Exhibit B-2
[NAME OF ISSUER]
DEBT SECURITIES
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
[NAME OF ISSUER]
STANDARD PURCHASE PROVISIONS -
DEBT SECURITIES
From time to time, [Name of Issuer], a corporation
organized and existing under the laws of the State of Delaware
(the "Company"), may enter into purchase agreements that pro-
vide for the sale of designated securities to the purchaser or
purchasers named therein. The standard provisions set forth
herein may be incorporated by reference in any such purchase
agreement (the "Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is
herein sometimes referred to as "this Agreement." The term
"Securities" shall mean the Debt Securities of the Company to
be sold by the Company pursuant to the applicable Purchase
Agreement. Unless otherwise defined herein, terms defined in
the Purchase Agreement are used herein as therein defined.
The Company has filed, in accordance with the provi-
sions of the Securities Act of 1933, as amended, and the rules
and regulations of the Securities and Exchange Commission
thereunder (collectively called the "Act"), with the Securities
and Exchange Commission (the "Commission"), a registration
statement on Form S-3 (including a prospectus), relating to the
Securities, which pursuant to Item 12 of Form S-3 incorporates
by reference documents which the Company has filed in accor-
dance with the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). Such registration
statement has been declared effective by the Commission.
Promptly upon the execution of this Agreement, the Company will
prepare a prospectus supplement relating to the Securities (the
"Prospectus Supplement"). The Company has furnished to you,
for use by the Underwriters (as defined herein) and dealers,
copies of one or more preliminary prospectuses and the docu-
ments so incorporated therein (each thereof, including the doc-
uments so incorporated therein, is herein called the "Prelimi-
nary Prospectus"). The terms Registration Statement and Pro-
spectus shall have the meanings ascribed to them in the Pur-
chase Agreement.
1. Introductory. The Company proposes to issue and
sell from time to time Securities registered under the Regis-
tration Statement. The Securities will be issued pursuant to
an Indenture, dated , to as Trustee
(the "Trustee"), as supplemented and amended, including a sup-
plemental indenture pertaining to the particular series of
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Securities involved in the offering (the "Indenture"), and will
have varying designations, interest rates and times of payment
of any interest, maturities, redemption provisions and other
terms, with all such terms for any particular series of the
Securities being determined at the time of the sale and set
forth in the Purchase Agreement and the Prospectus Supplement
relating to such series of Securities. The Securities involved
in any such offering are hereinafter referred to as the "Pur-
chased Securities," and the firm or firms, as the case may be,
which agree to purchase the same are hereinafter referred to as
the "Underwriters" of the Purchased Securities. The terms
"you" and "your" refer to those Underwriters who sign the Pur-
chase Agreement either on behalf of themselves only or on
behalf of themselves and as representatives of the several
Underwriters named in Schedule A thereto, as the case may be.
Purchased Securities to be purchased by Underwriters are herein
referred to as "Underwriters' Securities," and any Purchased
Securities to be purchased pursuant to Delayed Delivery Con-
tracts (as defined below) as hereinafter provided are herein
referred to as "Contract Securities."
2. Delivery and Payment. The Company will deliver
the Underwriters' Securities to you for the accounts of the
Underwriters at the place specified in the Purchase Agreement,
against payment of the purchase price by wire transfer of imme-
diately available funds (as agreed to by the parties and speci-
fied in the Purchase Agreement), at the time set forth in this
Agreement [or at such other time not later than seven full
business days thereafter] as you and the Company determine,
such time being herein referred to as the "time of purchase."
Unless otherwise provided for in the Purchase Agreement, the
Underwriters' Securities so to be delivered will be in defini-
tive fully registered form registered in such authorized denom-
inations and in such names as you request in writing not later
than 10:00 A.M.,* on the third business day prior to the time
of purchase, or, if no such request is received, in the names
of the respective Underwriters in the amounts agreed to be pur-
chased by them pursuant to this Agreement. For the purpose of
expediting the checking of the Underwriters' Securities, the
Company agrees to make the Underwriters' Securities available
to you (at the place specified in the Purchase Agreement) in
_________________________
* Times mentioned herein are New York City Time.
