EXHIBIT 1
GENERAL XXXXX, INC.
$500,000,000
Medium-Term Notes, Series E
Distribution Agreement
February 28, 1996
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxx Xxxxx World Headquarters,
World Financial Center,
New York, New York 10281
Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BT Securities Corporation
One Bankers Trust Plaza
31st Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
General Xxxxx, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term
Notes, Series E (the "Securities") in an aggregate offering price
of up to $500,000,000, or its equivalent in another currency or
composite currency, 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 which may be oral, and confirmed in writing
by the applicable Agent (each a "Terms Agreement"), which may be
substantially in the form of Annex I hereto, relating to such
sale in accordance with Section 2(b) hereof.
This Distribution Agreement shall not be construed to create
either an obligation on the part of the Company to sell any
securities or an obligation of any of the Agents to purchase
Securities as principal.
The Securities will be issued under an indenture, dated as
of February 1, 1996 (the "Indenture"), between the Company and
First Trust of Illinois, National Association, 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 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) Registration statements on Form S-3 (Registration
No. 333-00745 and No. 33-56032) in respect of a total of
U.S. $562,470,000 aggregate offering price of debt
securities of the Company, including the Securities, have
been filed under the Securities Act of 1933, as amended (the
"Act"), with the Securities and Exchange Commission (the
"Commission") 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 prospectuses included
therein, and such registration statements in such form have
been declared effective by the Commission and no stop order
suspending the effectiveness of either registration
statement has been issued and no proceeding for that purpose
has been initiated or to the knowledge of the Company
expressly threatened by the Commission (any preliminary
prospectus included in either registration statement being
hereinafter called a "Preliminary Prospectus"; the various
parts of each 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 Form T-1, each as amended at the
time such part of such registration statement became
effective, being hereinafter collectively called the
"Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been
filed with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms
of a particular issue of the 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 therein by reference; 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 any applicable Pricing Supplement
filed in accordance with Section 4(a) hereof) in relation to
Securities sold pursuant to this Agreement, in the form
filed or transmitted for filing 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 amendment or supplement thereto,
when such documents become effective or are filed with the
Commission (and as of the date of each acceptance referred
to in Section 4(g) hereof), 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 the Statement of Eligibility of the
Trustee on Form T-1 or 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 amendments or supplements thereto 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 do not and will not, as of the
applicable effective date in case of the Registration
Statement and any amendment thereto and as of the applicable
filing date in the case of the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; provided, however, that this
representation and warranty shall not apply to the Statement
of Eligibility of the Trustee on Form T-1 or 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) The Company and its material subsidiaries, taken
as a whole, have not sustained since the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus any material loss or
interference with their business, taken as a whole, 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, other 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 decrease in the capital stock (except as a result
of repurchases of shares of common stock pursuant to the
Company's publicly announced stock repurchase program) or
increase in the principal amount of long-term debt of the
Company in excess of $50 million or any material adverse
change, or any development which the Company has reasonable
cause to believe will involve a material adverse change, in
the consolidated financial position, stockholders' equity or
results of operations of the Company and its material
subsidiaries, taken as a whole, 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 Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction
in which it owns or leases properties so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in
any such jurisdiction;
(f) The Company has authorized capital stock 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
material subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and all such shares owned directly or
indirectly by the Company are owned free and clear of all
liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized, and,
when issued and delivered pursuant to this Agreement and any
Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly
authorized by the Company and 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; the Indenture
conforms, and the Securities of any particular issuance of
Securities will conform, in all material respects to the
descriptions thereof contained in the Prospectus as amended
or supplemented to relate to such issuance of Securities;
and this Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(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 any of the material terms or provisions of, or
constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its material
subsidiaries is a party or by which the Company or any of
its material subsidiaries is bound or to which any of the
property or assets of the Company or any of its material
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation or the By-Laws of the Company or any statute
or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its material subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any 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, 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
securities or Blue Sky laws of any state or foreign
jurisdiction 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) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its material
subsidiaries is a party or of which any property of the
Company or any of its material subsidiaries is the subject
which would reasonably be expected to individually or in the
aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of
operations of the Company and its consolidated subsidiaries;
and, to the best of the Company's knowledge, no such
proceedings are expressly threatened or contemplated by
governmental authorities or expressly threatened by others;
(j) To the best of the Company's knowledge, KPMG Peat
Marwick LLP, who have certified certain financial statements
of the Company and its consolidated subsidiaries, are
independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and
(k) Immediately after any sale of Securities by the
Company hereunder or under any Terms Agreement, the
aggregate amount of Securities which shall have been issued
and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other
than such Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration
Statement.
