization notice to
the effect that such exchange will
occur on such date. Prior to the
specified exchange date, the
Issuing Agent will deliver to the
CUSIP Service Bureau written notice
setting forth such exchange date
and the new CUSIP number and
stating that, as of such exchange
date, the CUSIP numbers of the
Global Certificates to be exchanged
will no longer be valid. On the
specified exchange date, the
Issuing Agent will exchange such
Global Certificates for a single
Global Certificate authenticated by
the Trustee and bearing the new
CUSIP number, and the CUSIP numbers
of the exchanged Global
Certificates will, in accordance
with CUSIP Service Bureau
procedures, be retired and not
reassigned. Notwithstanding the
foregoing, if the Global
Certificates to be exchanged exceed
$200,000,000 in aggregate principal
amount, one replacement Global
Certificate will be authenticated
and issued to represent each
$200,000,000 of principal amount of
the exchanged Global Certificates
and an additional Global
Certificate will be authenticated
and issued to represent any
remaining principal amount of such
Global Certificates (see
"Denominations" below).
Denominations: Book-Entry Securities will be
issued in denominations of $1,000
principal amount (or the
approximate equivalent in foreign
currencies, currency units or
composite currencies) and any
larger denomination which is an
integral multiple thereof. Global
Certificates will be denominated in
principal amounts not in excess of
$200,000,000. If one or more Book-
Entry Securities having an
aggregate principal amount in
excess of $200,000,000 would, but
for the preceding sentence, be
represented by a single Global
Certificate, then one Global
Certificate will be issued to
represent each $200,000,000
principal amount of such Book-Entry
Security or Book-Entry Securities
and an additional Global
Certificate will be issued to
represent any remaining principal
amount of such Book-Entry Security
or Book-Entry Securities. In such
a case, each of the Global
Certificates representing such
Book-Entry Security or Securities
shall be assigned the same CUSIP
number.
Interest: General. The Depository will
arrange for each pending deposit
message described under Settlement
Procedure C below to be transmitted
to Standard & Poor's, which will
use the message to include certain
information regarding the related
Book-Entry Notes in the appropriate
daily bond report published by
Standard & Poor's.
Notice of Interest Payments and
Regular Record Dates. On the first
Business Day of January, April,
July and October of each year, the
Paying Agent will deliver to the
Company and to the Dividend
Department of the Depository a
written list of Regular Record
Dates and Interest Payment Dates
that will occur during the
six-month period beginning on such
first Business Day with respect to
Global Certificates representing
Book-Entry Securities which are
Floating Rate Notes. Promptly
after each Interest Determination
Date for Book-Entry Securities
which are Floating Rate Notes, the
Calculation Agent will notify
Standard & Poor's of the interest
rates determined on such Interest
Determination Date.
Payments of Principal
and Interest: Payments of Interest Only.
Promptly after each Regular Record
Date, the Paying Agent will deliver
to the Company and the Dividend
Department of the Depository a
written notice specifying by CUSIP
number the amount of interest (if
any) to be paid on each Global
Certificate representing Book-Entry
Securities on the following
Interest Payment Date (other than
an Interest Payment Date coinciding
with the Maturity of such
Certificate) and the total of such
amounts. The Depository will
confirm the amount payable (if any)
on each Global Certificate
representing Book-Entry Securities
on such Interest Payment Date by
reference to the daily bond reports
published by Standard & Poor's. On
such Interest Payment Date the
Company will pay to the Paying
Agent, and the Paying Agent in turn
will pay to the Depository, such
total amount of interest due (other
than at Maturity of such
Certificate), at the times and in
the manner set forth below under
"Manner of Payment". If an
Interest Payment Date for a Book-
Entry Note is not a Business Day,
the payment due on such day shall
be made on the next succeeding
Business Day and no interest shall
accrue on such payment for the
period from and after such Interest
Payment Date.