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definitive form not later than 10:00 A.M. on the first business
day preceding the time of purchase.*
If any Purchase Agreement provides for sales of Pur-
chased Securities pursuant to delayed delivery contracts, the
Company authorizes the Underwriters to solicit offers to pur-
chase Contract Securities pursuant to delayed delivery con-
tracts substantially in the form of Schedule I attached hereto
(the "Delayed Delivery Contracts") with such changes therein as
the Company may approve. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment com-
panies, and educational and charitable institutions. At the
time of purchase the Company will pay you as compensation, for
the accounts of the Underwriters, the compensation set forth in
such Purchase Agreement in respect of the principal amount of
Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and deliv-
ers Delayed Delivery Contracts, the Contract Securities shall
be deducted from the Purchased Securities to be purchased by
the several Underwriters and the aggregate principal amount of
Purchased Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of
Purchased Securities set forth opposite each Underwriter's name
in such Purchase Agreement, except to the extent that you
determine that such reduction shall be otherwise allocated and
so advise the Company.
3. Certain Covenants of the Company. The Company
agrees:
(a) As soon as possible after the execution
and delivery of this Agreement to file, or mail
for filing, the Prospectus with the Commission
pursuant to its Rule 424 under the Act and, if and
when required at any time after such execution and
delivery, to file amendments to the applications
the Company has previously filed with any state
regulatory agencies having jurisdiction to govern
the Company's issuance of its securities setting
forth, among other things, the necessary informa-
tion with respect to the price and terms of the
_________________________
* As used herein, "business day" shall mean a day on which
the New York Stock Exchange is open for trading.
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Purchased Securities and the terms of offering of
the Purchased Securities;
(b) To file no amendment or supplement to
the Registration Statement or Prospectus (other
than a required filing under the Exchange Act)
subsequent to the execution of this Agreement to
which you object in writing;
(c) To furnish such proper information as
may be required and otherwise to cooperate in
qualifying the Purchased Securities for sale under
the laws of such jurisdictions as you may desig-
nate and in determining their eligibility for
investment under the laws of such jurisdictions;
provided that the Company shall not be required to
qualify as a foreign corporation or to file a gen-
eral consent to service of process in any
jurisdiction;
(d) To the extent not previously furnished
to you, to furnish to you two signed copies of the
Registration Statement, as initially filed with
the Commission, of all amendments thereto, and of
all documents incorporated by reference therein
(including all exhibits filed therewith, other
than exhibits which have previously been furnished
to you), two signed copies of each consent and
certificate of independent accountants and of each
other person who by his profession gives authority
to statements made by him and who is named in the
Registration Statement as having prepared, certi-
fied or reviewed any part thereof, and to furnish
to you sufficient unsigned copies of the foregoing
(other than exhibits, including consents filed as
exhibits, to the Registration Statement) for dis-
tribution of a copy to you and to each of the
other Underwriters;
(e) To deliver to the Underwriters without
charge in New York City as soon as practicable
after the execution and delivery of this Agreement
and thereafter from time to time to furnish to the
Underwriters, without charge, as many copies of
the Prospectus in final form and any documents
incorporated by reference therein at or after the
date thereof (or as amended or supplemented, if
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the Company shall have made any amendment or sup-
plement after the effective date of the Registra-
tion Statement) as you or the respective Under-
writers may reasonably request for the purposes
contemplated by the Act;
(f) To advise you promptly (confirming such
advice in writing) of any official request made by
the Commission for amendments to the Registration
Statement or Prospectus or for additional informa-
tion with respect thereto, or of official notice
of institution of proceedings for, or the entry
of, a stop order suspending the effectiveness of
the Registration Statement and, if such order
should be entered by the Commission, to make every
reasonable effort to obtain the lifting or removal
thereof as soon as possible, or of the suspension
of qualification of the Purchased Securities for
offering or sale in any jurisdiction or of the
initiation or threatening of any proceeding for
any such purpose;