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. The Company reserves the
right to offer Securities for sale otherwise than to or
through an Agent; provided, however, that so long as this
Agreement is in effect the Company will not appoint any
other agent for the purpose of soliciting purchases of the
Securities on a continuous basis. It is understood,
however, that if from time to time the Company is approached
by a prospective agent offering to solicit a specific
purchase of Securities, the Company may engage such agent
with respect to such specific purchase, provided that the
Agents are given notice of such purchase promptly, including
the terms thereof and a copy of any agreement setting forth
the terms of engagement of such agent by the Company, in
each case after the purchase is agreed to. Each such agent
is acting in connection with the Securities individually and
not collectively or jointly with the Agents. So long as
this Agreement shall remain in effect with respect to any
Agent, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any
debt securities with a maturity at the time of original
issuance of 9 months or more except (i) pursuant to or as
contemplated by this Agreement or any Terms Agreement, (ii)
pursuant to a private placement not constituting a public
offering under the Act or (iii) in connection with a firm
commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of
medium-term debt securities. However, the 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. 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. Upon receipt of notice from the
Company, the Agents will forthwith 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. During such period, the
Company shall not be required to comply with the provisions
of Sections 4(i), 4(j) and 4(k). Upon advising the Agents
that such solicitation may be resumed, however, the Company
shall simultaneously provide the documents required to be
delivered by Sections 4(i), 4(j) and 4(k), and the Agents
shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the
Agents. In addition, any failure by the Company to comply
with its obligations hereunder, including without limitation
its obligations to deliver the documents required by
Sections 4(i), 4(j) and 4(k), shall automatically terminate
the Agents' obligations hereunder, including without
limitation its obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities
hereunder as principal.
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 .675%
From 20 years to 30 years .750%
From more than 30 years to
less than 50 years .875%
50 years and more 1.000%
(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 that 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 a 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. The Agents may
engage the services of any other broker or dealer in
connection with the resale of the Notes purchased by them as
principal and may allow all or any portion of the discount
received in connection with such purchases from the Company
to be retained by such brokers and dealers.
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 (or, if such Security is denominated in a composite
currency, in any country issuing a currency comprising a
portion of such composite 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 Xxxxxxx, Xxxxx
& Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 11:00 a.m., New
York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement 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 amendment or supplement to the
Registration Statement or the Prospectus (A) prior to the
Commencement Date to which any Agent shall reasonably object
promptly after reasonable notice thereof or (B) 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 to which any Agent party to such Terms
Agreement or so purchasing as principal shall reasonably
object 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 fifth
business day after the date on which such Pricing Supplement
is first used; (iii) to make no amendment or supplement to
the Registration Statement or Prospectus (other than any
Pricing Supplement, any supplement relating to an offering
of securities other than the Securities, or any periodic
report filed pursuant to the Exchange Act and incorporated
by reference in 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 has become
effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates
to Securities not purchased through or by such Agent) has
been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the
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
amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the
event of the issuance of any such stop order or of any such
order preventing or suspending the use of any such
prospectus or suspending any such qualification at any time
when an Agent has purchased Securities from the Company
hereunder as principal that it has not yet resold, to use
promptly its best efforts to obtain its withdrawal;
(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
jurisdictions as such Agent may request and to comply with
such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete
the distribution or sale of the Securities; provided,
however, that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) 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), 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 forthwith); 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 securityholders
as soon as practicable, but in any event not later than
eighteen months after (i) the effective date of the
Registration Statement, (ii) the effective date of each
post-effective amendment to the Registration Statement, and
(iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Registration Statement, 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) During the period this Agreement is in effect with
respect to any Agent, to furnish to such Agent copies of all
reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as
soon as they are available, copies of any reports and
financial statements filed with the Commission or any
national securities exchange on which any class of
securities of the Company is listed (except registration
statements filed with the Commission on Form S-8 and reports
of the Company' employee benefit plans filed with the
Commission on Form 11-K); and (ii) such additional
information concerning the business and financial condition
of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with
such Agent or other agreement by such Agent to purchase
Securities as principal and continuing to and including the
later of (i) the termination of 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 have terms
which are substantially similar to the Securities which are
the subject of such Terms Agreement or other agreement;
(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 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), each time a document filed under the
Act or the Exchange Act is incorporated by reference into
the Prospectus 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 a written opinion of the General Counsel of the
Company, or other counsel for the Company satisfactory to
such Agent, dated the date of such amendment, supplement,
incorporation or 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 the opinion of such
counsel referred to in Section 6(c) hereof which was 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 opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such
counsel 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 each time the Registration Statement or the
Prospectus shall be amended or supplemented and each time
that a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, 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(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the
Company shall cause the independent certified public
accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by
reference in the Registration Statement forthwith to furnish
such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in
Section 6(d) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes
as may be necessary to reflect 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(d) hereof which was
last furnished to such Agent;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a
Pricing Supplement), each time a document filed under the
Act or the Exchange Act is incorporated by reference into
the Prospectus, and each time the Company sells Securities
to an Agent as principal pursuant to a Terms Agreement and
the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to
such Agent a certificate, dated the date of such supplement,
amendment, incorporation or 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 certificate referred to in Section 6(g) hereof which was
last furnished to such Agent are true and correct at such
date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such certificate, certificates of
the same tenor as the certificates referred to in said
Section 6(g) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such date; and
(l) To offer to any person who has agreed to purchase
Securities as the result of an offer to purchase solicited
by such Agent the right to refuse to purchase and pay for
such Securities if, on the related settlement date fixed
pursuant to the Administrative Procedure, any condition set
forth in Section 6(a), 6(e) or 6(f) hereof shall not have
been satisfied (it being understood that the judgment of
such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the
respective judgments of an Agent with respect to certain
matters referred to in such Sections 6(a), 6(e) and 6(f),
and that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under such
Sections 6(a), 6(e) and 6(f) on behalf of any such person).