Payments at Maturity or upon
Redemption or Repayment. On or
about the first Business Day of
each month, the Paying Agent will
deliver to the Company and the
Depository a written list of
principal, premium, if any, and
interest to be paid on each Global
Certificate representing Book-Entry
Securities maturing either at
Stated Maturity or on a Redemption
Date or a Repayment Date
("Maturity") in the following
month. The Paying Agent, the
Company and the Depository will
confirm the amounts of such
principal, premium (if any) and
interest payments with respect to
each such Global Certificate
representing Book-Entry Securities
on or about the fifth Business Day
preceding the Maturity of such
Global Certificate representing
Book-Entry Securities. At such
Maturity, the Company will pay to
the Paying Agent, and the Paying
Agent in turn will pay to the
Depository, the principal amount of
such Global Certificate
representing Book-Entry Securities,
together with interest and premium,
if any, due at such Maturity, at
the times and in the manner set
forth below under "Manner of
Payment". Promptly after payment
to the Depository of the principal,
interest and premium, if any, due
at the Maturity of all Book-Entry
Securities represented by a
particular Global Certificate, the
Paying Agent will deliver to the
Trustee for cancellation such
Global Certificate.
Manner of Payment. The total
amount of principal, premium and
interest due on Global Securities
representing Book-Entry Securities
on any Interest Payment Date or at
Maturity shall be paid by the
Company to the Paying Agent, in
funds immediately available for use
by the Trustee as of 9:30 a.m., New
York City time, on such date. The
Company will make such payment on
such Global Certificates
representing Book-Entry Securities
by instructing the Paying Agent to
withdraw funds from an account
maintained by the Company at the
Paying Agent. The Company will
confirm such instructions in
writing to the Paying Agent. For
principal payments at Maturity,
prior to 10:00 a.m., New York City
time, on such Maturity or as soon
as possible thereafter after
receipt of such funds from the
Company, the Paying Agent will pay
by separate wire transfer (using
Fedwire message entry instructions
in a form previously specified by
the Depository) to an account at
the Federal Reserve Bank of New
York previously specified by the
Depository, in funds available for
immediate use by the Depository,
each payment of interest, principal
and premium, if any, due on Global
Certificates representing Book-
Entry Certificates on such date;
and for interest payments, the
Paying Agent will pay the
Depository in same-day funds on the
Interest Payment Date in accordance
with existing arrangements between
the Paying Agent and the
Depository. Thereafter on each
such date, the Depository will pay,
in accordance with its SDFS
operating procedures then in
effect, such amounts in funds
available for immediate use to the
respective Participants in whose
names such Book-Entry Securities
are recorded in the book-entry
system maintained by the
Depository. Once payment has been
made to the Depository, neither the
Company, the Trustee nor the Paying
Agent shall have any responsibility
or liability for the payment by the
Depository of the principal of, or
premium, if any, or interest on,
the Book-Entry Securities to such
Participants.
Withholding Taxes. The amount of
any taxes required under applicable
law to be withheld from any
interest payment on a Book-Entry
Security will be determined and
withheld by the Participant,
indirect participant in the
Depository or other Person
responsible for forwarding payments
and materials directly to the
beneficial owner of such Book-Entry
Security, or as applicable law may
otherwise require.
Settlement Procedures: Settlement Procedures with regard
to each Book-Entry Security sold by
each Agent, as agent of the
Company, will be as follows:
A. After the acceptance of an
offer by the Company with
respect to a Book-Entry
Security, the Selling Agent or
Purchasing Agent, as the case
may be, will communicate the
following details of the terms
of such offer (the "Book-Entry
Sale Information") to the
Company by telephone confirmed
in writing or by facsimile
transmission or other
acceptable written means:
(1) Principal amount of the
Book-Entry Security to be
purchased;
(2) Identification as a Fixed
Rate Security, Floating
Rate Security or Zero
Coupon Security;
(3) If a Fixed Rate Security,
the interest rate and the
initial interest payment
date;
(4) Maturity Date;
(5) Specified Currency and,
if the Specified Currency
is other than U.S.
