EXHIBIT 1.1
XXXXXXX & XXXXX, INCORPORATED
$500,000,000
MEDIUM-TERM NOTES, SERIES I
U.S. DISTRIBUTION AGREEMENT
November 24, 1999
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXXXXXX & XXXXX, INCORPORATED, a Missouri corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes, Series
I (the "Securities") in an aggregate amount up to $500,000,000 (or the
equivalent thereof in one or more foreign currencies or composite
currencies) and agrees with each of you, individually, an "Agent", and
collectively, the "Agents", as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its
own behalf, the Company hereby (i) appoints each Agent as an agent of the
Company for the purpose of soliciting and receiving offers to purchase
Securities from the Company pursuant to Section 2(a) hereof and (ii) agrees
that, except as otherwise contemplated herein, whenever it determines to
sell Securities directly to any Agent as principal, it will enter into a
separate agreement (each a "Terms Agreement"), 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 a senior indenture dated as of
November 24, 1999 (the "Indenture"), between the Company and The Chase
Manhattan Bank, 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) (i) One registration statement on Form S-3 (File No. 333-90443)
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); (ii) such registration statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to such Agent, including all documents
incorporated by reference in the prospectus included in the registration
statement, have been declared effective by the Commission in such form;
(iii) no other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than the prospectus filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the Agents); and
(iv) no stop order suspending the effectiveness of any such registration
statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, is hereinafter called a "Preliminary Prospectus"; (v) the
various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding the Form T-1
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the "Registration
Statement"; (vi) the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called the
"Prospectus"; (vii) 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; (viii) 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; (ix) any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and (x) any reference to the
Prospectus as amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with Section 4(a) hereof)
in relation to Securities to be 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);
2
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to 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 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, or to that part of the Registration Statement that
constitutes the Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the Trustee;
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Missouri; and
has the requisite corporate power and authority to execute and deliver the
Securities and this Agreement, to perform its obligations hereunder and
thereunder, and to own its properties and conduct its business as described
in the Prospectus.
(e) The issuance and sale of the Securities in an aggregate principal
amount not in excess of an aggregate principal amount which shall not
exceed $500,000,000 (or the equivalent in a foreign currency or
currencies), has been duly authorized by the Company and, when the
Securities have been duly executed by the Company and authenticated and
delivered by the Trustee, and payment therefor has been received by or on
behalf of the Company, such Securities will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(f) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligation of
the Company,
3
enforceable against the Company in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and except
that no representation or warranty is made with respect to the
enforceability of Section 7 hereof.
(g) The Company and its subsidiaries have not sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which is material to the Company and its subsidiaries taken as a
whole otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
decrease in the capital stock of the Company or material increase in
consolidated long-term debt (as such terms are defined in accordance with
generally accepted accounting principles) of the Company and its
subsidiaries or any material adverse change, or any development that the
Company believes would be reasonably likely to result in a material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(h) (i) 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 Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not (A) result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company
is subject or (B) result in any violation of (1) the provisions of the
Articles of Incorporation, as amended, or the By-laws of the Company or (2)
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
properties; and (ii) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required on the part of the Company 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 Terms Agreement or the Indenture, except such as have been,
or will have been prior to the Commencement Date (as defined in Section 3
hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws 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 in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which
4
would individually or in the aggregate reasonably be expected to have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(j) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities that will
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 will have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement; and
(k) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
2. (a) On the basis of the representations and warranties herein
contained, 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, solicit offers and sell Securities
directly on its own behalf to any person, to sell Securities through others
(provided that any other agent or broker dealer will execute an agreement
with the Company that includes terms and conditions that are substantially
identical to the terms and conditions included in this Agreement), and
after not less than 5 business days prior written notice to the Agents, to
designate and select additional agents to become party to this Agreement.
In the case of any sale not resulting from a solicitation made by any
Agent, no commission will be payable to the Agents with respect to such
sale. In no event shall any offers, solicitation of offers or sales of debt
securities by the Company result in (i) any violation of applicable federal
or state securities laws (and, if requested by any such Agent, the Company
shall deliver an opinion of counsel in a form reasonably satisfactory to
such Agent, to such effect, provided, that such counsel need not express
any opinion as to accuracy or completeness of disclosure in any other such
sale by the Company) or (ii) any Agent's inability to re-sell any
Securities that it has purchased as a principal pursuant to this Agreement
or 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 Procedures
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
Procedures"). The provisions of the Administrative Procedures 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
5
Administrative Procedures. The Company will furnish to the Trustee a copy
of the Administrative Procedures as from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents orally (with confirmation in writing) or in writing to suspend
at any time, for any period of time or permanently, the solicitation of
offers to purchase the Securities. Upon receipt of such instructions 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(h), 4(i), 4(j) and 4(k). Upon advising the Agents that such
solicitation may be resumed, however, the Company shall be required to
comply with the provisions of Sections 4(h), 4(i), 4(j) and 4(k) prior to
resumption of such solicitations. 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(h), 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 applicable
percentage of the principal amount of such Security sold as set forth in
Schedule A hereto.
(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 otherwise agree) a Terms Agreement which will provide for the
sale of such Securities to, and the purchase thereof by, such Agent; a
Terms Agreement may also specify certain provisions relating to the re-
offering of such Securities by such Agent; the commitment of any Agent to
purchase Securities as principal, whether pursuant to any Terms Agreement
or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth; each Terms Agreement
shall specify the principal amount of Securities to be purchased by any
Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the re-offering of the
Securities and the time and date and place of delivery of and payment for
such Securities; and such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Each Agent proposes to offer
Securities purchased by it as principal for sale at prevailing market
prices or prices related thereto at the time of sale, which may be equal
to, greater than or less than the price at which such Securities are
purchased by such Agent from the Company.
