$500,000,000
XXXXXXX XXXXX, INC.
Medium-Term Notes, Series E
DISTRIBUTION AGREEMENT
March 21, 1996
CS First Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers
Xxxxxx Brothers Inc. (including
Xxxxxx Government Securities Inc.)
3 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Salomon Brothers Inc
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTION. Xxxxxxx Xxxxx, Inc., a Florida corporation (the
"Issuer"), confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents" (which terms shall include Xxxxxx Government
Securities Inc., an affiliate of Xxxxxx Brothers Inc.)) with respect to the
issue and sale from time to time by the Issuer of up to $500,000,000 (or the
U.S. dollar equivalent in certain specified foreign currencies or currency
units) aggregate principal amount of its medium-term notes,
series E, registered under the registration statements referred to in Section
2(a) (any such medium-term notes, series E being hereinafter referred to as the
"Securities"). Securities which are subordinated in priority of payment to
Senior Indebtedness of the Issuer will be issued under an indenture dated as of
March 16, 1995 (as it may be supplemented or amended from time to time, the
"Subordinated Indenture"), between the Issuer and Chemical Bank, as trustee (the
"Subordinated Trustee"). Securities which are senior in priority of payment
will be issued under an indenture dated as of March 16, 1995 (as it may be
supplemented or amended from time to time, the "Senior Indenture") between the
Issuer and The First National Bank of Chicago, as trustee (the "Senior
Trustee"). The Subordinated Indenture and the Senior Indenture are collectively
referred to herein as the "Indenture". The Subordinated Trustee and the Senior
Trustee are collectively referred to as the "Trustee".
The Securities shall have the maturity ranges, annual interest rates
or interest rate formulas, if any, currencies or currency units, redemption or
sinking fund provisions and other terms set forth in the Prospectus referred to
in Section 2(a) as it may be amended or supplemented from time to time,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"). The Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants to, and agrees with, each Agent as follows:
(a) A registration statement (No. 33-64305), including a
prospectus, relating to debt securities of the Issuer, including the
Securities ("Registered Securities"), has been filed with the Securities
and Exchange Commission ("Commission") and has become effective. Pursuant
to Rule 429 under the Securities Act of 1933, as amended (the "Act"), the
prospectus also relates to debt securities of the Issuer registered
pursuant to registration statement No. 33-57597 filed with the Commission
which has also become effective. Such registration statements, as amended
as of the Closing Date (as defined in Section 3(e) hereof), are hereinafter
referred to as the "Registration Statement", and the prospectus included in
such Registration Statement, as supplemented as of the Closing Date with
respect to the offering of the Securities, including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to amending or supplementing
-2-
the Prospectus shall be deemed to include the filing of materials
incorporated by reference in the Prospectus after the Closing Date and any
reference in this Agreement to any amendment or supplement to the
Prospectus shall be deemed to include any such materials incorporated by
reference in the Prospectus after the Closing Date.
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Act, the Trust Indenture Act
of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the Closing Date, the Registration Statement and the
Prospectus, and at each of the times of acceptance and of delivery referred
to in Section 6(a) hereof and at each of the times of amendment or
supplementing referred to in Section 6(b) hereof (the Closing Date and each
such time being herein sometimes referred to as a "Representation Date"),
the Registration Statement and the Prospectus as then amended or
supplemented, will conform in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Issuer by any
Agent specifically for use therein.
(c) 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 Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
or any amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a
-3-
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the Issuer
and its consolidated subsidiaries as of the dates indicated and the results
of their operations and the changes in their consolidated cash flows for
the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein; and the pro forma financial information, and
the related notes thereto, if any, included or incorporated by reference in
the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and the
Exchange Act, as applicable.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Issuer and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and except
as set forth or contemplated in the Prospectus neither the Issuer nor any
of its subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Issuer and its
subsidiaries taken as a whole.
(f) The Issuer has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Issuer
and its subsidiaries taken as a whole.
-4-
(g) Each of the Issuer's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Issuer
and its subsidiaries taken as a whole.
(h) Each of this Agreement and any other applicable Terms Agreement
has been duly authorized, executed and delivered by the Issuer and
constitutes the valid and binding agreement of the Issuer, except as rights
to indemnity and contribution hereunder or thereunder may be limited by
applicable law.
(i) The Securities have been duly authorized, and, when issued and
delivered in accordance with the Indenture and delivered to and paid for by
the purchasers thereof in accordance with this Agreement and any applicable
Terms Agreement, will have been duly executed, issued and delivered by the
Issuer and will constitute valid and binding obligations of the Issuer
entitled to the benefits provided by the Indenture; the Indenture has been
duly authorized, executed and delivered by the Issuer and qualified under
the Trust Indenture Act and constitutes a valid and binding instrument; and
the Indenture conforms, and the Securities of any particular issuance of
Securities will conform, to the descriptions thereof in the Prospectus as
amended or supplemented to relate to such issuance of Securities.
(j) Neither the Issuer nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Articles of Incorporation or Articles of Association, as
the case may be, or By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer or any of
its subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Issuer and its
subsidiaries taken as a whole or to the holders of the Securities; the
issue and sale of the Securities and the performance by the Issuer of all
of its obligations under the Securities, the Indenture, this Agreement and
-5-
any Terms Agreement, and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach of any
of the 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 Issuer or any of its subsidiaries is a party or by
which the Issuer or any of its subsidiaries is bound or to which any of the
property or assets of the Issuer or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Articles
of Incorporation or the By-Laws of the Issuer or any applicable law or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Issuer, its subsidiaries or any
of their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Issuer of the other transactions
contemplated by this Agreement, any applicable Terms Agreement or the
Indenture, except such as have been, or will have been prior to the Closing
Date (as defined in Section 3(e) 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 offer and sale of the Securities.
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
the Issuer, threatened to which the Issuer or any of its subsidiaries is or
may be a party or to which any property of the Issuer or any of its
subsidiaries is or may be the subject which, if determined adversely to the
Issuer or any of its subsidiaries, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, prospects, management, consolidated financial position,
stockholders' equity or results of operations of the Issuer and its
subsidiaries taken as a whole, and, to the best of the Issuer's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required.
(l) Immediately after any sale of Securities by the Issuer hereunder
or under any applicable Terms
-6-
Agreement, the aggregate amount of Securities which shall have been issued
and sold by the Issuer hereunder or under any Terms Agreement and of any
registered Securities (other than the Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of Registered Securities registered under the Registration
Statement.