dollars, the applicable
Exchange Rate for such
Specified Currency and
the Exchange Rate Agent;
(6) Issue Price;
(7) Selling Agent's
commission or Purchasing
Agent's discount, as the
case may be;
(8) Net proceeds to the
Company;
(9) Settlement Date;
(10) If a redeemable Security,
such of the following as
are applicable:
(i) Redemption
Commencement Date,
(ii) Redemption Prices (%
of par) and
Redemption Periods,
(iii) the Redemption Date
and the Redemption
Price, and
(iv) Amount (% of par)
that the Redemption
Price shall decline
(but not below par)
on each anniversary
of the Redemption
Commencement Date,
(v) The Make-Whole
Premium, if any;
(11) If a Security is to be
repaid at the option of
the Holder, the date on
or after which the
Security is to be repaid,
the Repayment Price and
additional provisions, if
any;
(12) If a Floating Rate
Security, such of the
following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread
Multiplier,
(iv) Maximum Interest
Rate,
(v) Minimum Interest
Rate,
(vi) Initial Interest
Rate,
(vii) Interest Rate Reset
Dates,
(viii) Calculation Dates,
(ix) Interest
Determination Dates,
(x) Interest Payment
Dates,
(xi) Regular Record
Dates, and
(xii) Calculation Agent;
(13) If an Amortizing
Security, the
amortization provisions
formula and the
amortization schedule;
(14) If the amount of
principal payable on a
Security will be
determined by reference
to an index or formula, a
full description of such
index or formula;
(15) If an OID Note, the total
amount of OID, the Yield
to Maturity and the
initial accrual period of
OID;
(16) The taxpayer
identification number of
the purchaser;
(17) Identification numbers of
the participant accounts
maintained by the
Depository on behalf of
such Agent; and
(18) Any other applicable
terms.
B. Upon receiving the Book-Entry
Sale Information from the
Selling Agent or the
Purchasing Agent, as the case
may be, the Issuing Agent will
assign a CUSIP number to the
Global Certificate
representing the Book-Entry
Security and the Company and
will advise the Issuing Agent
by facsimile or electronic
transmission of the Book-Entry
Sale Information received from
the Selling Agent or the
Purchasing Agent, as the case
may be, and the name of such
Agent.
C. The Trustee will enter through
the Depository Terminal
System, a pending deposit
message (the form of which has
been previously furnished to
the Issuing Agent by the
Depository) specifying the
following settlement
information, which information
will be communicated to the
Depository, such Agent and
Standard & Poor's:
1. Book-Entry Sale
Information (as set forth
in Settlement Procedure
A).
2. Identification as a Fixed
Rate Security, Floating
Rate Security or Zero
Coupon Security.
3. Initial Interest Payment
Date for such Security,
number of days by which
such date succeeds the
related record date for
Depository purposes (or,
in the case of Floating
Rate Notes which reset
daily or weekly, the date
five calendar days
preceding such Initial
Interest Payment Date)
and, if then calculable,
the amount of interest
payable on such Initial
Interest Payment Date
(which amount shall have
been confirmed by the
Trustee).
4. CUSIP number of the
Global Certificate
representing such Book-
Entry Security.
5. Whether such Global
Certificate will
represent any other Book-
Entry Securities issued
or to be issued (to the
extent then known).
6. Whether such Note is an
Amortizing Note (by an
appropriate notation in
the comments field of
DTC's Participant
Terminal System).
D. The Company will instruct the
Issuing Agent by facsimile
transmission or other
acceptable written means to
complete and authenticate such
Global Certificate, and to
register such Global
Certificate in the name of
Cede & Co., as nominee of the
Depository.
E. The Issuing Agent will
complete and authenticate the
Global Certificate
representing such Book-Entry
Security and register such
Global Certificate in the name
of Cede & Co., as nominee of
the Depository. The Trustee
will take delivery thereof as
agent for the Depository.
F. The Depository will credit
such Book-Entry Security to
the participant account of the
Issuing Agent maintained by
the Depository.
G. The Issuing Agent will enter
an SDFS deliver order through
the Depository's Participant
Terminal System instructing
the Depository (i) to debit
such Book-Entry Security to
the Issuing Agent's
participant account and credit
such Book-Entry Security to
the participant account of the
Selling Agent or the
Purchasing Agent, as the case
may be, maintained by the
Depository and (ii) to debit
the settlement account of the
Selling Agent or the
Purchasing Agent, as the case
may be, and credit the
settlement account of the
Issuing Agent maintained by
the Depository, in an amount
equal to the price of such
Book-Entry Security less such
Agent's commission or
discount, as the case may be.