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 Procedures. For each such sale of Securities to an
Agent as principal that is not made
6
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 Procedures, is referred to herein
as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such
Security in, or to residents of, the country issuing such currency, except
as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents
at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, New York, New
York, 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 without
affording each Agent a reasonable opportunity to review and comment thereon
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 that is disapproved by any Agent party to such Terms Agreement or
so purchasing as principal promptly after reasonable notice thereof;
provided, however, that (1) the foregoing requirement shall not apply to
any of the Company's filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the Commission and (2) any
Prospectus Supplement or Pricing Supplement that merely sets forth the
terms or a description of particular Securities shall only be reviewed and
approved by the Agent or Agents offering such Securities; (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)(3) 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 (or the business day
immediately preceding the Time of Delivery if earlier); (iii) to make no
amendment or supplement to the Registration Statement or Prospectus, other
than any Pricing Supplement, at any time prior to having afforded each
Agent a reasonable opportunity to review and comment thereon provided,
however, that (1) the foregoing requirement shall not apply to any of
7
the Company's filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which
filings the Company will cause to be delivered to the Agents promptly after
being transmitted for filing with the Commission and (2) any Prospectus
Supplement or Pricing Supplement that merely sets forth the terms or a
description of particular Securities shall only be reviewed and approved by
the Agent or Agents offering such Securities; (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, to promptly use its reasonable best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions in the United States as such
Agent may request (and in such foreign jurisdictions as the Company and the
Agents may mutually agree) 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 as a dealer in securities or to file a general
consent to service of process or subject itself to taxation 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 Procedures), 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 has
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 is necessary during
8
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 forthwith cease such solicitations); and if the Company decides
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, subject to the second proviso below, 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;
provided, further, however, that notwithstanding any other provision of
this Agreement, that if to do so would result in the Company disclosing
information that the Company is required by law, contract or otherwise to
hold in confidence or which the Company believes is in the best interests
of its shareholders to hold in confidence, the Company shall not be
required to prepare and file such amendment or supplement, provided,
further that in any such event such Agent shall have the right to require
the Company to repurchase such Securities from such Agent at the price such
Securities were sold to such Agent by the Company, less the Agent's
commission pursuant to this Agreement, plus accrued interest;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to the Company's shareholders, and deliver to such Agent (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; 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 shareholders 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 termination of the trading restrictions for
the Securities purchased thereunder, as notified to the Company by such
Agent, not to offer, sell, contract to sell or
9
otherwise dispose of any debt securities of the Company that both mature
more than 9 months after such Time of Delivery and are substantially
similar to the Securities, without the prior written consent of such Agent;
provided, that in no event shall borrowings under the Company's revolving
credit agreements and lines of credit or issuances of commercial paper be
deemed to be substantially similar to the Securities;
(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 reasonably in advance of each time the Registration
Statement or the Prospectus is amended or supplemented, including each time
a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus (other than by (i) an amendment relating
solely to securities other than the Securities, (ii) a filing pursuant to
item 5 of Form 8-K, (iii) the Company's quarterly reports filed on Form 10-
Q and (iv) a Pricing Supplement; unless in each case, in the reasonable
judgment of the Agents, the Agents request such documents to be delivered),
and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, 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 is
amended or supplemented, including each time a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus (other
than by (i) an amendment relating solely to securities other than the
Securities, (ii) a filing pursuant to item 5 of Form 8-K, (iii) the
Company's quarterly reports filed on Form 10-Q and (iv) a Pricing
Supplement; unless in each case, in the reasonable judgment of the Agents,
the Agents request such documents to be delivered) 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 Company's
General Counsel, or other counsel for the Company reasonably satisfactory
to such
10
Agent, dated the date of such amendment, supplement, incorporation or Time
of Delivery relating to such sale, as the case may be, in form reasonably
satisfactory to such Agent, to the effect that such Agent may rely on the
opinion of such counsel referred to in Section 6(c) hereof that 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 is
amended or supplemented, including 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 (other than by (i) an amendment relating solely to
securities other than the Securities, (ii) a filing pursuant to item 5 of
Form 8-K and (iii) a Pricing Supplement; unless in each case, in the
reasonable judgment of the Agents, the Agents request such documents to be
delivered), 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 to furnish
forthwith 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 reasonably 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 is
amended or supplemented, including each time a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus (other
than by (i) an amendment relating solely to securities other than the
Securities, (ii) a filing pursuant to item 5 of Form 8-K, (iii) the
Company's quarterly reports filed on Form 10-Q and (iv) a Pricing
Supplement; unless in each case, in the reasonable judgment of the Agents,
the Agents request such documents to be delivered) and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of
11
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 reasonably satisfactory to such Agent,
to the effect that the statements contained in the certificates referred to
in Section 6(i) hereof that 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(i) 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 from
the Company 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 Procedures,
any condition set forth in Section 6(a), 6(e), 6(f) or 6(g) hereof has not
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(e) and 6(g), and that such Agent shall have no duty
or obligation whatsoever to exercise the judgment permitted under such
Sections 6(e) and 6(g) 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, disbursements 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 under any Terms Agreement and the
transactions contemplated hereunder and under any Terms Agreement; (iii)
the cost of printing, producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) 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 reasonable fees and
disbursements of counsel for the Agents in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating services for rating the
Securities; (vi) any filing fees incident to, and the reasonable fees and
disbursements of counsel for the Agents in connection with, 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 reasonable fees and
disbursements of counsel for
12
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 in writing by the
Company; and (x) all other costs and expenses incident to the performance
of its obligations hereunder that 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 by
reference in such Terms Agreement) 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 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) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the Agents,
shall have furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, in form reasonably acceptable to such Agent, 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 that 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
13
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) The Company's General Counsel, or other counsel for the Company
reasonably satisfactory to such Agent, shall have furnished to such Agent their
written opinions, dated the Commencement Date and each applicable date referred
to in Section 4(i) hereof that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be, in form and substance reasonably satisfactory
to such Agent, substantially to the effect that
(i) the Company is a corporation validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own its
properties and conduct its business in all material respects as described in the
Prospectus;
(ii) each subsidiary constituting 10% or more of the consolidated
total assets of the Company as of such date (each such subsidiary being
hereinafter referred to as a "Significant Subsidiary") is a corporation validly
existing and in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and (except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, to such counsel's knowledge free and
clear of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that they
believe that you and they are justified in relying upon such opinions and
certificates);
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus as of the date or dates indicated herein; the Securities
conform in all material respects to the description thereof contained in the
Prospectus; and, if the Securities are to be listed on any securities exchange,
authorization therefor has been given, subject to official notice of issuance
and evidence of satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting documents with
respect to the Securities with such securities exchange and such counsel has no
reason to believe that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust Indenture
Act and constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(v) any series of Securities established on or prior to the date
of such opinion has been duly authorized and established in conformity with the
Indenture,
14
and, when the terms of a particular Security and of its issuance and sale have
been duly authorized and established by all necessary corporate action in
conformity with the Indenture, and such Security has been duly completed,
executed, authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement, such Security will
constitute a legal, valid and binding obligation of the Company entitled to the
benefits of the Indenture and enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles, it being understood that such counsel may (a)
assume that at the time of the issuance, sale and delivery of each Security the
authorization of such series has not been modified or rescinded and there has
not occurred any change in law affecting the validity, legally binding character
or enforceability of such Security and (b) state that as of the date of such
opinion a judgment for money in an action based on Securities denominated in
foreign currencies or currency units in a federal or state court in the United
States ordinarily would be enforced in the United States only in United States
dollars, and that the date used to determine the rate of conversion of the
foreign currency or currency unit in which a particular Security is denominated
into United States dollars will depend upon various factors, including which
court renders the judgment;]
(vi) to the best knowledge of such counsel, there is no action,
suit or proceeding pending or overtly threatened before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries, of a character required to be disclosed in the
Registration Statement that is not adequately disclosed in the Prospectus, and
there is no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an
exhibit, that is not described or filed as required; and the statements included
or incorporated in the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize such matters to
the extent required by law;
(vii) such counsel has been advised by the Commission's staff that
the Registration Statement has become effective under the Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement and the Prospectus (other than the
financial statements, related financial statement schedules and other financial
and statistical information and written information relating to and furnished by
the Agents contained therein or omitted therefrom, and except for the part of
the Registration Statement that constitutes the Form T-1 Statement of
Eligibility and Qualification under the Trust Indenture Act of 1939 of the
Trustee, as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act and the respective rules thereunder;
(viii) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
15
(ix) no consent, approval, authorization or order of any federal
or Missouri court or governmental agency or body is required to be obtained by
the Company for the consummation of the transactions contemplated herein or in
any applicable Terms Agreement, except such as have been obtained under the Act
and the Trust Indenture Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the solicitation by the Agents to
purchase the Securities and such other approvals (specified in such opinion) as
have been obtained;
(x) neither the execution and delivery by the Company of the
Indenture, the issue and sale of the Securities, nor the consummation by the
Company of any other of the transactions herein contemplated nor the fulfillment
by the Company of the terms hereof or of any applicable Terms Agreement will
result in a breach or violation of, or constitute a default under (A) the
articles of incorporation or by-laws of the Company, (B) the terms of any
indenture or other material agreement or instrument known to such counsel and to
which the Company or any of its Significant Subsidiaries is a party or bound,
(C) any judgment, order or decree known to such counsel to be specifically
applicable to the Company or any of its Significant Subsidiaries of any federal
or Missouri court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its Significant
Subsidiaries or (D) any provision of federal or Missouri statute or governmental
regulation applicable to the Company;
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; and
(xi) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Such opinion shall also state that, although such counsel does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, nothing has come to such
counsel's attention that causes such counsel to believe that at the Effective
Date the Registration Statement (other than the financial statements, related
financial statement schedules and other financial and statistical information
and written information relating to and furnished by the Agents contained
therein or omitted therefrom, and except for the part of the Registration
Statement that constitutes the Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of the Trustee, as to which such
counsel need express no opinion) contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus (other than the financial statements, related schedules and other
financial and statistical information and written information furnished by the
Agents contained therein or omitted therefrom as to which such counsel need
express no opinion) includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading
16
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Missouri or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the Agents and (B)
as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (c) include any supplements thereto at the Closing
Date.