3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPAL. (a) Subject to
the terms and conditions stated herein, the Issuer hereby appoints each of the
Agents as an agent of the Issuer for the purpose of soliciting or receiving
offers to purchase the Securities from the Issuer by others. Except as
otherwise provided herein, so long as this Agreement shall remain in effect with
respect to any Agent, the Issuer shall not, without the consent of any such
Agent, solicit or accept offers to purchase, or sell, Securities or any other
debt securities with a maturity at the time of original issuance of 9 months or
more ("Medium-Term Debt Securities") except pursuant to this Agreement and any
Terms Agreement, or except pursuant to a private placement not constituting a
public offering under the Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of Medium-Term Debt Securities. However, the Issuer
reserves the right (i) to sell, and may solicit and accept offers to purchase,
Securities and Medium-Term Debt Securities directly on its own behalf to
investors (subject to no fee or commission) at any time, (ii) upon five business
days' prior notice to, and with the prior consent of, each of the Agents, to
appoint other persons, partnerships or corporations ("Additional Agents") to act
as its agent to solicit offers for the purchase of Securities or Medium-Term
Debt Securities pursuant to this Agreement, provided that each Additional Agent
shall execute this Agreement and become a party hereto and thereafter the term
"Agent" as used in this Agreement shall mean the Agents and such Additional
Agents, and (iii) to accept a specific offer to purchase Securities or
Medium-Term Debt Securities solicited by an agent other than the Agents (each an
"Other Agent"), without obtaining the prior consent of any of the Agents,
provided that (x) the Issuer shall give each of the Agents notice of its
decision to accept such an offer to purchase Securities or Medium-Term Debt
Securities in advance of such acceptance, and (y) any Other Agent shall agree to
be bound by and subject to the terms and conditions of this Agreement binding on
the Agents (including the commission schedule set forth on Exhibit B).
On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Agent hereby
severally and not jointly agrees, as agent of the Issuer, to use reasonable best
efforts when requested by the Issuer to solicit offers to
-7-
purchase the Securities upon the terms and conditions set forth in the
Prospectus, as from time to time amended or supplemented.
Upon receipt of notice from the Issuer as contemplated by Section 4(b)
hereof, each Agent shall suspend its solicitations of purchases of Notes until
such time as the Issuer shall have furnished it with an amendment or supplement
to the Registration Statement or the Prospectus, as the case may be,
contemplated by Section 4(b) and shall have advised such Agent that such
solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. Upon receipt of a least one Business Day's prior
notice from the Issuer, the Agents will forthwith suspend solicitation of offers
to purchase Securities from the Issuer until such time as the Issuer has advised
the Agents that such solicitation may be resumed. For the purpose of the
foregoing sentence, "Business Day" shall mean any day which is not a Saturday or
a Sunday and which in New York City is not a day on which banking institutions
are generally authorized or obligated by law to close.
The Agents are authorized to solicit offers to purchase Securities
only in a minimum aggregate amount of $1,000 and only in fully registered form
in denominations of $1,000 and integral multiples of $1,000 in excess thereof
or, in the case of Securities denominated in a foreign currency or currency
unit, or with respect to which an index is used to determine the amount of
payments of principal and any premium and interest, in each case as may be
designated by the Issuer at the time of offering thereof, in the denominations
indicated in the applicable Pricing Supplement, and at a purchase price which,
unless otherwise specified in the applicable Pricing Supplement, shall be equal
to 100% of the principal amount thereof. Each Agent shall communicate to the
Issuer, orally or in writing, each reasonable offer to purchase Securities
received by it as Agent. The Issuer shall have the sole right to accept offers
to purchase the Securities and may reject any such offer, in whole or in part.
Each Agent shall have the right, in its discretion reasonably exercised, without
notice to the Issuer, to reject any offer to purchase Securities received by it
and which it considers unacceptable, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold, by the
Issuer until such
-8-
Security shall have been delivered to the purchaser thereof against payment by
such purchaser.
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless such Agent shall
otherwise agree) a Terms Agreement which will provide for the sale of such
Securities to, and the purchase thereof by, such Agent (each a "Terms
Agreement"). A Terms Agreement will be substantially in the form of Exhibit A
hereto but may take the form of an exchange of any standard form of written
telecommunication between an Agent and the Issuer and may also specify certain
provisions relating to the reoffering of such Securities by such Agent. The
commitment of any Agent to purchase Securities as principal, whether pursuant to
any Terms Agreement or otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Issuer herein contained and shall
be subject to the terms and conditions herein and in the applicable Terms
Agreement set forth. Each agreement by an Agent to purchase Securities as
principal (pursuant to a Terms Agreement or otherwise) shall specify the
principal amount of Securities to be purchased by such Agent pursuant thereto,
the price to be paid to the Issuer for such Securities, the maturity date of
such Securities, the interest rate or interest rate basis, if any, applicable to
such Securities, any other terms of such Securities, the time and date and place
of delivery of and payment for such Securities, any provisions relating to
rights of, and default by, underwriters acting together with such Agent in the
reoffering of Securities, and shall also specify any requirements for opinions
of counsel, accountants' letters and officers' certificates pursuant to Section
5 hereof. Unless otherwise specified in a Terms Agreement, the procedural
details relating to the issue and delivery of Securities purchased by an Agent
as principal and the payment therefore shall be as set forth in the Procedures
(as hereinafter defined).
(c) At the time of delivery of, and payment for, any Securities sold
by the Issuer as a result of a solicitation made by, or offer to purchase
received by, an Agent, the Issuer agrees to pay such Agent a commission in
accordance with the schedule set forth in Exhibit B hereto. The Issuer agrees
that each Agent that purchases Securities as principal for resale shall receive
such compensation, in the form of a discount or otherwise, as shall be indicated
in the applicable confirmation or Terms Agreement, as the case may be, or, if no
compensation is indicated therein, a commission in accordance with Exhibit B
hereto. The Issuer may also sell Securities to an Agent as principal for its
own account at discounts to be agreed upon at the time of sale. Such Securities
may be sold to investors and other purchasers at prevailing market prices, or
prices related thereto at the time of such resale or otherwise, as determined by
the Agent.
-9-
In addition, the Agents may offer the Securities they have purchased as
principal to other dealers. The Agents may sell Securities to any dealer at a
discount and, unless otherwise specified in the applicable confirmation or Terms
Agreement, such discount allowed to any dealer will not be in excess of the
discount to be received by such Agent from the Issuer.
(d) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Agents and the
Issuer. The initial Procedures, which are set forth in Exhibit C hereto, shall
remain in effect until changed by agreement among the Issuer and the Agents.
Each Agent and the Issuer agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Issuer will furnish to the Trustee a copy of the Procedures as
from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, not later than 10:00 A.M., New York City time, on the
date of this Agreement or at such later time as may be mutually agreed by the
Issuer and the Agents, which in no event shall be later than the time at which
the Agents commence solicitation of purchases of Securities hereunder, such time
and date being herein called the "Closing Date".