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 such Agent; (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; (iii) the cost of
printing, preparing by word processor or reproducing this
Agreement, any Terms Agreement, any 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 the 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 the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any
transfer or paying agent of the Company and the fees and
disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (ix) any
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; and (x)
all other costs and expenses incident to the performance of the
Company's obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in
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 and the obligation of any Agent to purchase
Securities as principal, pursuant to any Terms Agreement or
otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and
warranties and other statements of the Company herein (and, in
the case of an obligation of an Agent 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(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at
and as of such Solicitation Time or Time of Delivery, as the case
may be, the condition that prior to such Solicitation Time 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 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 shall have been issued and no
proceeding for that purpose shall have been initiated or
expressly threatened by the Commission; and (iii) all
requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(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 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) The General Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, shall
have furnished to such Agent his, her or their written
opinion, 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 power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus as amended or
supplemented;
(ii) The Company has authorized capital stock as set
forth in the Prospectus as amended or supplemented and
all of the issued shares of capital stock of the
Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and
other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
consolidated subsidiaries is a party or to which any
property of the Company or any of its consolidated
subsidiaries is the subject which would reasonably be
expected to individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations
of the Company and its consolidated subsidiaries; and,
to the best of such counsel's knowledge, no such
proceedings are expressly threatened or contemplated by
governmental authorities or expressly threatened by
others;
(iv) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by
the Company;
(v) The Securities have been duly authorized and, when
duly executed, authenticated, issued and delivered by
the Company, will constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture; and the Indenture conforms
and the Securities will conform in all material
respects to the descriptions thereof in the Prospectus
as amended or supplemented;
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee,
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 has been duly qualified under the Trust
Indenture Act;
(vii) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of
the Securities, the Indenture, this Agreement and any
applicable Terms Agreement and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach of any of the
material terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company
or any of its consolidated subsidiaries is a party or
by which the Company or any of its consolidated
subsidiaries is bound or to which any of the property
or assets of the Company or any of its consolidated
subsidiaries is subject, nor will such action result in
any violation of the provisions of the Restated
Certificate of Incorporation, as amended, of the
Company or the By-Laws of the Company or any statute or
any order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over the Company or any of its
consolidated subsidiaries or any of their material
properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any 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 other transactions contemplated by
this Agreement, 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, registrations or
qualifications as may be required under securities or
Blue Sky laws of any state or foreign jurisdiction 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;
(ix) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and financial data and related
schedules therein, as to which such counsel need
express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied
as to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; and such counsel has no reason
to believe that any of such documents, when they became
effective or were so filed, as the case may be,
contained, in the case of a registration statement
which became effective under the Act, 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, in the case of other documents which
were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(x) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the
date of such opinion (other than the financial
statements and financial data and related schedules
therein, as to which such counsel need express no
opinion) comply as to form in all material respects
with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
although such counsel does not assume any
responsibility for the accruacy, completeness or
fairness of the statements contained in the
Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection (v) of
this Section 6(c), such counsel has no reason to
believe that, as of its effective date, the
Registration Statement or any amendment or supplement
thereto made by the Company prior to the date of such
opinion (other than the financial statements and
financial data and related schedules therein, as to
which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading
or that, as of the date of such opinion, the Prospectus
as amended or supplemented (other than the financial
statements and financial data and related schedules
therein, as to which such counsel need express no
opinion) contains an untrue statement of a material
fact or omits to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading; and such counsel does not know
of any amendment to the Registration Statement required
to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated
by reference into the Prospectus as amended or
supplemented or required to be described in the
Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by
reference or described as required.
(d) 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(j) 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
certified 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;
(e) (i) The Company and its material subsidiaries,
taken as a whole, shall not 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 their business,
taken as a whole, 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, otherthan 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 decrease in the capital stock (except as a result
of repurchases of shares of common stock pursuant to the
Company's publicly announced stock repurchase program) or
increases in long-term debt of the Company or any of its
subsidiaries in excess of $50 million or any material
adverse change, or any development which is reasonably
likely to involve a material adverse change, in the
consolidated financial position, stockholders' equity or
results of operations of the Company and its material
subsidiaries, taken as a whole, 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 reasonable
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;
(f) There shall not have occurred any of the
following: (i) a material suspension or material limitation
in trading in securities generally or in trading in
securities of the Company on the New York Stock Exchange;
(ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State
authorities; (iii) the outbreak or escalation of hostilities
directly involving the United States or the declaration by
the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in
the reasonable 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; or (iv) any downgrading in the rating accorded
the Company's long-term 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 a public announcement by any such
organization that it has under surveillance or review, with
possible negative implications, its rating of any such debt
securities; and
(g) 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(k) 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 (e) 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, 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 out of pocket
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 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
foregoing indemnity with respect to any Preliminary
Prospectuses shall not inure to the benefit of any Agent (or
to the benefit of any person controlling such Agent) from
whom the person asserting any such losses, claims, damages
or liabilities purchased Securities if such untrue statement
or omission or alleged untrue statement or omission made in
any Preliminary Prospectus is eliminated or remedied in the
Prospectus which is required to be delivered pursuant to the
Act and a factual determination has been made that a copy of
the Prospectus (excluding documents incorporated by
reference) has not been sent or delivered to such person at
or prior to the written confirmation of the sale of such
Securities to such person.