(d) Not later than 11:00 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 Prospectus 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 reasonably satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(e) (i) The Company and its subsidiaries 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 prior to
the date of the Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which is material to the Company and its subsidiaries taken as a whole otherwise
than as set forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery and (ii) since the respective dates
as of which information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery there shall not have been any
material decrease in the capital stock of the Company or material increase in
consolidated long-term debt (as such terms are defined in accordance with
generally accepted accounting principles) of the Company and its subsidiaries or
any change, or any development that the Company believes would be reasonably
likely to result in a material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented prior
to the date of the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of such Agent so material
and adverse as to make it impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase Securities from the Company or
the purchase by such Agent of Securities from the Company as principal, as the
case may be, on the terms and in the manner contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
17
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; or (iii) a general moratorium on commercial banking activities in New
York declared by either federal, New York state or Missouri state authorities;
or (iv) the outbreak or material escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war,
if the effect on financial markets of any such event specified in the Clause
(iv) in the judgment of such Agent makes it impracticable or inadvisable to
proceed with the purchase of the 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;
(h) With respect to any Security denominated in a currency other than
the U.S. dollar, more than one currency or a composite currency or any Security
the principal or interest of which is indexed to such currency, currencies or
composite currency, there shall not have occurred a suspension or material
limitation in foreign exchange trading in such currency, currencies or composite
currency by a major international bank, a general moratorium on commercial
banking activities in the country or countries issuing such currency, currencies
or composite currency, the outbreak or escalation of hostilities involving, the
occurrence of any material adverse change in the existing financial, political
or economic conditions of, or the declaration of war or a national emergency by,
the country or countries issuing such currency, currencies or composite currency
or the imposition or proposal of exchange controls by any governmental authority
in the country or countries issuing such currency, currencies or composite
currency if the effect on financial markets of any such event specified in this
paragraph in the judgment of such Agent makes it impracticable or inadvisable to
proceed with the purchase of the 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; and
(i) The Company shall have furnished or caused to be furnished to
such Agent a certificate of an officer 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 reasonably
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
18
Commencement Date or such applicable date, as the case may be, as to the
following matters and as to such other matters as such Agent may reasonably
request:
(a) With respect to any Securities sold at or prior to the Solicitation
Time or Time of Delivery, as the case may be, (i) the Prospectus as amended
or supplemented (including the Pricing Supplement) with respect to such
Securities has 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) of
that certain Distribution Agreement between the Company and the Agents
dated November 24, 1999; (ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission; and (iii) all
requests for additional information on the part of the Commission have been
complied with;
(b) (i) The Company and its subsidiaries have not sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which is material to the Company and its subsidiaries taken as a
whole otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of Delivery
and (ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant Time
of Delivery there has not been any material decrease in the capital stock
of the Company or material increase in consolidated long-term debt (as such
terms are defined in accordance with generally accepted accounting
principles) of the Company and its subsidiaries or any material adverse
change, or any development that the Company believes would be reasonably
likely to result in a material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery.
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,
19
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other prospectus relating to
the Securities, or any amendment or supplement thereto, (i) in reliance upon and
in conformity with written information furnished to the Company by such Agent
expressly for use therein or (ii) that is corrected in any amendment or
supplement to the Registration Statement or the Prospectus, provided that the
Company has performed each of its obligations pursuant to Section 4 hereof in
respect of such amendment or supplement and, to the extent that a prospectus
relating to the Securities was required to be delivered by such Agent under the
Securities Act of 1933, if such Agent, having been furnished by or on behalf of
the Company with copies of the Prospectus as so amended or supplemented,
thereafter fails to deliver such amended or supplemented Prospectus prior to or
concurrently with the delivery of confirmation of the sale of the Securities to
the person asserting such loss, claim, damage or liability.
(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 amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
shall not relieve the indemnifying party from liability under subsection (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the
20
indemnifying party of substantial rights and defenses and (ii) shall not relieve
it from any liability that it may have to any indemnified party otherwise than
under such subsection. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, 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 expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable 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, 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 that
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 to which such loss, claim, damage or liability relates
(before deducting expenses) received by the Company bear to the total
commissions or discounts received by such Agent in respect thereof (before
deducting expenses). 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
21
opportunity to correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
all Agents were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), 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 to which such loss, claim, damage or liability relates exceeds the
amount of any damages that 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 that 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 defaults 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
22
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. This Agreement 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 oral (confirmed
in writing) or written notice of such suspension or termination to such Agent or
the Company, as the case may be; provided, that in the event of such suspension
or termination with respect to any Agent, (i) this Agreement shall remain in
full force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (ii) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party that have
previously accrued or that relate to Securities that are already issued, agreed
to be issued or the subject of a pending offer at the time of such suspension or
termination and (iii) in any event, this Agreement shall remain in full force
and effect insofar as the fourth paragraph of Section 2(a), and Sections 4(d),
4(e)(i), 5, 7, 8 and 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the Administrative
Procedures, all statements, requests, notices and advices hereunder shall be in
writing, or by telephone if promptly confirmed in writing, and if to Bear,
Xxxxxxx & Co. Inc. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Facsimile Transmission No. (000) 000-0000, Attention: Medium Term Note
Department, and if to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Facsimile Transmission No. (000) 000-0000, Attention: Medium Term Note
Desk and if to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile Transmission No. (000) 000-0000 Attention: Medium Term Note
Department; and if to the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to No. 0 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Treasurer (with copies to the Company's General Counsel, Facsimile
Transmission No. (000) 000-0000.
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 Sections 7, 8 and 9 hereof, the officers and directors of the Company and any
person who controls any Agent or the Company, and their respective personal
representatives and successors, 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 merely 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 other than a Saturday or
Sunday, or any other day on which banks in The City of New York, are generally
required or authorized by law or executive order to close (and, with respect to
LIBOR Notes, is also a London Business Day). "London Business Day" means any day
on which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
23
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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.
16. If at any time the Company and any of the Agents determine that the
Company will issue and sell Securities denominated in a currency other than U.S.
dollars, which other currency may include a currency unit, or with respect to
which an index is used to determine the amounts of payments of principal and any
premium and interest, the Company and any such Agent may execute and deliver a
supplement to this Agreement for the purpose of making any appropriate additions
to and modifications of the terms of this Agreement (and the Administrative
Procedures) applicable to such Securities and the offer and sale thereof.
Subject to the Company's obligations pursuant to Section 4(b) hereof, each Agent
agrees not to directly or indirectly solicit offers to purchase or offer to sell
any Security in or to persons of any foreign jurisdiction except as permitted by
applicable law.
17. This Agreement may be amended or supplemented if, but only if, such
amendment or supplement is in writing and is signed by the Company and each
Agent; provided that the Company may from time to time , but without the consent
of any Agent, (i) amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such firm
shall become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto, or (ii) appoint one or more firms as a dealer on
a reverse inquiry basis, whereupon such firm shall become an Agent hereunder on
the same terms and conditions as the other Agents that are parties hereto but
only to the extent and for the purpose of an individual reverse inquiry
transaction or as otherwise agreed to between the Company and such reverse
inquiry dealer. The Company shall give reasonably prompt notice to the other
Agents of each additional Agent. The additional Agent(s) shall sign any
agreement, amendment or supplement giving effect to the addition of any such
firm as an Agent under this Agreement in accordance with the provisions of
Section 17.
If the foregoing is in accordance with your understanding, please sign and
return to us four (4) counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
24
Very truly yours,
XXXXXXX & XXXXX, INCORPORATED
By: _______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Accepted in New York, New York,
as of the date hereof:
BEAR, XXXXXXX & CO. INC.
By:_______________________
Name:
Title:
CHASE SECURITIES INC.
By:______________________
Name:
Title:
_________________________
(Xxxxxxx, Xxxxx & Co.)