4. CERTAIN AGREEMENTS OF THE ISSUER. The Issuer agrees with the
Agents that it will furnish to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Agents, one signed copy of the Registration Statement, including all exhibits,
in the form it became effective and of all amendments thereto and that, in
connection with each offering of Securities:
(a) The Issuer will advise each Agent promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will
afford the Agents a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Issuer will also advise each Agent of the
filing and effectiveness of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(b) If, at any time when (i) a prospectus relating to the Securities
is required to be delivered under the Act and (ii) no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(b)
hereof or this Section 4(b) shall be in effect (any such time referred to
in clause (i) and any time when either any
-10-
Agent shall own any Securities with the intention of reselling them or the
Issuer has accepted an offer to purchase Securities but the related
settlement has not occurred being referred to herein as a "Marketing
Period"), any event occurs 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 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 it is necessary at any
time to amend the Prospectus to comply with the Act, the Issuer will
promptly notify each Agent to suspend solicitation of purchases of the
Securities; and if the Issuer shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise each
Agent by telephone (with confirmation in writing) and will promptly prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Notwithstanding the foregoing, if, at the time such event
occurs or it becomes necessary to amend the Prospectus to comply with the
Act, any Agent shall own any of the Securities with the intention of
reselling them, or the Issuer has accepted an offer to purchase Securities
but the related settlement has not occurred, the Issuer, subject to the
provisions of subsection (a) of this Section 4, will promptly prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither the Agents' consent to, nor their delivery of, any amendment or
supplement referred to in this Section 4(b) shall constitute a waiver of
any of the conditions set forth in Section 5 hereof or of any of the
Issuer's obligations set forth in Section 6 hereof.
(c) The Issuer will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act. In addition, on or prior to the date on which the Issuer
makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the
Issuer proposes to describe, in a document filed pursuant to the Exchange
Act, the Issuer will furnish the information contained or to be contained
in such announcement to each Agent, confirmed in writing and, subject to
the provisions of subsections (a) and (b) of this Section 4, will cause the
Prospectus to be amended or supplemented to reflect the information
contained in such announcement. The Issuer also will furnish each Agent
with copies of all other press releases or announcements to the general
public. The Issuer will immediately notify each Agent
-11-
of any downgrading in the rating of the Securities or any other debt
securities of the Issuer, or any proposal to downgrade the rating of the
Securities or any other debt securities of the Issuer (including any
surveillance or review regarding the same), by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of the Securities or any debt
securities of the Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating), as soon as the Issuer learns of such
downgrading, proposal to downgrade or public announcement.
(d) As soon as practicable, but in any event not later than 16 months
after the date of each acceptance by the Issuer of an offer to purchase
Securities hereunder, the Issuer will make generally available to its
security holders an earnings statement covering a period of at least 12
months beginning after the latest of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
acceptance and (iii) the date of the Issuer's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such acceptance,
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Issuer will furnish to each Agent copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents (including any Pricing
Supplement), in each case as soon as available and in such quantities as
are reasonably requested.
(f) The Issuer will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Agents reasonably request and will
continue such qualifications in effect so long as required for the
distribution.
(g) So long as any Securities are outstanding, the Issuer will
furnish to the Agents, (i) as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year,
(ii) as soon as available, a copy of each report or definitive proxy
statement of the Issuer filed with the Commission
-12-
under the Exchange Act or mailed to stockholders, and (iii) from time to
time, such other information concerning the Issuer as the Agents may
reasonably request.
(h) The Issuer will whether or not any sale of Securities is
consummated pay all expenses incident to the performance of its obligations
under this Agreement and will reimburse each Agent for any expenses
(including fees and disbursements of counsel) incurred by it in connection
with qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as such
Agent may designate and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the
Securities, for filing fees, if any, of the National Association of
Securities Dealers, Inc. relating to the Securities, for expenses incurred
by each Agent in distributing the Prospectus and all supplements thereto
(including any Pricing Supplement), any preliminary prospectuses and any
preliminary prospectus supplements to such Agent, for costs incurred by
each Agent and consented to by the Issuer in advertising any offering of
Securities and for each Agent's expenses (including the reasonable fees and
disbursements of counsel to the Agents) incurred in connection with the
establishment or maintenance of the program contemplated by this Agreement
and/or otherwise in connection with the activities of the Agents under this
Agreement.
(i) Between the date of a Terms Agreement and the date of delivery of
such Securities, the Issuer will not offer or sell, or enter into any
agreement to sell, any of its debt securities of similar tenor to the
Securities the subject of such Terms Agreement in the United States, other
than sales of Securities, borrowings under the Issuer's revolving credit
agreements and lines of credit, the private placement of securities and
issuances of its commercial paper.
5. CONDITIONS OF OBLIGATIONS. The obligation of each Agent, as
agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer herein, to the accuracy, on each
such date, of the statements of the Issuer's officers made pursuant to the
provisions hereof, to the performance, on or prior to each such date, by the
Issuer of its obligations hereunder, and to each of the following additional
conditions precedent:
-13-
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be, shall
have been filed with the Commission in accordance with the Rules and
Regulations and no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Issuer or any Agent, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such solicitation,
as the case may be, shall contain any untrue statement of fact which, in
the opinion of any Agent after consultation with the Issuer, is material or
omits to state a fact which, in the opinion of any Agent after consultation
with the Issuer, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Issuer or its subsidiaries which, in the judgment of
such Agent after consultation with the Issuer, materially impairs the
investment quality of the Securities, (ii) any downgrading in the rating of
the Issuer's debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act)
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Issuer
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any suspension or limitation of trading in securities generally on
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, or
any suspension of trading of any securities of or guaranteed by the Issuer
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by Federal, New York or Florida authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of such
Agent, the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with
solicitations of purchases of, or sales of, Securities.