(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 out of
pocket expenses reasonably incurred by the Company in
connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel reasonably 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 out of pocket expenses, in each case
subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable
costs of investigation.
(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
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
required to be stated therein or necessary in order to make
the statements therein not misleading 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 per capita 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
out of pocket 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), an Agent shall not be
required to contribute any amount in excess of the amount by
which the total public offering price at which the
Securities purchased by or through it were sold 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 the 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 such suspension
or termination with respect to any Agent, (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 advice hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to Xxxxxxx, Xxxxx & Co.
shall be sufficient in all respects when delivered or sent by
facsimile transmission, overnight express service or certified
mail to 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile
Transmission No. (000) 000-0000, Attention: Registration
Department; and if to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated shall be sufficient in all respects
when delivered or sent by facsimile transmission, overnight
express service or certified mail to Xxxxxxx Xxxxx World
Headquarters, World Financial Center, Xxxxx Xxxxx-00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: MTN Product Management,
Facsimile Transmission No. (000) 000-0000; and if to Xxxxxx, Read
& Co. Inc. shall be sufficient in all respects when delivered or
sent by facsimile transmission, overnight express service or
certified mail to Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (212)
751-2476, Attention: Syndicate Department; and if to Xxxxxx
Xxxxxxx & Co. Incorporated shall be sufficient in all respects
when delivered or sent by facsimile transmission, overnight
express service or certified mail to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Manager - Continuously Offered Products
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx - Investment Banking Information Center
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and if to BT Securities Corporation shall be sufficient in all
respects when delivered or sent by facsimile transmission,
overnight express service or certified mail to BT Securities
Corporation, One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Xxxxxxxx Xxxxxx; and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile
transmission, overnight express service or certified mail to
General Xxxxx, Inc., Number Xxx Xxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Facsimile Transmission No. (612)
540-4925, Attention: Director, Corporate Finance.
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 normally 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 an original, but
all of such respective counterparts shall together constitute one
and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts thereof, whereupon
this letter and the acceptance by each of you shall constitute a
binding agreement between the Company and each of you in
accordance with its terms.
Very truly yours,
GENERAL XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Accepted in New York, New York,
as of the date hereof:
XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
XXXXXX, READ & CO. INC.
By: /s/ Xxxxxxx Xxxxxx
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxx
BT SECURITIES CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
ANNEX I
GENERAL XXXXX, INC.
Medium-Term Notes, Series E
Terms Agreement
______________, 19____
[Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxx Xxxxx World Headquarters,
World Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
BT Securities Corporation
One Bankers Trust Plaza
31st Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
General Xxxxx, Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution
Agreement, dated February 28, 1996 (the "Distribution
Agreement"), between the Company on the one hand and Xxxxxxx,
Xxxxx & Co., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxx, Read & Co. Inc., Xxxxxx Xxxxxxx & Co.
Incorporated and BT Securities Corporation (the "Agents") on the
other, to issue and sell to [Xxxxxxx, Sachs & Co.][,] [and]
[Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated] [and] [Xxxxxx, Read & Co. Inc.] [,] [and][Xxxxxx
Xxxxxxx & Co. Incorporated] [and] [BT Securities Corporation]
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 provisions 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 date of the Distribution Agreement in relation
to the Prospectus (as therein defined), and also a representation
and a 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.]
[,][and] [Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated] [and] [Xxxxxx, Read & Co. Inc.] [,] [and]
[Xxxxxx Xxxxxxx & Co. Incorporated] [,] [and] [BT Securities
Corporation] and [Xxxxxxx, Sachs & Co.] [,][and] [Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] [and]
[Xxxxxx, Read & Co. Inc.][and] [Xxxxxx Xxxxxxx & Co.
Incorporated] [and] [BT Securities Corporation] 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.
If the foregoing is in accordance with your understanding,
please sign and return to us three 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.
GENERAL XXXXX, INC.
By_________________________
Accepted:
[XXXXXXX, XXXXX & CO.]
By:______________________
[XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED]
By:______________________
[XXXXXX, READ & CO. INC.]
By:______________________
[XXXXXX XXXXXXX & CO. INCORPORATED]
By:______________________
[BT SECURITIES CORPORATION]
By:______________________
Schedule to Annex I
Title of Purchased Securities:
[ %] [Medium-Term Notes]
Specified Currency (if other than U.S. dollars):
Aggregate Principal Amount:
[$ or units of the Specified Currency
indicated above] [Price to Public]
Purchase Price by [Xxxxxxx, Sachs & Co.] [,] [and] [Xxxxxxx Xxxxx
& Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] [,]
[and] [Xxxxxx, Read & Co. Inc.] [,] [and][Xxxxxx Xxxxxxx & Co.