25
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Security equal to the principal amount of such Security multiplied by the
appropriate percentage set forth below:
Commission (percentage of
aggregate principal
Range of Maturities amount of Securities sold)
---------------------------------------------- ----------------------------------------
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to less than 15 years
From 15 years to less than 20 years
From 20 years to 30 years
30 years and more
26
ANNEX I
Terms Agreement
The following terms, to the extent applicable, shall be agreed to by the
applicable Agent and the Company in connection with each sale of Securities:
Name of Agent: _____________________
Acting as principal [_]
Acting as agent for the Company [_]
Principal Amount: $______________________
Price to Public: ___% of the principal amount, plus accrued interest, if
any, from ______
Commission (or Discount): ___% of the principal amount
Purchase Price: ____%, plus accrued interest, if any, from _________
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Date(s):
If Floating Rate Note:
Base Rate:
If LIBOR:
LIBOR Reuters Page:
LIBOR Telerate Page:
If CMT:
CMT Telerate Page:
If CD Rate:
If Federal Funds Rate:
If Treasury Rate:
If Commercial Paper Rate:
If Prime Rate:
If 00/xx/ Xxxxxxxx Cost of Funds Rate:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Payment Date(s):
Interest Determination Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
A-I-1
If Original Issue Discount Note, terms:
If Redeemable:
Redemption Commencement Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Repayment Provisions, if any:
Original Issue Date:
Stated Maturity:
Settlement Date and Time:
Other Settlement Terms:
Additional Terms:
Also, in connection with the purchase of Securities by one or more Agents as
principal, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 6(i) of the Distribution
Agreement.
Legal Opinions pursuant to Sections 6(b) and (c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 6(d) of the Distribution Agreement.
Stand-Off Agreement pursuant to Section 4(f) of the Distribution Agreement.
A-I-2
ANNEX II
Xxxxxxx & Xxxxx, Incorporated
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series I
Due Nine Months or More From Date of Issue
(Dated as of November 24, 1999)
Medium-Term Notes, Series I Due From Nine Months or More From Date of Issue
(the "Notes") are to be offered on a continuous basis by Xxxxxxx & Xxxxx,
Incorporated, a Missouri corporation (the "Company"), to or through Bear,
Xxxxxxx & Co. Inc., Chase Securities Inc. and Xxxxxxx, Xxxxx & Co., and any
other agent or agents appointed by the Company from time to time (each, an
"Agent" and, collectively, the "Agents"), pursuant to a Distribution Agreement,
dated November 24, 1999 (the "Distribution Agreement"), by and among the Company
and the Agents. The Distribution Agreement provides for the sale of Notes by
the Company to one or more of the Agents as principal (including for resale to
investors and other purchasers), for the sale of Notes by the Company directly
to investors (as may from time to time be agreed to by the Company and the
related Agent or Agents), in which case each such Agent will act as an agent of
the Company in soliciting purchases of Notes, and for the right of the Company
to sell Notes directly on its own behalf.
If agreed upon by the related Agent or Agents and the Company, Notes shall
be purchased by such Agent or Agents as principal. Such purchases will be made
in accordance with terms agreed upon by the related Agent or Agents and the
Company (which terms, unless otherwise agreed to, shall, to the extent
applicable, include those terms specified in Annex I to the Distribution
Agreement, and be agreed upon orally, with written confirmation prepared by such
Agent or Agents and mailed or sent by facsimile transmission to the Company). If
agreed upon by any Agent or Agents and the Company, the Agent or Agents, acting
solely as agent or agents for the Company, and not as principal, will use
reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes will be issued under an Indenture, dated as of November 24, 1999,
as amended, supplemented or modified from time to time relating to the Notes
(collectively, the "Indenture"), between the Company and The Chase Manhattan
Bank ("Chase"), as trustee (the "Trustee"). The Company has filed a
Registration Statement (as defined in the Distribution Agreement) with the
Securities and Exchange Commission (the "Commission") registering the Notes. A
pricing supplement to the Prospectus (as
A-II-1
defined in the Distribution Agreement) setting forth the purchase price,
interest rate or formula, maturity date and other terms of any Notes (as
applicable) is herein referred to as a "Pricing Supplement."
The Notes will either be issued (a) in book-entry form (each, a "Book-Entry
Note") and represented by one or more fully registered Notes without coupons
(each, a "Global Note") delivered to Chase, as agent for The Depository Trust
Company, New York, New York ("DTC"), and recorded in the book-entry system
maintained by DTC, or (b) in certificated form (each, a "Certificated Note")
delivered to the investor or other purchaser thereof or a person designated by
such investor or other purchaser. Except in the limited circumstances described
in the Prospectus or a Pricing Supplement, owners of beneficial interests in
Book-Entry Notes will not be entitled to physical delivery of Certificated Notes
equal in principal amount to their respective beneficial interests.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Book-Entry Notes will be issued in accordance with the procedures
set forth in Part II hereof and Certificated Notes will be issued in accordance
with the procedures set forth in Part III hereof. Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed thereto in the
Prospectus, the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue date (the "Original
Issue Date"). The Original Issue Date shall
remain the same for all Notes subsequently
issued upon transfer, exchange or substitution
of an original Note regardless of their dates
of authentication.
Maturities: Each Note will mature on a date selected by the
purchaser and agreed to by the Company that is
not less than nine months nor more than fifty
years from its Original Issue Date (the "Stated
Maturity").
Currency/Denominations: Notes will be denominated in, and payments of
principal, premium, if any, and interest, if
any, in respect thereof will be made in, U.S.
dollars and the Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Registration: The Notes will be issued only in fully
registered form.
A-II-2
Base Rates Applicable to Unless otherwise provided in the applicable
Floating Rate Notes: Pricing Supplement, Floating Rate Notes will
bear interest at a rate or rates determined by
reference to the CD Rate, the Commercial Paper
Rate, the Federal Funds Rate, LIBOR, the Prime
Rate, the Treasury Rate, the CMT Rate, the
Eleventh District Cost of Funds Rate or such
other interest rate basis or formula as may be
set forth in the applicable Pricing Supplement,
or by reference to two or more such rates, as
adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating
Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the
Company on and after their respective
Redemption Commencement Dates, if any.
Redemption Commencement Dates, if any, will be
fixed at the time of sale and set forth in the
applicable Pricing Supplement and in the
applicable Note. If no Redemption Commencement
Dates are indicated with respect to a Note,
such Note will not be redeemable at the option
of the Company prior to its Stated Maturity.
The Notes will be subject to repayment at the
option of the Holders thereof in accordance
with the terms of the Notes on their respective
Optional Repayment Dates, if any. Optional
Repayment Dates, if any, will be fixed at the
time of sale and set forth in the applicable
Pricing Supplement and in the applicable Note.
If no Optional Repayment Dates are indicated
with respect to a Note, such Note will not be
repayable at the option of the Holder prior to
its Stated Maturity.
Calculation of Interest: In the case of Fixed Rate Notes, interest
(including payments for partial periods) will
be calculated and paid on the basis of a 360-
day year of twelve 30-day months.
The interest rate on each Floating Rate Note
will be calculated by reference to the
specified Base Rate or Rates plus or minus the
applicable Spread, if any, and/or multiplied by
the applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, accrued interest on each
Floating Rate Note will be calculated by
multiplying its principal amount by an accrued
interest factor. Such accrued
A-II-3
interest factor is computed by adding the
interest factors calculated for each day in the
period for which accrued interest is being
calculated. Unless otherwise provided in the
applicable Pricing Supplement, the interest
factor (expressed as a decimal calculated to
seven decimal places without rounding) for each
such day is computed by dividing the interest
rate applicable to such day by 360 if the CD
Rate, Commercial Paper Rate, Federal Funds
Rate, LIBOR, Prime Rate or Eleventh District
Cost of Funds Rate is an applicable Base Rate,
or by the actual number of days in the year if
the Treasury Rate or the CMT Rate is an
applicable Base Rate. The interest factor for
Floating Rate Notes for which the interest rate
is calculated with reference to two or more
Base Rates will be calculated in each period in
the same manner as if only the lowest, highest
or average of the applicable Base Rates applied
as specified in the applicable Pricing
Supplement.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing Supplement,
interest on each Note will accrue from and
including the Original Issue Date of such Note
for the first interest period or from and
including the most recent Interest Payment Date
to which interest has been paid or duly made
available for payment for all subsequent
interest periods, to but excluding the
applicable Interest Payment Date or the Stated
Maturity, Redemption Date or Optional Repayment
Date (each Stated Maturity, Redemption Date or
Optional Repayment Date is referred to herein
as a "Maturity"). Interest on Notes will be
payable in arrears to the Holders of such Notes
as of the Regular Record Date for each Interest
Payment Date and at Maturity to the Person to
whom the principal of such Notes is payable.