-14-
(d) At the Closing Date, and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Agent purchasing such Securities (the
"Purchasing Agent"), as the case may be, shall have received an opinion,
dated the Closing Date, or such date of delivery, as the case may be, of
Xxxxxxx Xxxxx & Xxxxxx, P.A., counsel for the Issuer, to the effect that:
(i) the Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Florida,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Issuer is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification;
(ii) each of the Issuer's significant subsidiaries (as defined
in Regulation S-X of the Rules and Regulations, hereinafter
"significant subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where
the failure to be so qualified and in good standing would not have a
material adverse effect on the Issuer and its subsidiaries taken as a
whole; and all of the issued shares of capital stock of each
significant subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except in the case of
foreign subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Issuer, free and clear of all liens,
encumbrances, equities or claims;
(iii) other than as set forth or contemplated in the
Prospectus, to the best knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened required to be
described in the Prospectus which are not described as required nor
are there any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or
-15-
to be filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(iv) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Issuer, and, assuming
due authorization, execution and delivery by the Agents or Agent, as
the case may be, are valid and binding agreements except as rights to
indemnity and contribution hereunder and thereunder may be limited by
applicable law and except as enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and by general equity principles;
(v) the Securities have been duly authorized and, when executed
and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by any purchaser of Securities sold through
an Agent as agent or any Agent as principal pursuant to any Terms
Agreement or other agreement, will constitute valid and binding
obligations of the Issuer entitled to the benefits provided by the
Indenture except as enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and by 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 will not
have been modified or rescinded and there will not have occurred any
change in law affecting the validity, legally binding character or
enforceability of such Security, (b) assume that neither the issuance,
sale and delivery of any Security, nor any of the terms of such
Security, nor compliance by the Issuer with such terms, will violate
any applicable law, any agreement or instrument then binding upon the
Issuer or any restriction imposed by any court or governmental body
having jurisdiction over the Issuer, and (c) 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
-16-
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) the Indenture has been duly authorized, executed and
delivered by the Issuer and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding instrument of
the Issuer except as enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and by general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) neither the Issuer nor any of its significant subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Articles of Incorporation or
Articles of Association, as the case may be, or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Issuer or any of such
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the Issuer
and its subsidiaries taken as a whole or to the holders of the
Securities; the issue and sale of the Securities and the performance
by the Issuer of its obligations under the Securities, the Indenture,
this Agreement and any applicable Terms Agreement or other agreement
pursuant to which an Agent purchases Securities as principal and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which the Issuer or any of its
significant subsidiaries is a party or by which the Issuer or any of
its significant subsidiaries is bound or to which any of the property
or assets of the Issuer or any of its significant subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the
Issuer or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or
-17-
body having jurisdiction over the Issuer, its significant subsidiaries
or any of their respective properties;
(viii) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement, any applicable Terms Agreement or other agreement pursuant
to which an Agent purchases Securities as principal, or the Indenture,
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Act and the Trust
Indenture Act and as may be required under state securities or Blue
Sky laws in connection with the offers and sales of the Securities
from the Issuer and with purchases of Securities;
(ix) the statements made in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar
as they purport to constitute a summary of the terms of documents
referred to therein, constitute accurate summaries of the terms of
such documents in all material respects (subject to the insertion in
the Securities of the maturity dates, interest rates and other similar
terms thereof, which are to be described in supplements to the
Prospectus).
(x) the registration statement relating to the Registered
Securities and the Registration Statement, as of their respective
effective dates, and the Prospectus, as of the Closing Date, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel has no
reason to believe that such registration statement as of its effective
date, the Registration Statement or the Prospectus, as of the Closing
Date, or any such amendment or supplement as of its date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the descriptions in the
Registration Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; it
being understood that such counsel need express no opinion as to the
financial
-18-
statements or other financial data contained in the Registration
Statement or the Prospectus;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of the laws other than the laws of the United
States and the State of Florida, to the extent such counsel deems proper
and to the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the Agents'
counsel) of other counsel reasonably acceptable to the Agents' counsel,
familiar with the applicable laws; and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers
of the Issuer and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Issuer. The opinion of such counsel for
the Issuer shall state that the opinion of any such other counsel is in
form satisfactory to such counsel and, in such counsel's opinion, the
Agents and they are justified in relying thereon. With respect to the
matters to be covered in subparagraphs (d)(ix) and (d)(x) above, counsel
may state their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and review and discussion of the contents
thereof (including the documents incorporated by reference therein) but is
without independent check or verification except as specified.
(e) At the Closing Date, and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Purchasing Agent, as the case may be, shall
have received a certificate, dated the Closing Date, or such date of
delivery, as the case may be, of the President or any Vice President and
the Treasurer, a principal financial or accounting officer of the Issuer in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties of
the Issuer in this Agreement are true and correct, (ii) the Issuer has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (iii) no
stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose have
been instituted or, to the best knowledge of the Issuer, are contemplated
by the Commission, and (iv) subsequent to the date of the most recent
financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change in the financial
-19-
position or results of operations of the Issuer and its subsidiaries,
except as set forth in or contemplated by the Prospectus or as described in
such certificate. In the case of each such certificate delivered pursuant
to a Terms Agreement, the statements contained in such certificate relating
to the Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as amended or
supplemented as of the date of the Issuer's acceptance of the offer to
purchase such Securities and as of the time of delivery of such Securities.
(f) At the Closing Date, and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Purchasing Agent, as the case may be, shall
have received a letter, dated the Closing Date, or such date of delivery,
as the case may be, of Xxxxxx Xxxxxxxx LLP, confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect
that:
(i) In their opinion, the financial statements and schedules
examined by them and included in the prospectus contained in the
Registration Statement comply in form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) They have made a review of any unaudited financial
statements included in the Prospectus in accordance with the standards
established by the American Institute of Certified Public Accountants,
as indicated in their report or reports attached to such letter;
(iii) On the basis of the review referred to in (ii) above
and a reading of the latest available interim financial statements of
the Issuer, the reading of the minutes of the meetings of the
stockholders, directors and committees of the Board of Directors of
the Issuer, inquiries of officials of the Issuer who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and
-20-
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements from
which it was derived or was not determined on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, or such date of
delivery, as the case may be, there was any change in the capital
stock or any increase in short-term indebtedness or long-term
debt of the Issuer and consolidated subsidiaries or, at the date
of the latest available balance sheet read by such accountants,
there was any decrease in consolidated shareholder's equity, as
compared with amounts shown on the latest balance sheet included
in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year, in consolidated net interest income, in the
consolidated income before income taxes, in the total or per
share amounts of net income;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms
Agreement, the statements contained in such letter relating to the
Registration Statement or the Prospectus shall relate to the Registration
Statement or
-21-
the Prospectus, as the case may be, as amended or supplemented as of the
date of the Issuer's acceptance of the offer to purchase such Securities
and as of the time of delivery of such Securities.
(g) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Agents or the Purchasing Agent, as the case may be, shall
have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agents, such
opinion or opinions, dated the Closing Date, or such date of delivery, as
the case may be, with respect to the incorporation of the Issuer, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as they may require, and the Issuer shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to the incorporation of the Issuer
and all other matters governed by Florida law upon the opinion of Xxxxxxx
Xxxxx & Xxxxxx, P.A. referred to above.
The Issuer will furnish the Agents with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. ADDITIONAL COVENANTS OF THE ISSUER. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the time
of such acceptance and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the
purchaser of the Securities relating to such acceptance as though made at
and as of each such time, it being understood that such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented at each such time. Each such acceptance by the
Issuer of an offer for the purchase of Securities shall be deemed to
constitute an additional representation, warranty and agreement by the
Issuer that, as of the settlement date for the sale of such Securities,
after giving effect to the issuance of such Securities, of any other
Securities to be issued on or prior to such settlement date and of any
other Registered Securities to be issued and sold by the Issuer on or prior
to such settlement date, the aggregate amount of Registered Securities
(including any Securities) which have been issued and sold by the Issuer
will not exceed the amount of Registered
-22-
Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), the Issuer
shall, (A) concurrently with such amendment or supplement, if such
amendment or supplement shall occur at a Marketing Period, or (B)
immediately at the next Marketing Period if such amendment or supplement
shall not occur at a Marketing Period, furnish the Agents with a
certificate, dated the date of delivery thereof, of the President or any
Vice President and a principal financial or accounting officer of the
Issuer, in form satisfactory to the Agents, to the effect that the
statements contained in the certificate covering the matters set forth in
Section 5(e) hereof which was last furnished to the Agents are true and
correct at the time of such amendment or supplement, as though made at and
as of such time or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(e); PROVIDED, HOWEVER,
that any certificate furnished under this Section 6(b) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at the
time of delivery of such certificate and, in the case of the matters set
forth in clause (ii) of Section 5(e) hereof, to the time of delivery of
such certificate.