Incorporated] [and] [BT Securities Corporation]:
[ %] 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 [____________], as supplemented,
between the Company and First Trust Illinois, National
Association, as Trustee
Form of Purchased Securities:
[Registered form only] [Temporary global security, to be
followed by definitive securities in registered form] [Global
form only]
Time of Delivery:
Closing Location:
Maturity:
Denominations (if other than U.S. dollars):
Interest Rate:
[Fixed Rate Note: %]
[Floating Rate Note:
Interest Rate Basis:
Index Maturity:
Spread or Spread Multiplier:
Maximum Rate: %
Minimum Rate: %
Initial Interest Rate: %
Interest Reset Dates:
Calculation Dates:
Interest Determination Dates:
Record Dates:
Calculation Agent (if other than First Trust of Illinois,
National Association):]
Interest Payment Dates:
[months and dates]
[Indexed Note:
Indexed Currency or Commodity:
Base Rate:]
Documents to be Delivered:
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to
in Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section
4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
ANNEX II
GENERAL XXXXX, INC.
Administrative Procedure
This Administrative Procedure relates to the Securities
defined in the Distribution Agreement, dated February 28, 1996
(the "Distribution Agreement"), between General Xxxxx, Inc. (the
"Company") and Xxxxxxx, Sachs & Co., Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx, Read & Co.
Inc., Xxxxxx Xxxxxxx & Co. Incorporated and BT Securities
Corporation (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 as amended or
supplemented. To the extent any procedure set forth below
conflicts with the provisions of the Securities, the Indenture or
the Distribution Agreement, the relevant provisions of the
Securities, the Indenture and the Distribution Agreement shall
control.
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
below 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 Securities 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.
Each Security will be issued only in fully registered form
and will be represented by either a global certificate (a "Global
Certificate") delivered to the Trustee, as agent for The
Depository Trust Company (the "Depositary") and recorded in the
book-entry system maintained by the Depositary (a "Book-Entry
Note") or a certificate (a "Definitive Certificate") delivered to
a person designated by an Agent.
The Company has appointed First Trust of Illinois, National
Association as trustee under the Indenture (the "Trustee"), as
Calculation Agent (the "Calculation Agent") and as Exchange Rate
Agent (the "Exchange Rate Agent") for the Securities.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Posting Rates by 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 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 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) If a Fixed Rate Note, the interest rate;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is
other than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a Security redeemable by either the Company or a
Holder, such of the following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary
of the Redemption Commencement Date, and
(iv) the last date on which any such right of
redemption may be exercised;
(10) If a Floating Rate Note, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(11) 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;
(12) If an OID Note, the total amount of OID, the Yield to
Maturity and the initial accrual period of OID;
(13) Name, address and taxpayer identification number of the
registered owner;
(14) Denomination of certificates to be delivered at
settlement; and
(15) Global Certificate or Definitive Certificate.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Security, it
will prepare a Pricing Supplement. Provided the Selling Agent or
Purchasing Agent, as the case may be, supplies to the Company, by
facsimile transmission any information needed by the Company
prior to 5:00 p.m., New York City time, on the date of acceptance
of the offer, the Company will supply, by facsimile transmission,
a copy of the Pricing Supplement to the Selling Agent or
Purchasing Agent, as the case may be, not later than 10:00 a.m.,
New York City time, on the business day in New York following the
date of acceptance of such offer. If Xxxxxx Xxxxxxx & Co.
Incorporated is Selling Agent or Purchasing Agent, deliveries of
the Pricing Supplement should be made to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium-Term Note Trading Desk, Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopies: (000) 000-0000
In addition, if Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated is Selling Agent or Purchasing Agent, the Company
will deliver a completed Pricing Supplement, via facsimile
transmission or next day mail or to arrive no later than 11:00
a.m. on the Business Day following the trade date, to the
Presenting Agent at the following locations:
Xxxxxxx Xxxxx & Co.:
For overnight, express, or special delivery packages
only:
Tritech Services
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Prospectus Operations/Xxxxxxx Xxxxxxxxx
Tel: (000) 000-0000
For all other types of deliveries:
Tritech Services
#4 Corporate Place
Corporate Park 287
Xxxxxxxxxx, XX 00000
Attn: Prospectus Operations/Xxxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Telecopy: (000) 000-0000/2775/2776
also, for record keeping purposes, please send a copy
to:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center, Xxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: MTN Product Management
Tel: (000) 000-0000
Telecopy: (000) 000-0000
Admin. Procedures - Delivery of Certificated Notes
Xxxxxxx Xxxxx Money Markets Clearance
00 Xxxxx Xxxxxx
0xx Xxxxx
N.S.C.C. Window
Xxx Xxxx, XX 00000
Attn: Xx Xxxxxxxx
Tel: (000) 000-0000
Telecopy: (000) 000-0000
The Company will arrange to have the Pricing Supplement filed
with the Commission by electronic submission not later than the
close of business of the Commission on the fifth business day
following the date on which such Pricing Supplement is first
used.