Any entry of such a deliver
order shall be deemed to
constitute a confirmation by
the Trustee and the Issuing
Agent to the Depository that
(i) the Global Certificate
representing such Book-Entry
Security has been issued and
authenticated and (ii) the
Issuing Agent is holding such
Global Certificate as agent of
the Depository pursuant to the
Certificate Agreement.
H. The Selling Agent or the
Purchasing Agent, as the case
may be, will enter an SDFS
deliver instruction through
the Depository's Participant
Terminal System instructing
the Depository (i) to debit
such Book-Entry Security to
the participant account of
such Agent and credit such
Book-Entry Security to the
participant accounts of the
Participants with respect to
such Book-Entry Security
maintained by the Depository
and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of such
Agent maintained by the
Depository in an amount equal
to the price of such Book-
Entry Security.
I. Transfers of funds in
accordance with SDFS deliver
orders described in Settlement
Procedures G and H will be
settled in accordance with
SDFS operating procedures in
effect on the Settlement Date.
J. The Issuing Agent will credit
to an account of the Company
maintained at the Issuing
Agent funds available for
immediate use in the amount
transferred to the Issuing
Agent in accordance with
Settlement Procedure G.
K. The Issuing Agent will send a
report from time to time by
first-class mail to the
Company setting forth the
principal amount of Global
Certificates representing the
Book-Entry Securities
Outstanding as of the related
Settlement Date after giving
effect to such transaction and
all other offers to purchase
Securities of which the
Company has advised the
Issuing Agent but which have
not yet been settled.
L. The Selling Agent or the
Purchasing Agent, as the case
may be, will confirm the
purchase of such Book-Entry
Security to the purchaser
either by transmitting to the
Participants with respect to
such Book-Entry Security a
confirmation order through the
Depository's Participant
Terminal System or by mailing
a written confirmation to such
purchaser.
M. Notwithstanding the foregoing,
the Selling Agent shall in all
cases take the actions
described under the caption
"Delivery of Confirmation and
Prospectus to Purchaser by
Selling Agent" in Part I of
this Administrative Procedure,
at the time or times specified
under such caption for such
actions.
Settlement Procedures
Timetable: For orders of Book-Entry Securities
accepted by the Company, Settlement
Procedures "A" through "L" set
forth above shall be completed as
soon as possible, but not later
than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
A 11:00 a.m. on the
trade date
B 12:00 Noon on the
trade date
C 2:00 p.m. on the
trade date
D 3:00 p.m. on the
Business Day before
Settlement Date
E 9:00 a.m. on
Settlement Date
F 10:00 a.m. on
Settlement Date
G-H 2:00 p.m. on
Settlement Date
I 4:45 p.m. on
Settlement Date
X-X 5:00 p.m. on
Settlement Date
If a sale is to be settled more
than one Business Day after the
trade date, Settlement Procedures
A, B, and C may, if necessary, be
completed at any time prior to the
specified times on the first
Business Day after the trade date.
In connection with a sale which is
to be settled more than one
Business Day after the trade date,
if the initial interest rate for a
Floating Rate Note is not known at
the time that Settlement Procedure
A is completed, Settlement
Procedures B and C shall be
completed as soon as such rates
have been determined, but no later
than 11:00 a.m. and 2:00 p.m., New
York City time, respectively, on
the second Business Day before the
Settlement Date. Settlement
Procedure I is subject to extension
of Fedwire closing deadlines and in
the other events specified in the
SDFS operating procedures in effect
on the settlement date.
If settlement of a Book-Entry
Security is rescheduled or
cancelled, the Company will as soon
as practicable give the Trustee
notice to such effect. The Trustee
will deliver to the Depository,
through the Depository's
Participant Terminal System, a
cancellation message (the form of
which has been previously furnished
to the Trustee by the Depository)
to such effect by no later than
2:00 p.m., New York City time, on
the Business Day immediately
preceding the scheduled Settlement
Date (provided the Issuing Agent
received such notice from the
Company by noon on the business day
immediately preceding the
Settlement Date) and in any case as
soon as practicable. A copy of
such message will be routed through
the facilities of the Depository to
the Selling Agent and Standard &
Poor's.