If an Interest Payment Date or the Maturity
with respect to any Fixed Rate Note falls on a
day that is not a Business Day, the required
payment to be made on such day need not be made
on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day and no interest
shall accrue on such payment for the period
from and after such day to the next succeeding
A-II-4
Business Day. If an Interest Payment Date
(other than at Maturity) with respect to any
Floating Rate Note would otherwise fall on a
day that is not a Business Day, such Interest
Payment Date will be postponed to the next
succeeding Business Day and interest will
continue to accrue, except that in the case of
a LIBOR Note, if such next succeeding Business
Day falls in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding Business Day. If the
Maturity of a Floating Rate Note falls on a day
that is not a Business Day, the required
payment need not be made on such day, but may
be made on the next succeeding Business Day as
if made on the date such payment was due, and
no interest on such payment shall accrue for
the period from and after such Maturity to the
date of such payment on the next succeeding
Business Day.
Regular Record Dates. Unless otherwise
specified in an applicable Pricing Supplement,
the Regular Record Date with respect to any
Interest Payment Date for any Note shall be the
date 15 calendar days (whether or not a
Business Day) preceding such Interest Payment
Date.
Interest Payment Dates. Interest payments will
be made at Maturity and on each Interest
Payment Date commencing with the first Interest
Payment Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued between
a Regular Record Date and an Interest Payment
Date will occur on the Interest Payment Date
following the next succeeding Regular Record
Date.
Fixed Rate Notes. Interest payments on Fixed
Rate Notes (other than Original Issue Discount
Notes) will be made semiannually on April 1 and
October 1 of each year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes will be made as specified
in the Floating Rate Note.
Acceptance and Rejection of If agreed upon by any Agent and the Company,
Offers from Solicitations as then such Agent acting solely as agent for the
Agents: Company and not as principal will solicit
purchases of the Notes. Each Agent will
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Notes
A-II-5
solicited by such Agent on an agency basis,
other than those offers rejected by such Agent.
Each Agent has the right, in its discretion
reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and
any such rejection shall not be a breach of
such Agent's agreement contained in the
Distribution Agreement. The Company has the
sole right to accept or reject any proposed
purchase of Notes from the Company, in whole or
in part, and any such rejection shall not be a
breach of the Company's agreement contained in
the Distribution Agreement. Each Agent has
agreed to make reasonable efforts to assist the
Company in obtaining performance by each
purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by
the Company.
Preparation of Pricing If any offer to purchase a Note is accepted by
Supplement: the Company, the Company will promptly prepare
a Pricing Supplement reflecting the terms of
such Note. Information to be included in the
Pricing Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the
date of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Presenting Agent (as
defined below);
5. whether such Notes are being sold to the
Presenting Agent as principal or to an
investor or other purchaser through the
Presenting Agent acting as agent for the
Company;
6. with respect to Notes sold to the
Presenting Agent as principal, whether such
Notes will be resold by the Presenting
Agent to investors and other purchasers at
(i) a fixed public offering price of a
specified percentage of their principal
amount or (ii) at varying prices related to
prevailing market prices at the time of
resale to be determined by the Presenting
Agent;
A-II-6
7. with respect to Notes sold to an investor
or other purchaser through the Presenting
Agent acting as agent for the Company,
whether such Notes will be sold at (i)
100% of their principal amount or (ii) a
specified percentage of their principal
amount;
8. the Presenting Agent's discount or
commission;
9. net proceeds to the Company;
10. the information with respect to the terms
of the Notes set forth below (whether or
not the applicable Note is a Book-Entry
Note) under "Procedures for Book-Entry
Notes Settlement Procedures," items (ii),
(iii), (vii), (viii) and (ix); and
11. any other terms of the Notes material to
investors or other purchasers of the Notes
not otherwise specified in the Prospectus.
The Company shall use its reasonable best
efforts to send such Pricing Supplement by
electronic mail, telecopy or overnight express
(for delivery by the close of business on the
applicable trade date, but in no event later
than noon, New York City time, on the Business
Day next following the trade date) to the Agent
that made or presented the offer to purchase
the applicable Note (the "Presenting Agent") at
the following address:
If to Bear, Xxxxxxx & Co. Inc.:
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium Term Note Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
A-II-7
If to Chase Securities Inc.:
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium Term Note Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Xxxxxxx, Xxxxx & Co.:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
27th Floor
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will provide a
copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes or
its agent. Pursuant to Rule 434 ("Rule 434") of
the Securities Act of 1933, as amended (the
"Act"), the Pricing Supplement may be delivered
separately from the Prospectus. Outdated
Pricing Supplements (other than those retained
for files) will be destroyed.
The Company will arrange to file such Pricing
Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b)
under the Act.
A-II-8
Settlement: The receipt of immediately available funds by
the Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement." Offers accepted by the Company
will be settled in three Business Days, or at
such time as the purchaser, the applicable
Agent and the Company shall agree, pursuant to
the timetable for settlement set forth in Parts
II and III hereof under "Settlement Procedures"
with respect to Book-Entry Notes and
Certificated Notes, respectively (each such
date fixed for settlement is hereinafter
referred to as a "Settlement Date"). If
procedures A and B of the applicable Settlement
Procedures with respect to a particular offer
are not completed on or before the time set
forth under the "Settlement Procedures
Timetable," such offer shall not be settled
until the Business Day following the completion
of Settlement Procedures A and B or such later
date as the purchaser and the Company shall
agree.
In the event of a purchase of Notes by an Agent
as principal, appropriate settlement details
will be pursuant to the timetable for
settlement set forth in Parts II and III hereof
under "Settlement Procedures" with respect to
Book-Entry Notes and Certificated Notes,
respectively, or otherwise as agreed between
the Agent and the Company.
Procedure for Changing Rates When a decision has been reached to change the
or Other Variable Terms: interest rate or any other variable term on any
Notes being sold by the Company, the Company
will promptly advise the Agents by telephone
(confirmed in writing) or facsimile
transmission and such Agents will forthwith
suspend solicitation of offers to purchase such
Notes. The Agent or Agents will telephone the
Company with recommendations as to the changed
interest rates or other variable terms. At such
time as the Company advises the Agents of the
new interest rates or other variable terms,
such Agents may resume solicitation of offers
to purchase such Notes. Until such time only
"indications of interest" may be recorded.
Immediately after acceptance by the Company of
an offer to purchase Notes at a new interest
rate or new variable term, the Company, the
Presenting Agent and Chase shall follow the
procedures
A-II-9
set forth under the "Settlement Procedures."
Suspension of Solicitation; The Company may instruct the Agents to suspend
Amendment or Supplement: solicitation of offers to purchase Notes at any
time by telephone (confirmed in writing) or in
writing. Each Agent receiving such instructions
will forthwith suspend solicitation of offers
to purchase Notes from the Company until such
time as the Company has advised the Agents that
solicitation of offers to purchase may be
resumed. If the Company decides to amend or
supplement the Registration Statement
(including incorporating any documents by
reference therein) or the Prospectus (other
than to change interest rates or other variable
terms with respect to the offering of the
Notes), it will promptly advise each Agent and
will furnish each Agent and counsel to the
Agents with copies of the proposed amendment or
supplement (including any document proposed to
be incorporated by reference therein but
excluding any Pricing Supplements unless
otherwise provided herein); provided, however,
that (1) the foregoing requirement shall not
apply to any of the Company's filings with the
Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended,
copies of which filings the Company will cause
to be delivered to the Agents promptly after
being transmitted for filing with the
Commission and (2) any Prospectus Supplement or
Pricing Supplement that merely sets forth the
terms or a description of particular Securities
shall only be reviewed and approved by the
Agent or Agents offering such Securities. One
copy of such filed document, along with a copy
of the cover letter sent to the Commission,
will be delivered, mailed or telecopied to
Bear, Xxxxxxx & Co. Inc. at Medium Term Note
Department, 000 Xxxx Xxxxxx, 0/xx/ Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopy: (000) 000-0000;
to Chase Securities Inc. at Medium Term Note
Desk, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Telecopy: (000) 000-0000 and to Xxxxxxx,
Sachs & Co. at Credit Department, Credit
Control-Medium Term Notes, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopy: (000) 000-0000.