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 (including, in the case of a Book-Entry Security, the
confirmation through the Depositary's Institutional Delivery
System) 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 Company to Trustee 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 Trustee by telephone
(confirmed in writing) or by facsimile transmission or other
acceptable electronic or written means.
The Company will instruct the Trustee by facsimile
transmission or other acceptable electronic or 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 3:00 p.m., New York City
time, on the business day prior to the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the
offer to purchase Securities in which case such instruction will
be given by the Company by 10:00 a.m., New York City time.
Preparation and Delivery of Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Security and appropriate
receipts that will serve as the documentary control of the
transaction.
With respect to Definitive Certificates, upon receiving the
Sale Information from the Selling Agent or the Purchasing Agent,
as the case may be, the Trustee will obtain a CUSIP number from
the CUSIP Service Bureau for assignment to the Definitive
Certificates representing the Notes. Such CUSIP number must be
obtained by 12:00 noon on the trade date; or, if a sale is to be
settled more than one Business Day after the trade date, by 12:00
noon on the first Business Day after such sale date; or, if a
sale of a Floating Rate Note is to be settled more than one
Business Day after the trade date and the initial interest rate
for the Floating Rate Note is not known at the time that the Sale
Information is received, by 11:00 a.m. on the second Business Day
before the Settlement Date.
In the case of a sale of Securities to a purchaser solicited
by an Agent, the Trustee 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 or carry any
margin 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 Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Securities to the Purchasing Agent
against delivery of 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, 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 Trustee. Immediately upon
receipt of such Security by the Trustee, 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 Trustee 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.
Business Day:
"Business Day" means (1) with respect to any Note, each
Monday, Tuesday, Wednesday, Thursday and Friday which, is (a) not
a day on which banking institutions in The City of New York
generally are authorized or obligated by law, regulation or
executive order to close, and (b) if the Note is denominated in a
Specified Currency other than United States dollars not a day on
which banking institutions are authorized or obligated by law,
regulation or executive order to close in the financial center of
the country issuing the Specified Currency (which in the case of
ECUs shall be Luxembourg, in which case "Business Day" shall not
include any day that is a non-ECU clearing day as determined by
the ECU Banking Association in Paris), and (2) with respect to
LIBOR Notes only, any such Business Day which is also a London
Business Day. The term "London Business Day" means (i) if the
Specified Currency is other than ECU, any day on which dealings
in such Specified Currency are transacted in the London interbank
market or (ii) if the Specified Currency is ECU, any day that
does not appear as an ECU non-settlement day on the display
designated as "ISDE" on the Xxxxxx Monitor Money Rates Service
(or a day so designated by the ECU Banking Association) or, if
ECU non-settlement days do not appear on that page (and are not
so designated), is not a day on which payments in ECU cannot be
settled in the international interbank market.
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY
SECURITIES AND GLOBAL SECURITIES
In connection with the qualification of Book-Entry
Securities for eligibility in the book-entry system maintained by
the Depositary, the Trustee will perform the custodial, document
control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to the
Depositary, dated February 28, 1996, and a Medium-Term Note
Certificate Agreement entered between the Trustee and the
Depositary (the "Certificate Agreement"), and the Trustee's
obligations as a participant in the Depositary, including the
Depositary'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 Depositary (each a
"Participant") in accordance with the Depositary's customary
practices and reflected in the records of such Participants or
one or more indirect participants in the Depositary designated by
such purchasers in accordance with the arrangements between such
purchasers and such Participants and indirect participants.
Issuance: All Fixed Rate Notes which are Book-Entry
Securities and have the same Original Issue Date, redemption
provisions, repayment provisions, Interest Payment Dates,
interest rate, interest payment periods, Specified Currency 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 Notes which
are Book-Entry Securities and have the same Original Issue Date,
redemption provisions, 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, Specified Currency 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 Notes which are Book-Entry Securities and have
the same Original Issue Date, redemption provisions, 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 reservation of approximately 900 CUSIP
numbers which have been reserved for and relating to Book-Entry
Securities, and the Company has delivered to the Trustee and the
Depositary such list of such CUSIP numbers. The Company will
assign CUSIP numbers to Book-Entry Securities as described below
under Settlement Procedure B. The Depositary will notify the
CUSIP Service Bureau periodically of the CUSIP numbers that the
Company has assigned to Book-Entry Securities. The Company will,
at any time it deems necessary, reserve additional CUSIP numbers
for assignment to Book-Entry Securities. Upon obtaining such
additional CUSIP numbers, the Company will deliver a list of such
additional numbers to the Trustee and the Depositary. Book-Entry
Securities having an aggregate principal amount in excess of
$200,000,000 will 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 Depositary, on the
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 Depositary) 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 Depositary.