Failure to Settle: If the Issuing Agent fails to enter
in timely fashion an SDFS deliver
order with respect to any Book-
Entry Security or any portion of a
Global Certificate representing a
Book-Entry Security pursuant to
Settlement Procedure G, or if the
Selling Agent or the Purchasing
Agent, as the case may be, fails to
enter in timely fashion an SDFS
deliver order with respect to such
Book-Entry Security pursuant to
Settlement Procedure H, the Issuing
Agent may deliver to the
Depository, through the
Depository's Participant Terminal
System, as soon as practicable, a
withdrawal message (the form of
which has been previously furnished
to the Issuing Agent by the
Depository) instructing the
Depository to debit such Book-Entry
Security to the participant account
of the Issuing Agent maintained at
the Depository. A copy of such
message will be routed through the
facilities of the Depository to
such Agent. The Depository will
process the withdrawal message,
provided that such participant
account contains Book-Entry
Securities having the same Fixed
Rate Terms, Floating Rate Terms or
Zero Coupon Terms, as the case may
be, having an aggregate principal
amount that is at least equal to
the principal amount to be debited.
If withdrawal messages are
processed with respect to all the
Book-Entry Securities represented
by a particular Global Certificate,
the Issuing Agent will cancel
immediately such Global
Certificate, make appropriate
entries in its records and, unless
otherwise instructed by the
Company, destroy the Global
Certificate. The CUSIP number
assigned to such Global Certificate
shall, in accordance with CUSIP
Service Bureau procedures, be
retired and not reassigned. If
withdrawal messages are processed
with respect to only a portion of
the Book-Entry Securities
represented by a particular Global
Certificate, the Issuing Agent will
exchange such Global Certificate
for two Global Certificates
authenticated by the Trustee, one
of which shall represent the Book-
Entry Securities for which
withdrawal messages are processed
and shall be cancelled by the
Trustee and destroyed immediately
after issuance, and the other of
which shall represent the other
Book-Entry Securities previously
represented by the surrendered
Global Certificate and shall bear
the CUSIP number of the surrendered
Global Certificate. The Company
will reimburse such Agent on an
equitable basis for its loss of the
use of funds during any period when
the funds were credited to the
account of the Company in
connection with such attempted
settlement.
If the purchase price for any Book-
Entry Security is not timely paid
to the Participants with respect to
such Security by the beneficial
purchaser thereof or by a person,
including an indirect participant
in the Depository, acting on behalf
of such purchaser (other than the
Purchasing Agent, if any), such
Participants and, in turn, the
Selling Agent or the Purchasing
Agent, as the case may be, may
enter SDFS deliver orders through
the Depository's Participant
Terminal System reversing the
orders entered pursuant to
Settlement Procedures G and H,
respectively. Immediately
thereafter, the Issuing Agent will
deliver the withdrawal message and
take the related actions described
in the preceding paragraph. The
Company will reimburse such Agent
on an equitable basis for its loss
of the use of funds during any
period when the funds were credited
to the account of the Company in
connection with such attempted
settlement.
Notwithstanding the foregoing, upon
any failure to settle with respect
to any Book-Entry Security or any
portion of a Global Certificate
representing a Book-Entry Security,
the Depository may take any actions
in accordance with its SDFS
operating procedures then in
effect. In the event of a failure
to settle with respect to any Book-
Entry Security that was to have
been represented by a Global
Certificate also representing other
Book-Entry Securities, the Issuing
Agent will provide, in accordance
with Settlement Procedures D and E,
for the authentication and issuance
of a Global Certificate
representing the remaining
principal amount to have been
represented by such Global
Certificate and will make
appropriate entries in its records.
Issuing and Paying
Agents Not to Risk
Funds: Nothing herein will be deemed to
require the Issuing Agent or the
Paying Agent to risk or expend its
own funds in connection with any
payment to the Company, the Agents,
the Depository or any
securityholder, it being understood
by all parties that payments made
by the Issuing Agent or the Paying
Agent to any party will be made
only to the extent that funds are
provided to the Issuing Agent or
the Paying Agent, as the case may
be, for such purpose.