(g) To apply the net proceeds from the sale
of the Purchased Securities in the manner set
forth in the Prospectus;
(h) To furnish to you during a period of
five years from the time of purchase (i) as soon
as practicable after the end of each fiscal year,
a copy of its annual report to shareholders for
such year; (ii) from time to time, copies of any
reports or other communications which it shall
file with the Commission or any governmental
agency substituted therefor under the Exchange Act
or sent to its public stockholders, or holders of
the Purchased Securities, and (iii) such other
information as you may from time to time reason-
ably request regarding the financial condition and
operations of the Company;
(i) To furnish to any other Underwriter cop-
ies of such of the financial statements, reports
or other information referred to in the foregoing
subparagraphs (h)(i) and (ii) as such Underwriter
may, from time to time during the period you are
entitled to receive them, request;
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(j) To advise the Underwriters of the hap-
pening of any event known to the Company within
the time during which a prospectus relating to the
Purchased Securities is required to be delivered
under the Act which, in the judgment of the Com-
pany, would require the making of any change in
the Prospectus or any amended or supplemented Pro-
spectus or in the information incorporated by ref-
erence therein so that as thereafter delivered to
purchasers such Prospectus will not include an
untrue statement of a material fact or omit to
state a material fact required to be stated
therein or necessary in order to make the state-
ments therein, in the light of the circumstances
under which they were made, not misleading, and on
request to prepare and furnish to the Underwriters
and to dealers and other persons designated by you
such amendments or supplements (including appro-
priate filings under the Exchange Act) to the Pro-
spectus as may be necessary to reflect any such
change, provided that the Company shall be so
obligated only so long as the Company is notified
of unsold allotments (failure by the Underwriters
to so notify the Company cancels the Company's
obligation under this Section 3(j));
(k) As soon as practicable, to make gener-
ally available to its security holders an earnings
statement (as contemplated by Rule 158 under the
Act) covering a period of twelve months after the
effective date of the Registration Statement;
(l) To pay the fees and expenses of counsel
for the Underwriters, and to reimburse the Under-
writers for their reasonable out-of-pocket
expenses incurred in contemplation of the perfor-
xxxxx of this Agreement, in the event that the
Underwriters' Securities are not delivered to and
taken up and paid for by the Underwriters hereun-
der for any reason whatsoever except the failure
or refusal of any Underwriter to take up and pay
for Underwriters' Securities for some reason not
permitted by the terms of this Agreement, the
Underwriters agreeing to pay the fees and expenses
of counsel for the Underwriters in any other
event;
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(m) To pay all expenses, fees and taxes
(other than transfer taxes and fees and disburse-
ments of counsel for the Underwriters except as
set forth under 3(l) above or (iv) below) in con-
nection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospec-
tus and the Prospectus, any documents incorporated
by reference therein at or after the date thereof
and any amendments or supplements thereto, and the
printing or reproduction and furnishing of copies
of each thereof to the Underwriters and to deal-
ers, (ii) the issue, sale and delivery of the Pur-
chased Securities, (iii) the printing or reproduc-
tion of this Agreement and the opinions and let-
ters referred to in Section 4(a) hereof, (iv) the
qualification of the Purchased Securities for sale
and determination of their eligibility for invest-
ment under state laws as aforesaid, including the
legal fees and all filing fees and disbursements
of counsel for the Underwriters and all other fil-
ing fees, and the printing or reproduction and
furnishing of copies of the "Blue Sky Survey" and
the "Legal Investment Survey" to the Underwriters
and to dealers, (v) the rating of the Purchased
Securities by national rating agencies and
(vi) the performance of the Company's other obli-
gations hereunder;
(n) To furnish to you as early as practi-
cable prior to the time of purchase, but no later
than two business days prior thereto, a copy of
the latest available unaudited interim xxxxxxx-
dated financial statements, if any, of the Company
which have been read by the Company's independent
public accountants as stated in their letters to
be furnished pursuant to Section 4(a) of this
Agreement; and
(o) If a public offering of the Purchased
Securities is to be made, not to offer or sell any
of its other debt securities which are substan-
tially similar to the Purchased Securities prior
to ten days after the time of purchase without
your consent.