For record keeping purposes, one copy of each
such amendment or supplement shall also
A-II-10
be delivered, mailed or telecopied to Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxxxxxxx, Esq., Telecopy: (212)
319-4090.
In the event that at the time the solicitation
of offers to purchase Notes from the Company is
suspended (other than to change interest rates
or other variable terms) there are any offers
to purchase Notes that have been accepted by
the Company that have not been settled, the
Company will promptly advise the Agents and
Chase whether such offers may be settled and
whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the
time of the suspension may be delivered in
connection with the settlement of such offers.
The Company will have the sole responsibility
for such decision and for any arrangements that
may be made in the event that the Company
determines that such offers may not be settled
or that copies of such Prospectus may not be so
delivered.
Delivery of Prospectus and A copy of the most recent Prospectus and the
Applicable Pricing Supplement: applicable Pricing Supplement, which pursuant
to Rule 434 may be delivered separately from
the Prospectus, must accompany or precede the
earlier of (a) the written confirmation of a
sale sent to an investor or other purchaser or
his agent and (b) the delivery of Notes to an
investor or other purchaser or his agent.
Authenticity of Signatures: The Agents will have no obligation or liability
to the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee
on any Note.
Documents Incorporated by The Company shall supply the Agents with an
Reference: adequate supply of all documents incorporated
by reference in the Registration Statement and
the Prospectus.
Business Day: "Business Day" means, unless otherwise
specified in the applicable Pricing Supplement,
any day other than a Saturday or Sunday, or any
other day on which banks in The City of New
York, are generally required or authorized by
law or executive order to close (and, with
respect to LIBOR Notes, is also a London
Business Day). "London Business Day" means any
day on which dealings in deposits in U.S.
dollars are transacted
A-II-11
in the London interbank market.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of Book-Entry Notes for eligibility in
the book-entry system maintained by DTC, Chase 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 Chase to DTC, dated November 19, 1999, and a Medium-Term Note
Certificate Agreement, dated December 2, 1988, between Chase and DTC (the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued as Book-Entry Notes
having the same Original Issue Date, interest
rate, Stated Maturity and redemption and/or
repayment terms (collectively, the "Fixed Rate
Terms") will be represented initially by a
single Global Note and all Floating Rate Notes
issued as Book-Entry Notes having the same
Original Issue Date, Base Rate (which may be
the Commercial Paper Rate, the Treasury Rate,
LIBOR, the CD Rate, the Federal Funds Rate, the
Prime Rate, CMT Rate or Eleventh District Cost
of Funds Rate or any other rate set forth in
the applicable Pricing Supplement by the
Company), Initial Interest Rate, Index
Maturity, Spread or Spread Multiplier, if any,
Minimum Interest Rate, if any, Maximum Interest
Rate, if any, Stated Maturity, redemption
and/or repayment terms, if any, Initial
Interest Reset Date, Interest Reset Date(s) and
Interest Determination Date(s) (collectively,
the "Floating Rate Terms") will be represented
initially by a single Global Note.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's (the "CUSIP Service
Bureau") for the reservation of one series of
CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which have been
reserved for and
A-II-12
relating to Book-Entry Notes and the Company
has delivered to Chase and DTC such list of
such CUSIP numbers. The Company will assign
CUSIP numbers to Book-Entry Notes as described
below under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned
to Book-Entry Notes. Chase will notify the
Company at any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to
Book-Entry Notes, and, if it deems necessary,
the Company will reserve additional CUSIP
numbers for assignment to Book-Entry Notes.
Upon obtaining such additional CUSIP numbers,
the Company will deliver a list of such
additional numbers to Chase and DTC. Book-Entry
Notes having an aggregate principal amount in
excess of $400,000,000 and otherwise required
to be represented by the same Global Note will
instead be represented by two or more Global
Notes that shall all be assigned the same CUSIP
number.
Registration: Each Global Note will be registered in the name
of Cede & Co., as nominee for DTC, on the
register maintained by Chase under the
Indenture. The beneficial owner of a Book-Entry
Note (i.e., an owner of a beneficial interest
in a Global Note) (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in DTC
(with respect to such Book-Entry Note, the
"Participants") to act as agent for such
beneficial owner in connection with the book-
entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such Book-Entry
Note in the account of such Participants. The
ownership interest of such beneficial owner in
such Book-Entry Note will be recorded through
the records of such Participants or through the
separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of beneficial interests in a Global
Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
A-II-13
beneficial transferors and transferees of such
Global Note.
Exchanges: Chase may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying
(a) the CUSIP numbers of two or more Global
Notes outstanding on such date that represent
Book-Entry Notes having the same Fixed Rate
Terms or Floating Rate Terms, as the case may
be (but not the same Original Issue Dates), and
for which interest 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 for the related Book-Entry Notes, on which
such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new
CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
Participants (including Chase) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, Chase 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 Notes to
be exchanged will no longer be valid. On the
specified exchange date, Chase will exchange
such Global Notes for a single Global Note
bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if
the Global Notes to be exchanged exceed
$400,000,000 in aggregate principal amount, one
replacement Global Note will be authenticated
and issued to represent $400,000,000 in
aggregate principal amount of the exchanged
Global Notes and an additional Global Note or
Notes will be authenticated and issued to
represent any remaining principal amount of
such Global Notes (see "Denominations" below).
Denominations: Book-Entry Notes will be issued in
denominations of $1,000 and integral multiples
in excess thereof of $1,000 unless otherwise
set forth in the applicable Prospectus
Supplement. Global Notes will be
A-II-14
denominated in principal amounts not in excess
of $400,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in
excess of $400,000,000 would, but for the
preceding sentence, be represented by a single
Global Note, then one Global Note will be
issued to represent $400,000,000 principal
amount of such Book-Entry Note or Notes and an
additional Global Note or Notes will be issued
to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case,
each of the Global Notes representing such
Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Payments of Principal, Payments of Interest Only. Promptly after each
Premium, if any, and Interest: Regular Record Date, Chase will deliver to the
Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid
on each Book-Entry Note on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with Maturity) and the
total of such amounts (to the extent then
ascertainable). DTC will confirm the amount
payable on each Book-Entry Note on such
Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's. On
such Interest Payment Date, the Company will
pay to Chase in immediately available funds,
and Chase in turn will pay to DTC, such total
amount of interest due (other than at
Maturity), at the times and in the manner set
forth below under "Manner of Payment."
Notice of Interest Rates. Promptly after each
Interest Determination Date for Floating Rate
Notes issued as Book-Entry Notes, the
Calculation Agent will notify each of Xxxxx'x
Investors Service, Inc. and Standard & Poor's
of the interest rates determined as of such
Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, Chase will deliver
to the Company and DTC a written list of
principal, interest (to the extent then
ascertainable) and premium, if any, to be paid
on each Book-Entry Note maturing or otherwise
becoming due in the following month. Chase, the
Company and DTC will confirm the amounts of
such principal, premium and interest payments
with respect to a Book-Entry Note on or about
the fifth Business
A-II-15
Day preceding the Maturity of such Book-Entry
Note. At such Maturity, the Company will pay to
Chase in immediately available funds, and Chase
in turn will pay to DTC, the principal amount
of such Note, together with interest and
premium, if any, due at such Maturity, at the
times and in the manner set forth below under
"Manner of Payment." Promptly after payment to
DTC of the principal, interest and premium, if
any, due at the Maturity of such Book-Entry
Note, the Trustee will cancel the Global Note
representing such Book-Entry Note and deliver
it to the Company with an appropriate debit
advice. 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
Notes as of the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Book-Entry Notes on any Interest Payment Date
or at Maturity shall be paid by the Company to
Chase in funds available for use by Chase no
later than noon, New York City time, on such
date. The Company will make such payment on
such Book-Entry Notes by instructing Chase to
withdraw funds from an account maintained by
the Company at Chase or by making such payment
to an account specified by Chase. The Company
will confirm such instructions in writing to
Chase. As soon as possible thereafter, Chase
will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for
immediate use by DTC, each payment of interest,
principal and premium, if any, due on a Book-
Entry Note on such date. Thereafter on such
date, DTC 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 Notes are recorded in the book-entry
system maintained by DTC. Neither the Company
nor Chase shall have any responsibility or
liability for the payment by DTC of the
principal of, premium, if any, or interest on,
the Book-Entry Notes to such
A-II-16
Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Book-Entry Note.