(c) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented, the Issuer shall, (A) concurrently if such Representation
Date shall occur at a Marketing Period, or (B) immediately at the next
Marketing Period if such Representation Date shall not occur at a Marketing
Period, furnish the Agents with a written opinion or opinions, dated the
date of such Representation Date, of counsel for the Issuer, in form
satisfactory to the Agents, to the effect set forth in Section 5(d) hereof;
PROVIDED, HOWEVER, that to the extent appropriate such opinion or opinions
may reconfirm matters set forth in a prior opinion delivered under Section
5(d) or this Section 6(c); PROVIDED FURTHER, HOWEVER, that any opinion or
opinions furnished under this Section 6(c) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date and shall state that the Securities sold in the
relevant Applicable Period have been duly executed, authenticated, issued
and delivered and constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms and conform to the
description thereof contained in the Prospectus as amended or supplemented
at the relevant settlement
-23-
date or dates for the sale of such Securities. For the purpose of this
Section 6(c), "Applicable Period" shall mean with respect to any opinion
delivered on a Representation Date the period commencing on the date of the
most recent prior opinion delivered under Section 5(d) or this Section 6(c)
and ending on such Representation Date.
(d) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer shall
cause Xxxxxx Xxxxxxxx LLP, (A) concurrently if such Representation Date
shall occur at a Marketing Period, or (B) immediately at the next Marketing
Period if such Representation Date shall not occur at a Marketing Period,
to furnish the Agents with a letter, addressed jointly to the Issuer and
the Agents and dated the date of such Representation Date, in form and
substance satisfactory to the Agents, to the effect set forth in Section
5(f) hereof; PROVIDED, HOWEVER, that to the extent appropriate such letter
may reconfirm matters set forth in a prior letter delivered pursuant to
Section 5(f) or this Section 6(d); PROVIDED FURTHER, HOWEVER, that any
letter furnished under this Section 6(d) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Issuer.
(e) On each settlement date for the sale of Securities, the Issuer
shall, if requested by an Agent, furnish such Agent with a written opinion
of counsel of the Issuer, dated the date of delivery thereof, in form
satisfactory to such Agent, to the effect set forth in clauses (i), (v) and
(vi) of Section 5(d) hereof; PROVIDED, HOWEVER, that any opinion furnished
under this Section 6(e) shall relate to the Prospectus as amended or
supplemented at such settlement date and shall state that the Securities
being sold by the Issuer on such settlement date, when delivered against
payment therefor as contemplated by this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuer enforceable in accordance with
their terms, subject only to the exceptions as to enforcement set forth in
clause (vi) of Section 5(d) hereof, and will conform to the description
thereof contained in the Prospectus as amended or supplemented at such
settlement date.
(f) The Issuer agrees that any obligation of a person who has agreed
to purchase Securities to make
-24-
payment for and take delivery of such Securities shall be subject to (i)
the accuracy, on the related settlement date fixed pursuant to the
Procedures, of the Issuer's representation and warranty deemed to be made
to the Agents pursuant to the last sentence of subsection (a) of this
Section 6, and (ii) the satisfaction, on such settlement date, of each of
the conditions set forth in Sections 5(a), (b) and (c), it being understood
that under no circumstance shall any Agent have any duty or obligation to
exercise the judgment permitted under Section 5(b) or (c) on behalf of any
such person.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Issuer 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 any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Agent for any legal or other expenses
reasonably incurred by such Agent in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Issuer will not be liable to such Agent in any such
case to the extent that any such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any of such documents
in reliance upon and in conformity with written information furnished to the
Issuer by such Agent specifically for use therein.
(b) Each Agent will indemnify and hold harmless the Issuer against
any losses, claims, damages or liabilities to which the Issuer 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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the 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
-25-
made in reliance upon and in conformity with written information furnished to
the Issuer by such Agent specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Issuer in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
contrary, (ii) the indemnifying party has failed within a reasonable time to
retain counsel reasonably satisfactory to the indemnified party or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all indemnified parties, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Agents and control persons of the Agents shall be
designated in writing by CS First Boston Corporation or, if CS First Boston
Corporation is not an indemnified party, by the Agents that are indemnified
parties and any such separate firm for the Issuer, its directors, its officers
who sign the Registration Statement and control persons of the Issuer shall be
designated in writing by the Issuer. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as
-26-
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(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, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer on the one hand and any Agent on the other from the offering pursuant
to this Agreement of the Securities which are the subject of the action or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Issuer on the one hand and any Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and any Agent on the
other shall be deemed to be in the same proportions as the total net proceeds
from the offering pursuant to this Agreement of the Securities which are the
subject of the action (before deducting expenses) received by the Issuer bear to
the total commissions (before deducting expenses) received by such Agent from
the offering of such Securities pursuant to this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer or such
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of 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 action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
which are the subject of the action and which were distributed to the public
through it pursuant to this Agreement or upon resale of Securities purchased by
it from
-27-
the Issuer exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each Agent in this subsection (d) to contribute are several, in
the same proportion which the amount of the Securities which are the subject of
the action and which were distributed to the public through such Agent pursuant
to this Agreement bears to the total amount of such Securities distributed to
the public through each of the Agents pursuant to this Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls each
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Issuer, to each officer of the Issuer who has signed the
Registration Statement and to each person, if any, who controls the Issuer
within the meaning of the Act.
(f) The Issuer will not, without the prior written consent of each
Agent, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Agent or any person
who controls such Agent within the meaning of Section 15 of the Act is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such Agent and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding.