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4. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters hereunder are subject
to the following conditions:
(a) That, at the time of purchase, you shall
receive the signed opinions of counsel for the
Company and counsel for the Underwriters, substan-
tially in the forms heretofore furnished to you,
addressed to the Underwriters (with reproduced or
conformed copies thereof for each of the other
Underwriters); and that, at the time of purchase,
you shall receive the signed letters of the
independent public accountants of the Company,
substantially in the form heretofore furnished to
you and in substance satisfactory to you addressed
to the Underwriters (with reproduced or conformed
copies thereof for each of the other
Underwriters);
(b) That, at or before 5:30 P.M. on the date
hereof, or at such later time and day as you may
have from time to time consented to in writing or
by telephone, confirmed in writing, such orders of
state authorities which are necessary to permit
the issue, sale and delivery of the Purchased
Securities, if any, shall have been issued; at the
time of purchase such orders shall be in full
force and effect; and prior to such time of pur-
chase no stop order with respect to the effective-
ness of the Registration Statement shall have been
issued under the Act by the Commission and at such
time of purchase no proceedings therefor shall be
pending or threatened;
(c) That, at the time the Registration
Statement became effective, the Registration
Statement did not contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, and that at
the time of purchase the Prospectus shall not con-
tain an untrue statement of a material fact or
omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading, other than
any statement contained in, or any matter omitted
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from, the Registration Statement or the Prospectus
in reliance upon, and in conformity with, informa-
tion furnished in writing by or on behalf of any
Underwriter through you to the Company expressly
for use with reference to such Underwriter in the
Registration Statement or Prospectus;
(d) That, subsequent to the respective dates
as of which information is given in the Registra-
tion Statement and in the Prospectus, at the time
the Prospectus is first filed, or mailed for fil-
ing, pursuant to Rule 424 under the Act, and prior
to the time of purchase, in your opinion no mate-
rial adverse change, or any development involving
a prospective material adverse change, in the con-
dition of the Company, financial or otherwise,
shall have taken place (other than as referred to
in or contemplated by the Registration Statement
and Prospectus as of such time);
(e) That the Company shall have performed
all of its obligations under this Agreement which
are to be performed by the terms hereof at or
before the time of purchase;
(f) That, since the date of this Agreement,
there shall not have occurred any downgrading, nor
shall any notice have been given of any intended
or potential downgrading or of any review for a
possible change that does not indicate the direc-
tion of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating organi-
zation," as such term is defined for purposes of
Rule 436(g)(2) under the Act (other than as
referred to in or contemplated by the Registration
Statement and the Prospectus as of such time);
(g) That the Company shall, at the time of
purchase, deliver to you (with reproduced or con-
formed copies thereof for each of the other Under-
writers) a signed certificate of two of its execu-
tive officers stating that, subsequent to the
respective dates as of which information is given
in the Registration Statement and in the Prospec-
tus, at the time the Prospectus is first filed, or
mailed for filing, pursuant to Rule 424 under the
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Act, and prior to the time of purchase, no mate-
rial adverse change, or any development involving
a prospective material adverse change, in the con-
dition of the Company, financial or otherwise,
shall have taken place (other than as referred to
in or contemplated by the Registration Statement
and Prospectus as of such time) and also covering
the matters set forth in (c) and (e) of this Sec-
tion 4; and
(h) That the Company shall have accepted
Delayed Delivery Contracts in any case where sales
of Contract Securities arranged by the Underwrit-
ers have been approved by the Company.
5. Termination of Agreement. The obligations of
the several Underwriters hereunder shall be subject to termina-
tion in your absolute discretion, if, at any time prior to the
time of purchase, trading in securities on the New York Stock
Exchange shall have been suspended (other than a temporary sus-
pension to provide for an orderly market) or minimum prices
shall have been established on the New York Stock Exchange, or
if a banking moratorium shall have been declared either by the
United States or New York State authorities, or if after the
execution of this Agreement the United States shall have
declared war in accordance with its constitutional processes or
there shall have occurred any material outbreak or escalation
of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets
of the United States as, in your judgment, to make it impracti-
cable to market the Purchased Securities.
If you elect to terminate this Agreement as provided
in this Section 5, the Company and each other Underwriter shall
be notified promptly in writing or by telephone, confirmed in
writing.
If the sale to the Underwriters of the Underwriters'
Securities, as herein contemplated, is not carried out by the
Underwriters for any reason permitted hereunder or if such sale
is not carried out because the Company shall be unable to com-
ply with any of the terms thereof, the Company shall not be
under any obligation or liability under this Agreement (except
to the extent provided in Sections 3(l), 3(m), 7(b) and 9
hereof), and the Underwriters shall be under no obligation or
liability to the Company (except to the extent provided in
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Sections 8(b) and 9 hereof) or to one another under this
Agreement.