Settlement Procedures: Settlement Procedures with regard to each Book-
Entry Note sold by an Agent, as agent of the
Company, or purchased by an Agent, as
principal, will be as follows:
A. The Presenting Agent will advise the
Company by telephone, confirmed by
facsimile, of the following settlement
information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount.
3. Fixed Rate Notes:
(a) interest rate;
(b) interest payment dates; and
(c) whether such Fixed Rate Note is being
issued as an Original Issue Discount Note
and, if so, the terms thereof.
(d) whether such Fixed Rate Note is being
issued as an amortizing note and, if so,
the amortization schedule. Floating Rate
Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) index maturity;
(i) calculation agent;
A-II-17
(j) maximum interest rate, if any;
(k) minimum interest rate, if any;
(l) calculation date;
(m) interest determination dates; and
(n) whether such Floating Rate Note is being
issued as an Original Issue Discount Note
and, if so, the terms thereof.
4. price to public of such Book-Entry Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Presenting Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity.
8. Redemption provisions, if any, including:
Redemption Commencement Date, Initial
Redemption Percentage and Annual
Redemption Percentage Reduction.
9. Optional Repayment Date(s) and repayment
provisions, if any.
10. Net proceeds to the Company.
11. Presenting Agent's discount or commission
(determined in accordance with Section
2(a) of the Distribution Agreement).
12. Name of Presenting Agent (and whether such
Note is being sold to the Presenting Agent
as principal or to an investor or other
purchaser through the Presenting Agent
acting as agent for the Company).
13. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. The Company will assign a CUSIP number to
the Global Note representing such Book-
Entry Note and then advise Chase by
facsimile transmission or other electronic
transmission of the above settlement
information received from the Presenting
Agent, such CUSIP number and the
A-II-18
name of the Presenting Agent.
X. Xxxxx will communicate to DTC and the
Presenting Agent through DTC's Participant
Terminal System, a pending deposit message
specifying the following settlement
information:
1. The information set forth in Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of
Chase and the Presenting Agent.
3. Identification of the Global Note as a
Fixed Rate Note or Floating Rate Note.
4. Initial Interest Payment Date for such
Global Note, number of days by which such
date succeeds the related record date for
DTC 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 Note
representing such Book-Entry Note.
6. Whether such Global Note represents any
other Book-Entry Notes.
7. The Company or Chase will advise the
Presenting Agent by telephone of the CUSIP
number of the Global Note representing
such Book-Entry Note.
8. Whether such Global Note is an amortizing
note (by an appropriate notation) in the
comments field of DTC's Participant
Terminal System.
DTC will arrange for each pending deposit
message described above to be transmitted to
Standard & Poor's, which will use the
information in the message to include certain
terms of the related Book-Entry Note in the
appropriate daily bond report published by
Standard & Poor's.
D. The Company will complete and deliver to
the Trustee a Global Note representing
such Book-
A-II-19
Entry Note in a form that has been
approved by authorized officers of the
Company pursuant to the Indenture, the
Agents and the Trustee.
E. The Trustee will authenticate the Global
Note representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to
the participant account of the Trustee
maintained by DTC.
X. Xxxxx will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Book-
Entry Note to Chase's participant account
and credit such Book-Entry Note to the
participant account of the Presenting
Agent maintained by DTC and (ii) to debit
the settlement account of the Presenting
Agent and credit the settlement account of
Chase maintained by DTC, in an amount
equal to the price of such Book-Entry Note
less such Presenting Agent's discount or
commission. Any entry of such a deliver
order shall be deemed to constitute a
representation and warranty by Chase to
DTC that (i) the Global Note representing
such Book-Entry Note has been issued and
authenticated and (ii) Chase is holding
such Global Note pursuant to the
Certificate Agreement.
H. In the case of Book-Entry Notes sold
through the Presenting Agent, as agent,
the Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Book-Entry Note to the
Presenting Agent's participant account and
credit such Book-Entry Note to the
participant account of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants
and credit the settlement account of the
Presenting Agent maintained by DTC in an
amount equal to the initial public
offering price of such Book-Entry Note.
A-II-20
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. Upon receipt of such funds, Chase will
credit to an account of the Company
maintained at Chase or pay to an account
otherwise specified by the Company funds
available for immediate use in the amount
transferred to Chase in accordance with
Settlement Procedure X.
X. Xxxxx will send a copy of the Global Note
by first class mail to the Company
together with a statement setting forth
the total principal amount of Notes of
each series that have been issued under
the Indenture (whether or not Outstanding)
as of the related Settlement Date, the
principal amount of Notes Outstanding as
of the related Settlement Date after
giving effect to such transaction and all
other offers to purchase Notes of which
the Company has advised Chase but that
have not yet been settled.
L. In the case of Book-Entry Notes sold
through the Presenting Agent, as agent,
the Presenting Agent will confirm the
purchase of such Book-Entry Note to the
investor or other purchaser either by
transmitting to the Participant with
respect to such Book-Entry Note a
confirmation order through DTC's
Participant Terminal System or by mailing
a written confirmation to such investor or
other purchaser.
Settlement Procedures For offers to purchase Book-Entry Notes
Timetable: 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 or
within one hour following the
trade
A-II-21
B 12:00 noon on the trade date
or within one hour following
the trade
C No later than the close of
business on the trade date
D 3:00 p.m. on the Business Day
before the Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:00 p.m. on Settlement Date
X-X 5:00 p.m. on Settlement Date
If a sale is to be settled more than one
Business Day after the trade date, Settlement
Procedures A, B, and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such
trade date. In connection with a sale that 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 noon 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 Note is
rescheduled or cancelled, Chase will deliver to
DTC, through DTC's Participant Terminal System,
a cancellation message to such effect by no
later than 5:00 p.m., New York City time, on
the Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure G, Chase may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to
A-II-22
debit such Book-Entry Note to the participant
account of Chase maintained at DTC. DTC will
process the withdrawal message, provided that
such participant account contains a principal
amount of the Global Note representing such
Book-Entry Note that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all the
Book-Entry Notes represented by a Global Note,
the Trustee will xxxx such Global Note
"cancelled", make appropriate entries in its
records and send such cancelled Global Note to
the Company. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. If withdrawal messages
are processed with respect to a portion of the
Book-Entry Notes represented by a Global Note,
Chase will exchange such Global Note for two
Global Notes, one of which shall represent the
Book-Entry Notes for which withdrawal messages
are processed and shall be cancelled
immediately after issuance, and the other of
which shall represent the other Book-Entry
Notes previously represented by the surrendered
Global Note and shall bear the CUSIP number of
the surrendered Global Note. In the case of any
Book-Entry Note sold through the Presenting
Agent, as agent, if the purchase price for any
Book-Entry Note is not timely paid to the
Participants with respect to such Book-Entry
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the related
Presenting Agent may enter SDFS deliver orders
through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures G and H, respectively.
Thereafter, Chase will deliver the withdrawal
message and take the related actions described
in the preceding paragraph. If such failure has
occurred for any reason other than default by
the applicable Presenting Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such
Presenting Agent on an equitable basis for its
loss of the use of funds during the period when
the funds were credited to the account of
A-II-23
the Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note,
DTC 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 a Book-Entry Note that was to have been
represented by a Global Note also representing
other Book-Entry Notes, the Trustee will
provide, in accordance with Settlement
Procedures D and E, for the authentication and
issuance of a Global Note representing such
remaining Book-Entry Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Certificated Notes will be issued in
denominations of $1,000 and integral multiples
of $1,000 in excess thereof unless otherwise
indicated in the applicable Pricing Supplement.