8. STATUS OF EACH AGENT. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than any obligation to purchase Securities pursuant
to Section 3 hereof), each Agent is acting individually and not jointly and is
acting solely as agent for the Issuer and not as principal. Each Agent will
make reasonable efforts to assist the Issuer in obtaining performance by each
purchaser whose offer to purchase Securities from the Issuer has been solicited
by such Agent and accepted by the Issuer, but such Agent shall have no liability
to the Issuer in the event any such purchase is not consummated for any reason.
he Issuer shall default on its obligations to deliver Securities to a purchaser
whose offer it has accepted, the Issuer (i)
-28-
shall hold the Agents harmless against any loss, claim or damage arising from or
as a result of such default by the Issuer, and (ii) in particular, shall pay to
the Agents any commission to which they would be entitled in connection with
such sale.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Agents set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Agent, the Issuer or any of their respective representatives, officers or
directors or any controlling person and will survive delivery of and payment for
the Securities. If this Agreement is terminated pursuant to Section 10 hereof
or for any other reason or if for any reason the sale of Securities described in
a confirmation or Terms Agreement referred to in Section 3 hereof by the Issuer
to the Agent is not consummated, the Issuer shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(h) and the
obligations of the Issuer under Sections 4(d) and 4(g) and the respective
obligations of the Issuer and the Agents pursuant to Section 7 shall remain in
effect. In addition, if any such termination shall occur either (i) at a time
when any Agent shall own any of the Securities with the intention of reselling
them, or (ii) after the Issuer has accepted an offer to purchase Securities and
prior to the related settlement, the obligations of the Issuer under the second
sentence of Section 4(b), under Sections 4(a), 4(c), 4(e), 4(f) and 4(i) and, in
the case of a termination occurring as described in (ii) above, under Sections
3(c), 6(a), 6(e) and 6(f) and under the last sentence of Section 8, shall also
remain in effect.
10. TERMINATION. This Agreement may be terminated for any reason at
any time by the Issuer as to any Agent or by any such Agent insofar as this
Agreement relates to such Agent upon the giving of one day's written notice of
such termination to the other parties hereto. Any settlement with respect to
Securities placed by an Agent on an agency basis occurring after termination of
this Agreement shall be made in accordance with the Procedures and each Agent
agrees, if requested by the Issuer, to take the steps therein provided to be
taken by such Agent in connection with such settlement.
11. SALES OF SECURITIES DENOMINATED IN A FOREIGN CURRENCY AND INDEXED
SECURITIES. If at any time the Issuer and any of the Agents shall determine to
issue and sell Securities denominated in a currency or currency unit other than
U.S. Dollars, which other currency may include a composite currency, or with
respect to which an index is used to determine the amounts of payments of
principal and any
-29-
premium and interest, the Issuer and any such Agent shall execute and deliver a
supplemental agreement to this Agreement (an "Amendment") in the form attached
hereto as Exhibit D. An Amendment shall establish, as appropriate, additions to
and modifications of the terms of this Agreement (including the Procedures),
which additions and modifications shall apply to the sales, whether offered on
an agency or principal basis, of such Securities covered thereby.
12. NOTICES. Except as otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication to the following addresses or facsimile transmission numbers.
Agents:
CS First Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium Term Finance Department
Fax No. (000) 000-0000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Department
Credit Control - Medium Term notes
Fax No. (000) 000-0000
Xxxxxx Brothers
Xxxxxx Brothers Inc. (including Xxxxxx Government
Securities Inc.)
3 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Medium Term Note Department
Fax No. (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Continuously Offered
Products
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Department
-30-
Issuer:
Xxxxxxx Xxxxx, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Fax No. (000) 000-0000
In the case of any party hereto, notice shall be deemed to have been
duly given if so mailed or transmitted to such other address, facsimile
transmission number or person as such party shall specify to each other party by
a notice given in accordance with the provisions of this Section 12. Any such
notice shall take effect at the time of receipt.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(f), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
14. GOVERNING LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
-31-
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
XXXXXXX XXXXX, INC.
By_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
CS FIRST BOSTON CORPORATION XXXXXX BROTHERS INC.
By________________________________ By____________________________
Name: Name:
Title: Title:
XXXXXX XXXXXXX & CO. INCORPORATED XXXXXXX, SACHS & CO.
By_______________________________ ______________________________
Name: (Xxxxxxx, Xxxxx & Co.)
Title:
SALOMON BROTHERS INC
By_______________________________
Name:
Title:
-32-
Exhibit A
XXXXXXX XXXXX, INC.
MEDIUM TERM NOTES, SERIES E
TERMS AGREEMENT
___________, 199_
Xxxxxxx Xxxxx, Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: ____________________
Re: Distribution Agreement dated
as of March 21, 1996 (the
"DISTRIBUTION AGREEMENT")
The undersigned agrees to purchase your Medium-Term Notes, Series E
having the following terms:
Specified Currency:_______________________________
Principal Amount:_________________________________
Original Issue Date:______________________________
Settlement Date, Time and Place:__________________
Maturity Date:____________________________________
Purchase Price: _____% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Price to Public:_______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Redemption Date (Dates): , commencing
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[(For Fixed Rate Notes)
Interest Rate:_______________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule: ]
(1)[(For Floating Rate Notes)
Initial Interest Rate:____________________
Interest Rate Basis (CD, Commercial Paper, Federal Funds, LIBOR,
Prime, Treasury, CMT, 11th District Cost of
Funds, X.X. Xxxxx):___________________
1/ Index Maturity (30, 60, 90 days, 6 months, 1 year,
other):______________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): _________________
Interest Payment Period (monthly, quarterly,
semiannually, annually):_________________
Spread: ____________________ points (+/-)
Spread Multiplier: ___________%
Maximum Interest Rate:________%
Minimum Interest Rate:________%
Initial Interest Reset Date:__________________
Interest Reset Dates:__________________
Interest Determination Dates:__________
Interest Payment Dates:________________
Calculation Agent: ]
--------------------
1/ See Prospectus Supplement dated March 21, 1996 for explanation of terms.
A-2
Other terms of Securities:
Provisions relating to underwriter
default, if any:
The provisions of Sections 2, 3(b) and 3(d) and 4 through 7, 9,
12, 13 and 14 of the Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed
to have the same force and effect as if set forth in full herein.
This Agreement is subject to termination in our absolute
discretion on the terms incorporated by reference herein. If this
Agreement is so terminated, the provisions set forth in Section 9 of
the Distribution Agreement shall survive for the purposes of this
Agreement.
[The certificate referred to in Section 5(e) of the Distribution
Agreement, the opinion referred to in Section 5(d) of the Distribution
Agreement and the accountants' letters referred to in Section 5(f) of
the Distribution Agreement will be required.]
[Agent]
By:______________________
(Title)
Accepted:
XXXXXXX XXXXX, INC.
By:_________________________
(Title)
A-3
Exhibit B
The Issuer agrees to pay the relevant Agent a commission equal to the
following percentage of the principal amount of Securities sold to purchasers
solicited by such Agent:
Commission
(percentage of
aggregate principal
amount of Securities
RANGE OF MATURITIES sold)
From 9 months to less than 1 year. . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . .150%
From 18 months to less than 2 years. . . . . . . . . . .200%
From 2 years to less than 3 years. . . . . . . . . . . .250%
From 3 years to less than 4 years. . . . . . . . . . . .350%
From 4 years to less than 5 years. . . . . . . . . . . .450%
From 5 years to less than 6 years. . . . . . . . . . . .500%
From 6 years to less than 7 years. . . . . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . . . . .600%
From 10 years to less than 15 years. . . . . . . . . . .625%
From 15 years to less than 20 years. . . . . . . . . . .700%
From 20 years to 30 years. . . . . . . . . . . . . . . .750%
Greater than 30 years. . . . . . . . . . . . . . . . . To be negotiated at
the time of
issuance
Exhibit C
XXXXXXX XXXXX, INC.