6. Increase in Underwriters' Commitments: If any
Underwriter shall default in its obligation to take up and pay
for the Purchased Securities to be purchased by it hereunder
and if the principal amount of the Purchased Securities which
all Underwriters so defaulting shall have so failed to take up
and pay for does not exceed 10% of the total principal amount
of the Purchased Securities, the non-defaulting Underwriters
shall take up and pay for (in addition to the principal amount
of the Purchased Securities they are obligated to purchase pur-
suant to this Agreement) the principal amount of the Purchased
Securities agreed to be purchased by all such defaulting Under-
writers, as herein provided. Such Purchased Securities shall
be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the
event no such designation is made, such Purchased Securities
shall be taken up and paid for by all non-defaulting Underwrit-
ers pro rata in proportion to the principal amount of the Pur-
chased Securities set opposite the names of all such non-
defaulting Underwriters in Schedule A to the Purchase
Agreement.
Without relieving any defaulting Underwriter of its
obligations hereunder, the Company agrees with the non-default-
ing Underwriters that it will not sell any Purchased Securities
hereunder unless all of the Underwriters' Securities are pur-
chased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Company or selected by
the Company with your approval).
If a new underwriter or underwriters are substituted
by the Underwriters or by the Company for a defaulting Under-
writer or Underwriters in accordance with the foregoing provi-
sion, the Company or you will have the right to postpone the
time of purchase for a period of not exceeding five business
days in order that necessary changes in the Registration State-
ment and Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement will
refer to and include any underwriter substituted under this
Section 6 with like effect as if such substituted underwriter
had originally been named in Schedule A to the Purchase
Agreement.
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7. Warranties and Representations of and Indemnity
by the Company. (a) The Company warrants and represents that,
when the Registration Statement became effective, the Registra-
tion Statement complied in all material respects, and, when the
Prospectus is first filed, or mailed for filing, pursuant to
Rule 424 under the Act, the Prospectus will comply in all mate-
rial respects with the provisions of the Act, and that neither
will contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or neces-
sary to make the statements therein not misleading; provided,
however, that the Company makes no warranty or representation
with respect to any statement contained in, or any matter omit-
xxx from, the Registration Statement or the Prospectus in reli-
ance upon and in conformity with information furnished in writ-
ing by or on behalf of any Underwriter through you to the Com-
pany expressly for use with reference to the Underwriter in the
Registration Statement or Prospectus. The Company also war-
rants and represents that the documents incorporated by refer-
ence in the Prospectus comply in all material respects with the
requirements of the Exchange Act and any additional documents
deemed to be incorporated by reference in the Prospectus will,
when they are filed with the Commission, comply in all material
respects with the requirements of the Exchange Act, and will
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein, or neces-
sary to make the statements therein, in the light of the cir-
cumstances under which they are made, not misleading.
(b) The Company agrees to indemnify and hold harm-
less each Underwriter, and any person who controls any Under-
writer within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any loss, expense,
liability or claim (including the reasonable fees and expenses
of counsel and other reasonable expenses in connection with
investigating, defending or settling any such claim) which
arises out of or is based upon any alleged untrue statement of
a material fact in the Registration Statement, any prospectus
contained in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary pro-
spectus, or arises out of or is based upon any alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements made therein not mislead-
ing. The foregoing shall not cover any such loss, expense,
liability or claim, however, which arises out of or is based
upon any alleged untrue statement of a material fact contained
in, and in conformity with information furnished in writing by
or on behalf of such Underwriter through you to the Company
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expressly for use with reference to the Underwriter in, any
such documents or arises out of or is based upon any alleged
omission to state a material fact in connection with such
information required to be stated in any such documents or nec-
xxxxxx to make such information not misleading.
If any action is brought against an Underwriter or
controlling person in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such
Underwriter shall promptly notify the Company in writing or by
telephone, confirmed in writing, of the institution of such
action and the Company shall assume the defense of such action,
including the employment of counsel and payment of expenses.
Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of
such counsel shall have been authorized in writing by the Com-
pany in connection with the defense of such action or the Com-
pany shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties
shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional
to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which
events such fees and expenses of one counsel (in addition to
local counsel) for all indemnified parties selected by you
shall be borne by the Company. Anything in this paragraph to
the contrary notwithstanding, the Company shall not be liable
for any settlement of any such claim or action effected without
its written consent. The Company's indemnity agreement con-
tained in this Section 7(b) and its warranties and representa-
tions contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf
of any Underwriter or controlling person, and shall survive any
termination of this Agreement or the issuance and delivery of
the Purchased Securities. The Company agrees promptly to
notify the Underwriters of the commencement of any litigation
or proceedings against the Company or any of its officers or
directors in connection with the issue and sale of the Pur-
chased Securities or with such Registration Statement or
Prospectus.
8. Warranties and Representations of and Indemnity
by Underwriters. (a) Each Underwriter warrants and represents
that the information furnished in writing by or on behalf of
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such Underwriter through you to the Company expressly for use
with reference to such Underwriter in the Registration State-
ment at the time it became effective or the Prospectus, or any
related preliminary prospectus does not contain an untrue
statement of a material fact and does not omit to state a mate-
rial fact in connection with such information required to be
stated in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary pro-
spectus or necessary to make such information not misleading.
Each Underwriter, in addition to other information furnished by
such Underwriter or on its behalf through you to the Company in
writing expressly for use with reference to such Underwriter in
the Registration Statement and Prospectus, hereby furnishes to
the Company in writing expressly for use with reference to such
Underwriter the statements with respect to the terms of offer-
ing of the Purchased Securities by the Underwriters set forth
on the cover page of the Prospectus Supplement and under
"Underwriting" therein.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors and its officers
from and against any loss, expense, liability or claim (includ-
ing the reasonable fees and expenses of counsel and other rea-
sonable expenses in connection with investigating, defending or
settling any such claim) which arises out of or is based upon
any alleged untrue statement of a material fact contained in,
and in conformity with information furnished in writing by or
on behalf of such Underwriter through you to the Company
expressly for use with reference to such Underwriter in, the
Registration Statement, any prospectus contained in the Regis-
tration Statement at the time it became effective or the Pro-
spectus, or any related preliminary prospectus, or arises out
of or is based upon any alleged omission to state a material
fact in connection with such information required to be stated
in such documents or necessary to make such information not
misleading.
If any action is brought against the Company or any
such person in respect of which indemnity may be sought against
any Underwriter pursuant to the foregoing paragraph, the Com-
pany or such person shall promptly notify such Underwriter in
writing or by telephone, confirmed in writing, of the institu-
tion of such action and such Underwriter shall assume the
defense of such action, including the employment of counsel and
payment of expenses. The Company or such person shall have the
right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense
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of the Company or such person unless the employment of such
counsel shall have been authorized in writing by such Under-
writer in connection with the defense of such action or such
Underwriter shall not have employed counsel to have charge of
the defense of such action or such indemnified party or parties
shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional
to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses for all indemnified
parties of one counsel (in addition to local counsel) selected
by the Company shall be borne by such Underwriter. Anything in
this paragraph to the contrary notwithstanding, no Underwriter
shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained
in this Section 8(b) shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Company or such person, and shall survive any termination of
this Agreement or the issuance and delivery of the Purchased
Securities. Each Underwriter agrees promptly to notify the
Company of the commencement of any litigation or proceedings
against such Underwriter in connection with the issue and sale
of the Purchased Securities or with such Registration Statement
or Prospectus.
9. Contribution. If the indemnification provided
for in Sections 7(b) or 8(b) above is unavailable in respect of
any losses, expenses, liabilities or claims referred to
therein, then the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities
and expenses except to the extent that contribution is not per-
mitted under the Act or the Exchange Act. In determining the
amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits
received by each party from the offering of the Purchased Secu-
rities (taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and
access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable con-
siderations appropriate under the circumstances. The Company
and the Underwriters and such controlling persons agree that it
would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the
Underwriters and such controlling persons were treated as one
-16-
entity for such purpose). Notwithstanding the provisions of
this Section 9, no indemnifying Underwriter shall be required
to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by such Under-
writer and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter other-
wise has been required to pay by reason of such untrue state-
ment or alleged untrue statement or omission or alleged omis-
sion. 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 fraudu-
lent misrepresentation. The contribution agreement contained
in this Section 9 shall remain in full force and effect regard-
less of any investigation made by or on behalf of any Under-
writer or the Company or any of its officers or directors or
any controlling person and shall survive any termination of
this Agreement or the issuance and delivery of the Purchased
Securities.