Exchanges: The Trustee may deliver to the Depositary and
the CUSIP Service Bureau at any time a written notice specifying
(a) the CUSIP numbers of two or more Global Certificates for
outstanding Book-Entry Securities 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), and
for which interest (if any) has been paid to the same date; (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 Depositary will send to its
participants (including the Trustee) a written reorganization
notice to the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau 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 Trustee will exchange such Global Certificates
for a single Global Certificate bearing the new CUSIP number, and
the CUSIP numbers of the exchanged Global Certificates will, in
accordance with CUSIP Service Bureau procedures, be canceled and
not immediately 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: Unless otherwise specified in the applicable
Pricing Supplement, Book-Entry Securities will be issued in
denominations of $1,000 and any integral multiples 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 Depositary will arrange for each
pending deposit message described under Settlement Procedure C
below to be transmitted to Standard & Poor's Corporation, which
will use the message to include certain information regarding the
related Book-Entry Notes on the appropriate daily bond report
published by Standard & Poor's Corporation.
Notice of Interest Payments and Regular Record Dates. On
the first Business Day of January, April, July and October of
each year, the Trustee will deliver to the Company and the
Depositary 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 Book-Entry
Securities which are Floating Rate Notes. Promptly after each
Interest Determination Date for Book-Entry Securities which are
Floating Rate Notes, the Trustee will notify Standard & Poor's
Corporation 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 Trustee will
deliver to the Company and the Depositary a written notice
specifying by CUSIP number the amount of interest (if any) to be
paid on each Book-Entry Security on the following Interest
Payment Date (other than an Interest Payment Date coinciding with
the Stated Maturity) and the total of such amounts. The
Depositary will confirm the amount payable (if any) on each
Book-Entry Security on such Interest Payment Date by reference to
the daily bond reports published by Standard & Poor's
Corporation. On such Interest Payment Date, the Company will pay
to the Trustee, as Paying Agent, and the Trustee in turn will pay
to the Depositary, such total amount of interest due (other than
at Stated Maturity), at the times and in the manner set forth
below under "Manner of Payment."
Payments at Stated Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the Company and
the Depositary a written list of principal, premium, if any, and
interest to be paid on each Book-Entry Security maturing either
at Stated Maturity or on a Redemption Date or repayment date in
the following month.
The Trustee, the Company and the Depositary will confirm the
amounts of such principal, premium (if any) and interest payments
with respect to each such Book-Entry Security on or about the
fifth Business Day preceding the Stated Maturity of such
Book-Entry Security. At such Stated Maturity, the Company will
pay to the Trustee, and the Trustee in turn will pay to the
Depositary, the principal amount of such Book-Entry Security,
together with interest and premium, if any, due at such Stated
Maturity, at the times and in the manner set forth below under
"Manner of Payment." Promptly after payment to the Depositary of
the principal, interest and premium, if any, due at the Stated
Maturity of all Book-Entry Securities represented by a particular
Global Certificate, the Trustee will cancel such Global
Certificate, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy such Global
Certificate.
Manner of Payment. The total amount of any principal,
premium and interest due on Book-Entry Securities on any Interest
Payment Date or at Stated Maturity shall be paid by the Company
to the Trustee, as 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 Book-Entry
Securities by wire transfer to the Trustee or by instructing the
Trustee to withdraw funds from an account maintained by the
Company at the Trustee. The Company will confirm such
instructions in writing to the Trustee. For maturity, redemption
and other principal payments, prior to 10:00 a.m., New York City
time, on each Stated Maturity or other such date or as soon as
possible thereafter, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in a form
previously specified by the Depositary) to an account at the
Federal Reserve Bank of New York previously specified by the
Depositary, in funds available for immediate use by the
Depositary, each payment of interest, principal and premium, if
any, due on Book-Entry Securities on such date; and for interest
payments, the Trustee will pay the Depositary in same day funds
on the Interest Payment Date in accordance with existing
arrangements between the Trustee and the Depositary. Thereafter
on each such date, the Depositary 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 Depositary. Once payment has
been made to the Depositary, neither the Company nor the Trustee
shall have any responsibility or liability for the payment by the
Depositary 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 Depositary 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) If a Fixed Rate Note, the interest rate;
(3) Stated Maturity;
(4) Specified Currency and, if the Specified
Currency is other than U.S. dollars, the
applicable exchange rate for such Specified
Currency;
(5) Issue price;
(6) Selling Agent's commission or Purchasing
Agent's discount, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a Security redeemable by either the
Company or a holder, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption
Price shall decline (but not below
par) on each anniversary of the Redemption
Commencement Date, and
(iv) The last date on which any such
right of redemption may be exercised;
(10) If a Floating Rate Note, 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 Period,
(viii) Calculation Dates,
(ix) Interest Calculation Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(11) 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;
(12) If an OID Note, the total amount of OID,
the Yield to Maturity and the initial accrual
period of OID;
(13) The taxpayer identification number of the
purchaser;
(14) Denomination of certificates to be delivered at
settlement; and
(15) Global Certificate or Definitive Certificate.
B. Upon receiving the Book-Entry Sale Information from the
Selling Agent or the Purchasing Agent, as the case may be, the
Company will assign a CUSIP number to the Global Certificate
representing such Book-Entry Security and then as soon as
practicable advise the Trustee by telephone (confirmed by
facsimile transmission) of the Book-Entry Sale Information
received from the Selling Agent or the Purchasing Agent, as the
case may be, such CUSIP number and the name of such Agent.