MEDIUM-TERM NOTES, SERIES E
ADMINISTRATIVE PROCEDURES
_______________________________
The Medium-Term Notes, Series E (the "Notes"), are to be offered on a
continuous basis by Xxxxxxx Xxxxx, Inc. (the "Company"). Each of CS First
Boston Corporation, Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc. (including Xxxxxx
Government Securities Inc.), Xxxxxx Xxxxxxx & Co. Incorporated and Salomon
Brothers Inc (each an "Agent") has agreed to solicit offers to purchase the
Notes in registered form. The Notes are being sold pursuant to a Distribution
Agreement dated as of March 21, 1996 (the "Agreement") between the Company and
the Agents. In the Agreement, each Agent has agreed to use reasonable efforts
to solicit purchases of the Notes. Each Agent, as principal, may purchase Notes
for its own account and, if such Agent so elects, the Company and such Agent
will enter into a Terms Agreement, as contemplated by the Agreement.
Notes which are subordinated in priority of payment will be issued
pursuant to an Indenture, dated as of March 16, 1995 (the "Subordinated
Indenture"), between the Issuer and Chemical Bank, as Trustee (the "Subordinated
Trustee"). Notes which are senior in priority of payment will be issued
pursuant to an Indenture, dated as of March 16, 1995 (the "Senior Indenture")
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Senior Trustee"). The Subordinated Indenture and the Senior Indenture are
hereinafter collectively referred to as the "Indenture". The Subordinated
Trustee and the Senior Trustee are hereinafter collectively referred to as the
"Trustee". The Trustees will be the Registrar, Calculation Agent,
Authenticating Agent and Paying Agent for the Notes, and will perform the duties
specified herein. Notes will bear interest at a fixed rate (the "Fixed Rate
Notes"), which may be zero in the case of certain original issue discount notes
(the "OID Notes"), or at floating rates (the "Floating Rate Notes"). Fixed Rate
Notes may pay a level amount in respect of both interest and principal amortized
over the life of the Notes ("Amortizing Notes"). Each Note will be represented
by either a Global Security (as defined below) delivered to the Trustee, as
agent for The Depository Trust Company ("DTC"), and recorded in the book-entry
system maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a "Certificated Note").
Except in limited circumstances, an owner of a Book-Entry Note will not be
entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable solely in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture or the Notes shall be used herein
as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, each of the Senior
Trustee and the Subordinated Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
respective obligations under Letters of Representation from the Company and the
Senior Trustee to DTC and the Company and the Subordinated Trustee to DTC, each
dated as of the date hereof (the "Letters of Representation"), and Medium-Term
Note Certificate Agreements between the Senior Trustee and DTC and the
Subordinated Trustee and DTC, dated as of May 26, 1989 and December 2, 1988,
respectively, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to U.S
$200,000,000 principal amount of all such Notes that have
the same Maturity Date, redemption or repayment provisions,
Interest Payment Dates, Original Issue Date, original issue
discount provisions (if any), and, in the case of Fixed Rate
Notes, Interest Rate, modified payment upon acceleration (if
any), amortization schedule (if any) or, in the case of
Floating Rate Notes, Initial Interest Rate, Interest Payment
Dates, Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate (if any)
and, in each case, any other relevant terms (collectively
"Terms"). Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. Each
Global Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security (or
any portion thereof), its original issuance date and (ii)
with respect to any Global Security (or any portion thereof)
issued subsequently
C-2
upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most recent
Interest Payment Date to which interest has been paid or
duly provided for on the predecessor Global Security or
Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes may
only be denominated and payable in U.S. dollars. No Global
Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note.
Identification To the extent required, the Company has arranged
with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation
of a series of approximately 900 CUSIP numbers (including
tranche numbers) for assignment to the Global Securities
representing the Book-Entry Notes. The Company has obtained
from the CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and has delivered to the Trustee
and DTC the written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure
"B". DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Trustee has assigned to Global
Securities. At any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, the
Trustee shall so advise the Company and, if it deems
necessary, the Company will reserve additional CUSIP numbers
for assignment to Global Securities representing Book-Entry
Notes. Upon obtaining such additional CUSIP numbers, the
Company shall deliver a list of such additional CUSIP number
to the Trustee and DTC.
Registration: Each Global Security will be registered in the name of Cede
& Co., as nominee for DTC, on the security register
maintained under the Indenture. The beneficial owner of a
Book-Entry 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 Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC and
DTC will record in
C-3
book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
beneficial owner in such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such 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 a Book-Entry Note will be accompanied 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 beneficial transferors and transferees
of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service Bureau
at any time a written notice of consolidation specifying (i)
the CUSIP numbers of two or more Outstanding Global
Securities that represent Book-Entry Notes having the same
Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization notice to
the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a 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 Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will
exchange such Global Securities for a single Global Security
bearing the new CUSIP number and a new Interest Accrual
Date, and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Securities to
be exchanged exceed $200,000,000 in aggregate principal
amount, one Global Security will be authenticated and
C-4
issued to represent each $200,000,000, principal amount of
the exchanged Global Security and an additional Global
Security will be authenticated and issued to represent any
remaining principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months or
more from its date of issue.
Notice of The Trustee will give notice to DTC prior to each
Redemption and Redemption Date or Repayment Date (as specified
Repayment Dates: in the Note), if any, at the time and in the manner set
forth in the Letter of Representations.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 or an integral multiple of $1,000 in excess thereof.
Global Securities will be denominated in principal amounts
not in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each $200,000,000
principal amount of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note or Notes.
In such a case, each of the Global Securities representing
such Book-Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: GENERAL. Interest on each Book-Entry Note will accrue from
the Interest Accrual Date of the Global Security
representing such Note. Unless otherwise specified therein,
each payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest Payment Date.