A-II-24
Payments of Principal, Upon presentment and delivery of the
Premium, if any, and Interest: Certificated Note, Chase upon receipt of
immediately available funds from the Company
will pay the principal amount of each
Certificated Note at Maturity and premium, if
any, and the final installment of interest in
immediately available funds. All interest
payments on a Certificated Note, other than
interest due at Maturity, will be made at the
Corporate Trust Office; provided, however, that
such payment of interest may be made, at the
option of the Company by check to the address
of the person entitled thereto as such address
shall appear in the Security Register.
Notwithstanding the foregoing, holders of
$1,000,000 or more in aggregate principal
amount of Certificated Notes having the same
Interest Payment Dates shall, at the option of
the Company, be entitled to receive payments of
interest (other than at Maturity) by wire
transfer of immediately available funds if
appropriate wire transfer instructions and
identifying information concerning such holder
to be found in the Security Register have been
received in writing by Chase by the Regular
Record Date (any such wire transfer
instructions received by Chase shall remain in
effect until revoked by such Holder).
Chase will provide monthly to the Company a
list of the principal, premium, if any, and (to
the extent then ascertainable) interest to be
paid on Certificated Notes maturing in the next
succeeding month. Chase will be responsible for
withholding taxes on interest paid as required
by applicable law, but shall be relieved from
any such responsibility if it acts in good
faith and in reliance upon an opinion of
counsel.
Certificated Notes presented to Chase at
Maturity for payment will be cancelled by the
Trustee. All cancelled Certificated Notes held
by the Trustee shall be disposed of in
accordance with its customary procedures, and
the Trustee shall furnish to the Company a
certificate with respect to such disposition.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall
be as follows:
A-II-25
A. The Presenting Agent will advise the
Company by telephone, confirmed by
facsimile, of the following settlement
information with regard to each
Certificated Note:
1. Exact name in which the Certificated
Note(s) is (are) to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any, and
interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount.
5. Authorized denomination.
6. Fixed Rate Notes:
(a) interest rate;
(b) interest payment dates; and
(c) whether such Fixed Rate Note is being
issued as an Original Issue Discount
Note, if so, the terms thereof.
Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) index maturity;
(i) calculation agent;
(j) maximum interest rate, if any;
(k) minimum interest rate, if any;
(l) calculation date;
(m) interest determination dates; and
A-II-26
(n) whether such Floating Rate Note is
being issued as an Original Issue
Discount Note and, if so, the terms
thereof.
7. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Presenting Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity.
11. Net proceeds to the Company.
12. Presenting Agent's discount or commission
(determined in accordance with Section 2(a)
of the Distribution Agreement).
13. Redemption provisions, if any, including:
Redemption Commencement Date, Initial
Redemption Percentage and Annual Redemption
Percentage Reduction.
14. Optional Repayment Date(s) and repayment
provisions, if any.
15. Name of Presenting Agent (and whether such
Note is being sold to the Presenting Agent
as principal or to an investor or other
purchaser through the Presenting Agent
acting as agent for the Company).
16. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. After receiving such settlement information
from the Presenting Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone. The Company will
cause the Trustee to issue, authenticate
and deliver the Certificated Notes.
A-II-27
X. Xxxxx will complete the preprinted 4-ply
Certificated Note packet containing the
following documents in forms approved by
the Company, the Presenting Agent and the
Trustee consistent with the Indenture, and
will make three copies thereof (herein
called "Stub 1," "Stub 2" and "Stub 3"):
1. Certificated Note with the Presenting
Agent's confirmation, if traded on a
principal basis, or the Presenting Agent's
customer confirmation, if traded on an
agency basis.
2. Stub 1 - for Trustee.
3. Stub 2 - for Presenting Agent.
4. Stub 3 - for the Company.
D. With respect to each trade, Chase will
deliver the Certificated Notes and Stub 2
thereof to the Presenting Agent at the
following applicable address: If to Bear,
Xxxxxxx & Co. Inc. to Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, 0/xx/ Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Medium
Term Note Department, if to Chase
Securities Inc., to Chase Securities Inc.,
00 Xxxxx Xxxxxx, Xxxx 000, Window 17 or 18,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxxxxx and if to Xxxxxxx, Sachs & Co. to
Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxxx Xxxxxx, 6th
Floor. The Trustee will keep Stub 1. The
Presenting Agent will acknowledge receipt
of the Certificated Note through a broker's
receipt and will keep Stub.
2. Delivery of the Certificated Note will be
made only against such acknowledgment of
receipt. Upon determination that the
Certificated Note has been authorized,
delivered and completed as aforementioned,
the Presenting Agent will wire the net
proceeds of the Certificated Note after
deduction of its applicable discount or
commission to the Company pursuant to
standard wire instructions given by the
Company.
A-II-28
E. In the case of Certificated Notes sold
through the Presenting Agent, as agent, the
Presenting Agent will deliver the
Certificated Note (with confirmations), as
well as a copy of the Prospectus and the
applicable Pricing Supplement or
Supplements received from the Trustee to
the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the
Company.
Settlement Procedures For offers to purchase Certificated Notes
Timetable: accepted by the Company, Settlement Procedures
"A" through "F" set forth above shall be
completed as soon as possible following the
trade 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 or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through
the Presenting Agent, as agent, in the event
that a purchaser of a Certificated Note from
the Company either fails to accept delivery of
or make payment for a Certificated Note on the
Settlement Date, the Presenting Agent will
forthwith notify the Trustee and the Company by
telephone, confirmed in writing, and return
such Certificated Note and related stub to the
Trustee.
A-II-29
The Trustee, upon receipt of the Certificated
Note and related stub from the Presenting
Agent, will immediately advise the Company and
the Company will promptly arrange to credit the
account of the Presenting Agent in an amount of
immediately available funds equal to the amount
previously paid by such Presenting Agent in
settlement for such Certificated Note. Such
credits will be made on the Settlement Date if
possible, and in any event not later than the
Business Day following the Settlement Date;
provided that the Company has received notice
on the same day. If such failure has occurred
for any reason other than failure by such
Presenting Agent to perform its obligations
hereunder or under the Distribution Agreement,
the Company will reimburse such Presenting
Agent on an equitable basis for its loss of the
use of funds during the period when the funds
were credited to the account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the failure occurred,
the Trustee will cancel and dispose of the
Certificated Note (and related stubs) in
accordance with its customary procedures, make
appropriate entries in its records to reflect
the fact that the Certificated Note was never
issued, and accordingly notify in writing the
Company.
A-II-30
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 published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements and financial
statement schedules audited by them and incorporated by reference in
the Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations thereunder.
(iii) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of
a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection
of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or that any material
modifications should be made for them to be in conformity with generally
accepted accounting principles;
(B) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply
A-III-1
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;
(C) as of the date of the latest available financial statements of
the Company and at a subsequent date not more than five business days prior
to the date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock under the Company's
[Dividend Reinvestment and Stock Purchase Plan, Employee Stock Ownership
Plan, Retirement Savings Plan, Stock Option and Incentive Plans] or other
similar plans, and the incurrence of capital stock issuance expenses) of
the Company or in the preferred stock or other securities of the Company's
subsidiaries, or any increase in the consolidated long-term debt of the
Company and its subsidiaries or any decreases in consolidated net assets of
the Company and its subsidiaries or other items specified by the Agents, or
any increases in any items specified by the Agents, in each case as
compared with the amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases that the Prospectus discloses have occurred
or may occur or that are described in such letter; and
(D) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus ending as of the
date of the latest available financial statements of the Company and at a
subsequent date referred to in clause (C) there were any decreases in
consolidated revenues or operating profit or basic per share amounts of
consolidated net income of the Company 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 that the Prospectus discloses have
occurred or may occur or that are described in such letter;
(iv) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
that are derived from the general accounting records of the Company
and its subsidiaries, that 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
A-III-2
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 to the Prospectus in this Annex III 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 an
agreement to purchase Securities as principal requiring the delivery of such
letter under Section 4(j) thereof.
A-III-3