ANNEX III
Accountant's Letter
Pursuant to Section 4(k) and Section 6(e), as the case may
be, of the Distribution Agreement and in relation to a
purchase of a Security by a purchaser solicited by an Agent
(and not in relation to a purchase of a Security by an Agent
as principal) upon the receipt by the accountants of a
written opinion by the Agents' attorney stating that the
Agents have a due diligence defense under Section 11 of the
Act or of a representation letter from the Agents meeting
the requirements of paragraph 6 of SAS No. 72, "Letters for
Underwriters and Certain Other Requesting Parties", the
accountants shall furnish letters to the Agents to the
effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
and any pro forma consolidated condensed financial
statements included or incorporated in the Registration
Statement or the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations thereunder;
(ii) In their opinion, the financial statements
and any supplementary financial information and
schedules audited by them and included or incorporated
by reference in the Registration Statement or the
Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act
and the related published rules and regulations
thereunder;
(iii) They performed the procedures specified by
the American Institute Certified Public Accountants for
a review of interim financial information as described
in SAS No. 71, "Interim Financial Information", on the
unaudited condensed statements of income, condensed
balance sheets and statements of cash flows included in
the Prospectus and/or included in the Company's
quarterly report on Form 10-Q incorporated by reference
into the Prospectus; and on the basis of specified
procedures including inquiries of officials of the
Company who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed 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 published rules and
regulations, nothing came to their attention that
caused them to believe that the unaudited condensed
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations;
(iv) The unaudited selected financial information
with respect to the results of operations and financial
position of the Company for the five most recent fiscal
years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after
restatement where applicable) in the audited financial
statements for five such fiscal years which were
included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the
Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing
came to their attention as a result of the foregoing
procedures that caused them to believe that this
information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402
and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an audit in accordance with generally
accepted auditing standards, consisting of a reading of
the unaudited financial statements and other
information referred to below, a reading of the latest
available interim financial statements of the Company,
inspection of the minute books of the Company since the
date of the latest audited financial statements
included or incorporated by reference in the
Prospectus, inquiries of officials of the Company
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 statements of income,
condensed balance sheets and statements of cash
flows included in the Prospectus and/or included
or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Act and the related
published rules and regulations, or (ii) any
material modifications should be made to the
unaudited statements of income, condensed balance
sheets and statements of cash flows included in
the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in
conformity with generally accepted accounting
principles;
(B) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding
items in the unaudited 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
financial statements included or incorporated by
reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) any unaudited pro forma condensed
financial statements included or incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Act and the
published rules and regulations thereunder or the
pro forma adjustments, if any, have not been
properly applied to the historical amounts in the
compilation of those statements;
(D) as of a specified date not more than
five days prior to the date of such letter, there
have been any changes in the capital stock (other
than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-
outs of performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance
sheet included or incorporated by reference in the
Prospectus) or any increase in the long-term debt
of the Company, or any decreases in net current
assets or stockholders' equity or other items
specified by the Agents, or any increases in any
items specified by the Agents, in each case as
compared with amounts shown in the latest balance
sheet included or incorporated by reference in the
Prospectus, except in each case for changes,
increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(E) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus to the
specified date referred to in Clause (D) there
were any decreases in net sales, gross profit,
earnings from operations, earnings from continuing
operations or the total or per share amounts of
consolidated net earnings or other items specified
by the Agents, or any increases in any items
specified by the Agents, in each case as compared
with the comparable period of the preceding year
and with any other period of corresponding length
specified by the Agents, except in each case for
increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred
to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not
constituting an audit in accordance with generally
accepted auditing standards, with respect to certain
amounts, percentages and financial information
specified by the Agents which are derived from the
general accounting records of the Company, which appear
in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by
the Agents or in documents incorporated by reference in
the Prospectus specified by the Agents, and have
compared certain of such amounts, percentages and
financial information with the accounting records of
the Company and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the
Distribution Agreement as of the Commencement Date referred
to in Section 6(e) thereof and to the Prospectus as amended
or supplemented (including the documents incorporated by
reference therein) as of the date of the amendment,
supplement, incorporation or the Time of Delivery relating
to the Terms Agreement requiring the delivery of such letter
under Section 4(k) thereof in relation to the applicable
Securities for purposes of the letter delivered at the Time
of Delivery for such Securities.