C. The Trustee will communicate to the Depositary, such
Agent and Standard & Poor's Corporation, through the Depositary's
Participant Terminal System, a pending deposit message specifying
the following settlement information:
(1) The Book-Entry Sale Information.
(2) Identification numbers of the participant
accounts maintained by the Depositary
on behalf of the Trustee and such Agent.
(3) Identification as a Fixed Rate Note,
Floating Rate Note or Zero Coupon Note.
(4) Initial Interest Payment Date for such
Security, number of days by which such date
succeeds the related record date for Depositary
purposes (or, in the case of Floating Rate Notes
which reset daily or weekly, the date five
calendar days preceding the Interest Payment Date)
and, if then calculable, the amount of interest
payable on such Interest Payment Date (which
amount shall have been confirmed by the Trustee).
(5) CUSIP number of the Global Certificate
representing such Book-Entry Security.
(6) Whether such Global Certificate will represent
any other Book-Entry Securities issued
or to be issued (to the extent then known).
D. The Company will complete and deliver to the Trustee a
Global Certificate representing such Book-Entry Security, and the
Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate such Global
Certificate, to register such Global Certificate in the name of
Cede & Co., as nominee of the Depositary, and to effect delivery
thereof to the Depositary by the Trustee's possession of such
authenticated Global Certificate as agent for the Depositary.
E. The Trustee will authenticate the Global Certificate
representing such Book-Entry Security, register such Global
Certificate in the name of Cede & Co., as nominee of the
Depositary, and take delivery thereof as agent for the
Depositary.
F. The Depositary will credit such Book-Entry Security to
the participant account of the Trustee maintained by the
Depositary.
G. The Trustee will enter an SDFS deliver order through
the Depositary's Participant Terminal System instructing the
Depositary (i) to debit such Book-Entry Security to the Trustee'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 Depositary 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 Trustee maintained by the Depositary, 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 representation and
warranty by the Trustee to the Depositary that (i) the Global
Certificate representing such Book-Entry Note has been issued,
authenticated and delivered and (ii) the Trustee is holding such
Global Certificate pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and the Depositary.
H. The Selling Agent or the Purchasing Agent, as the case
may be, will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (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 Depositary and (ii) to debit the
settlement accounts of such Participants and credit the
settlement account of such Agent maintained by the Depositary 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 Trustee will credit to an account of the Company
maintained at the Trustee funds available for immediate use in
the amount transferred to the Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a copy of the Global Certificate
by first-class mail to the Company together with a statement
setting forth the principal amount of Securities Outstanding and
of 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
Trustee 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 Depositary'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
J-K 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 such sale 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 in accordance with any
extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the
settlement date. If settlement of a Book-Entry Security is
rescheduled or canceled, the Company will, as soon as
practicable, give the Trustee notice to such effect. The Trustee
will deliver to the Depositary, through the Depositary's
Participant Terminal System, a cancellation message 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 Trustee 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 Depositary
to the Selling Agent and Standard & Poor's Corporation.
Failure to Settle: If the Trustee fails to enter in timely
fashion an SDFS deliver order with respect to any portion of 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
Trustee may deliver to the Depositary, through the Depositary's
Participant Terminal System, as soon as practicable, a withdrawal
message instructing the Depositary to debit such Book-Entry
Security to the participant account of the Trustee maintained at
the Depositary. A copy of such message will be routed through
the facilities of the Depositary to such Agent. The Depositary
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 Trustee will immediately cancel 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 canceled and not immediately reassigned. If
withdrawal messages are processed with respect to only a portion
of the Book-Entry Securities represented by a particular Global
Certificate, the Trustee will exchange such Global Certificate
for two Global Certificates, one of which shall represent the
Book-Entry Securities for which withdrawal messages are processed
and shall be canceled 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 Depositary, 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 Depositary's Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures G and H, respectively.
Immediately thereafter, the Trustee 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 portion of a Book-Entry Security, the
Depositary 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 portion of a Book-Entry Security
that was to have been represented by a Global Certificate also
representing other Book-Entry Securities, the Trustee 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.
ANNEX III
Accountants' Letter
Pursuant to Section 4(j) and Section 6(d), as the case may
be, of the Distribution Agreement, the Company's independent
certified public accountants shall furnish letters 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 rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma
financial information and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the Agents;
(iii) In their opinion, the unaudited selected financial
information with respect to the consolidated 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 consolidated financial statements for the 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;
(iv) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included in the
Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus [as indicated in their reports
thereon copies of which have been separately furnished to the
Agents]; 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 consolidated financial statements referred to in
paragraph (v)(A) below comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that
the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) The unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of changes in financial position 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 Exchange Act as it
applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance
sheets and consolidated statements of changes in financial
position included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year, as applicable;
(B) Any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, or any such unaudited data and items were not
determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated
by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year, as applicable;
(C) The unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most
recent fiscal year, as applicable;
(D) Any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(E) As of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or as of the
latest period for which financial statements are available,
any decreases in consolidated net current assets or net
assets 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
(F) For the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share
amounts of consolidated net income or other items specified
by the 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
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs (iii) and (iv)
above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Agents which are
derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified
by the 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 its subsidiaries 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(d)
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(j) thereof.