10. Notices. All statements, requests, notices and
agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered
or sent by registered mail to the address furnished in writing
for the purpose of such statements, requests, notices and
agreements hereunder, and, if to the Company shall be suffi-
cient in all respects if delivered or sent by registered mail
to the Company at [Name of Issuer/Address], Attention: .
11. Construction. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
New York.
The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a
part of this agreement.
12. Parties in Interest. The Agreement herein set
forth has been and is made solely for the benefit of the Under-
writers and the Company, and the controlling persons, directors
and officers referred to in Sections 7, 8 and 9 hereof, and
their respective successors, assigns, executors and administra-
tors, and no other person shall acquire or have any right under
or by virtue of this Agreement. Nothing in this Agreement is
intended or shall be construed to give to any other person,
firm or corporation (including, without limitation, any pur-
chaser of the Purchased Securities from an Underwriter or any
subsequent holder thereof or any purchaser of any Contract
-17-
Securities or any subsequent holder thereof) any legal or equi-
table right, remedy or claim under or in respect of this Agree-
ment or any provision herein contained.
The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any Purchased
Securities from any Underwriter or any subsequent holder
thereof or any purchaser, as such purchaser, of any Contract
Securities or any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in
any number of counterparts which, taken together, shall consti-
tute one and the same instrument.
Schedule I
DELAYED DELIVERY CONTRACT
Dated: , 199
[NAME OF ISSUER]
[ADDRESS]
Attention:
Dear Sirs:
The undersigned xxxxxx agrees to purchase from [Name
of Issuer] (the "Company"), and the Company agrees to sell to
the undersigned,
$___________________
principal amount of the Company's [state title of issue] (the
"Securities") offered by the Company's Prospectus dated
, 199 and a Prospectus Supplement dated
, 199 , receipt of copies of which is hereby
acknowledged, at a purchase price of % of the principal
amount thereof plus accrued interest and on the further terms
and conditions set forth in this contract.
The undersigned agrees to purchase such Securities in
the principal amounts and on the delivery dates (the "Delivery"
"Dates") set forth below:
Delivery Principal Plus Accrued
__Date__ _Amount__ Interest From:
________________ $_______________ ________________
________________ $_______________ ________________
________________ $_______________ ________________
Payment for the Securities which the undersigned has
agreed to purchase on each Delivery Date shall be made to the
Company by wire transfer of immediately available at the
-2-
Corporate Trust Office of (or at such other place
as the undersigned and the Company shall agree) at 11:00 A.M.,
New York City Time, on such Delivery Date upon issuance and
delivery to the undersigned of the Securities to be purchased
by the undersigned on such Delivery Date in such authorized
denominations and, unless otherwise provided herein, registered
in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less
than five full business days prior to such Delivery Date.
The obligation of the Company to sell and deliver,
and of the undersigned to take delivery of and make payment
for, Securities on each Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by
the undersigned shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which the undersigned is
subject, (2) the sale of the Securities by the Company pursuant
to this contract shall not at the time of delivery be prohib-
ited under the laws of any jurisdiction to which the Company is
subject and (3) the Company shall have sold, and delivery shall
have taken place, to the Underwriters of such principal amount
of the Securities as is to be sold and delivered to them. In
the event that Securities are not sold to the undersigned
because one of the foregoing conditions is not met, the Company
shall not be liable to the undersigned for damages arising out
of the transactions covered by this contract.
Promptly after completion of the sale and delivery to
the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such
effect, accompanied by copies of the opinions of counsel for
the Company delivered to the Underwriters.
Failure to take delivery of and make payment for
Bonds by any purchaser under any other Delayed Delivery Con-
tract shall not relieve the undersigned of its obligations
under this contract.
The undersigned represents and warrants that (a) as
of the date of this contract, the undersigned is not prohibited
under the laws of the jurisdictions to which the undersigned is
subject from purchasing the Securities hereby agreed to be pur-
chased and (b) the undersigned does not contemplate selling the
Securities which it has agreed to purchase hereunder prior to
the Delivery Date therefor.
-3-
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective succes-
sors, but will not be assignable by either party hereto without
the written consent of the other. This contract shall be gov-
erned by and construed in accordance with the laws of the State
of New York. This contract may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
It is understood that the acceptance of any Delayed
Delivery Contract is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come,
first-served basis. If the contract is acceptable to the Com-
pany, it is requested that the Company sign the form of accep-
tance below and mail or deliver one of the counterparts hereof
to the undersigned at its address set forth below. This will
become a binding contract between the Company and the under-
signed when such counterpart is so signed.
Yours very truly,
____________________________________
By____________________________________
____________________________________
____________________________________
Address
Accepted, as of the date first above written
[Name of Issuer]
By_________________________________
-4-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the repre-
sentative of the Purchaser with whom details of delivery on the
Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
[NAME OF ISSUER]
PURCHASE AGREEMENT
DEBT SECURITIES
_______________, 1996
[Name of Issuer]
[ADDRESS]
Dear Sirs:
Referring to the Debt Securities, ______% Series due
(the "Securities"), of [Name of Issuer] (the "Company")
covered by registration statement on Form S-3 (No. 333- ),
such registration statement including (i) the prospectus
included therein, dated , 1996, as supplemented by a
prospectus supplement dated ______________, 19 in the form
first filed under Rule 424 and any additional prospectus sup-
plements relating to the Securities filed under Rule 424 (such
prospectus as so supplemented, including each document incorpo-
rated by reference therein is hereinafter called the "Prospec-
tus") and (ii) all documents filed as part thereof or incorpo-
rated by reference therein, is hereinafter called the "Regis-
tration Statement" on the basis of the representations, warran-
ties and agreements contained in this Agreement, but subject to
the terms and conditions herein set forth, the purchaser or
purchasers named in Schedule A hereto (the "Underwriters") sev-
erally agree to purchase and the Company agrees to sell to each
Underwriter the principal amount of the Company's Securities
having the terms described below (the "Purchased Securities")
set forth opposite the name of each Underwriter on Schedule A
hereto.
The price at which the Purchased Securities shall be
purchased from the Company by the Underwriters shall be
______%. The initial public offering price shall be ______%.
The Purchased Securities will be offered by the Underwriters as
set forth in the Prospectus relating to such Purchased
Securities.
The Purchased Securities will have the following
terms:
Title of Securities: ____________________________
-2-
Interest rate: ____________________________
Interest Payment Dates: ____________________________
____________________________
____________________________
____________________________
____________________________
Maturity: ____________________________
Redemption Provisions: ____________________________
____________________________
____________________________
Other:
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
Payment for the
Purchased Securities
shall be made in
the following funds: ____________________________
The time of purchase
shall be: ____________________________
The place(s) at which
the Purchased Securities
shall be delivered and
sold shall be: ____________________________
Delayed Delivery
Contracts: ______________________________
Notices to the Underwriters shall be sent to the fol-
lowing address or telecopier number:
-3-
If we are acting as Representative(s) for the several
Underwriters named in Schedule A hereto, we represent that we are
authorized to act for such several Underwriters in connection
with the transactions contemplated in this Agreement, and that,
if there are more than one of us, any action under this Agreement
taken by any of us will be binding upon all the Underwriters.
All of the provisions contained in the document enti-
tled "[Name of Issuer] Standard Purchase Provisions - Debt Secu-
rities," a copy of which has been previously furnished to us, are
hereby incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein.
-4-
If the foregoing is in accordance with your understand-
ing of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement
between the Company and each Underwriter in accordance with its
terms.
Very truly yours,
[Firm Name]
By ________________________________
Title:
[Firm Name]
By ________________________________
Title:
Acting on behalf of and as
Representative(s) of the
several Underwriters named
in Schedule A hereto.*
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above
written.
[NAME OF ISSUER]
By ___________________________
Title:
_________________________
* To be deleted if the Purchase Agreement is not executed by
one or more Underwriters acting as Representative(s) of
the Underwriters for purposes of this Agreement.
SCHEDULE A
Principal
Name of Underwriter Xxxxxx
Total __________
$