Interest payable at the maturity or upon redemption or
repayment of a Book-Entry Note will be payable to the person
to whom the principal of such Note is payable. Standard &
Poor's Corporation will use the information received in the
pending deposit message described under Settlement Procedure
"C" below in order to include the amount of any interest
payable and certain other information regarding the related
Global Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
C-5
RECORD DATES. The Record Date with respect to any Interest
Payment Date shall be the date fifteen calendar days
immediately preceding such Interest Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes, other than
Amortizing Notes, will be made semiannually on June 1 and
December 1 of each year, and at maturity or upon any earlier
redemption or repayment and principal and interest payments
on Book-Entry Amortizing Notes will be made semiannually on
June 1 and December 1 of each year or quarterly on March 1,
June 1, September 1 and December 1 of each year, and at
maturity (or any redemption or repayment date); PROVIDED,
HOWEVER, that in the case of a Fixed Rate Book-Entry Note
issued between a Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date. If any Interest Payment Date for a
Fixed Rate Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such payment
for the period from and after such Interest Payment Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will be
made on Floating Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest will be
payable, in the case of Floating Rate Book-Entry Notes with
a daily, weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March,
June, September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating Rate
Book-Entry Notes with a quarterly Interest Reset Date, on
the third Wednesday of March, June, September and December
of each year; in the case of Floating Rate Book-Entry Notes
with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and in the case of Floating Rate
Book-Entry Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; PROVIDED
C-6
HOWEVER, that if an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is not a
Business Day with respect to such Floating Rate Book-Entry
Notes, such Interest Payment Date will be the next
succeeding Business Day with respect to such Floating Rate
Book-Entry Notes, except in the case of a LIBOR Note if such
Business Day is in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding
Business Day; and PROVIDED, FURTHER, that in the case of a
Floating Rate Book-Entry Note issued between a Record Date
and the related Interest Payment Date (a "Book-Entry Gap
Note"), the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date, and in such case, notwithstanding the fact that an
Interest Reset Date may occur prior to such Interest Payment
Date, the Initial Interest Rate shall remain in effect until
the first Interest Reset Date occurring on or subsequent to
such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. On the first
Business Day of March, June, September and December of each
year, the Trustee will deliver to the Company and DTC a
written list of Record Dates and Interest Payment Dates that
will occur with respect to Book-Entry Notes during the
six-month period beginning on such first Business Day.
Promptly after each date upon which interest is determined
for Floating Rate Notes issued in book-entry form, the
Calculation Agent will notify the Company, the Trustee and
Standard & Poor's Corporation of the interest rates
determined on such dates.
Calculation of FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Interest: Book-Entry Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve
thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in the
form of such Notes. Interest on Floating Rate Book-Entry
Notes will be calculated on the basis of actual days elapsed
and a year of 360 days, except that, in the case of Treasury
Rate Notes and CMT Rate Notes, interest will be calculated
on
C-7
the basis of the actual number of days in the year.
Payments of PAYMENTS OF INTEREST ONLY. Promptly after
Principal and each Record Date, the Trustee will
Interest: deliver to the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each
Global Security other than an Amortizing Note on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with maturity or any earlier
redemption or repayment date) and the total of such amounts.
DTC will confirm the amount payable on each such Global
Security on such Interest Payment Date by reference to the
daily bond reports published by Standard & Poor's
Corporation. In case of Amortizing Notes, the Trustee will
provide separate written notice to the Company and to DTC
prior to each Interest Payment Date at the time and in the
manner set forth in the Letter of Representation. The
Company will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (and,
in the case of an Amortizing Note, principal and interest)
(other than at maturity), and the Trustee will pay such
amount to DTC at the times and in the manner set forth below
under "Manner of Payment."
PAYMENTS AT MATURITY OR UPON REDEMPTION OR REPAYMENT. On or
about the first Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of principal
and interest to be paid on each Global Security other than
an Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following month. The
Company and DTC will confirm the amounts of such principal
and interest payments with respect to each such Global
Security on or about the fifth Business Day preceding the
Maturity Date or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Trustee will
provide separate written notice to the Company and to DTC
prior to the Maturity Date and any redemption or repayment
date, as the case may be, at the times and in the manner set
forth in the Letter of Representations. The Company will
pay to the Trustee, as the paying agent, the principal
amount of such Global Security, together with interest due
at such Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the
C-8
times and in the manner set forth below under "Manner of
Payment."
PAYMENTS NOT ON BUSINESS DAYS. If any Interest Payment Date
or the Maturity Date or redemption or repayment date of a
Global Security representing Fixed Rate Book-Entry Notes is
not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after
such Interest Payment Date, Maturity Date or redemption or
repayment date, as the case may be. If any Interest Payment
Date or the Maturity Date or redemption or repayment date of
a Global Security representing a Floating Rate Book-Entry
Note would otherwise fall on a day that is not a Business
Day, the payment due on such day shall be made on the next
succeeding day that is a Business Day with respect to such
Notes with the same effect as if such Business Day were the
Interest Payment Date, Maturity Date or date of redemption
or repayment, as the case may be, except that, in the case
of Book-Entry LIBOR Notes, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date
or redemption or repayment date shall be the immediately
preceding day that is a Business Day with respect to such
Book-Entry LIBOR Notes. Promptly after payment to DTC of
the principal and interest due on the Maturity Date or
redemption or repayment date of such Global Security, the
Trustee will cancel such Global Security in accordance with
the terms of the Indenture and deliver it to the Company
with a certificate of cancellation. 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 and
interest due on Global Securities on any Interest Payment
Date or at maturity or upon redemption or repayment shall be
paid by the Company to the Trustee in funds available for
immediate use by the Trustee as of 9:30 a.m. (New York City
time) on such date. The Company will make such payment on
such Global Securities by wire transfer to the Trustee or by
instructing the Trustee to withdraw funds from an account
maintained by the Company at
C-9
the Trustee. The Company will confirm such instructions in
writing to the Trustee. Prior to 10 a.m. (New York City
time), or as soon as possible thereafter, on each Maturity
Date or redemption or repayment date or, if either such date
is not a Business Day, as soon as possible thereafter,
following receipt of such funds from the Company the Trustee
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 principal (together
with interest thereon) due on Global Securities on any
Maturity Date or redemption or repayment date. On each
Interest Payment Date or, if any such date is not a Business
Day, as soon as possible thereafter, interest payments and,
in the case of Amortizing Notes, interest and principal
payments shall be made to DTC in same day funds in
accordance with existing arrangements between the Trustee
and DTC. Thereafter on each 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 the Book-Entry
Notes represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any responsibility or
liability for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
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 directly to the
beneficial owner of such Note.
Preparation of If any order to purchase a Book-Entry
Pricing Note is accepted by or on behalf of Company,
Supplement: the Company will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and will
arrange to file such Pricing Supplement by XXXXX with the
Commission in accordance with the applicable paragraph of
Rule 424(b) under the Act and will deliver the number of
copies of such Pricing
C-10
Supplement to the relevant Agent as such Agent shall request
by the close of business on the following Business Day. The
relevant Agent will cause such Pricing Supplement to be
delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agent receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to which
they are attached (other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the fifth
Business Day following such acceptance pursuant to the
timetable for settlement set forth below unless the Company
and the purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each
Procedures: Book-Entry Note sold by the Company to or through an Agent
shall be as follows (unless otherwise specified pursuant to
a Terms Agreement, as defined in the Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note will pay
interest annually or semi-annually and
whether such Note is an Amortizing Note and,
if so, the Amortization Schedule, or, in the
case of a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such
time), Interest
C-11
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any) and
the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. Agent's commission, if any,determined as
provided in the Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
10. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above. The Trustee will then assign a CUSIP
number to the Global Security representing such
Note and will notify the Company and the Agent of
such CUSIP number by telephone or electronic
transmission (confirmed in writing) as soon as
practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the relevant
C-12
Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which
in the case of Floating Rate Notes which
reset daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Record
Date as defined in the Note) and, if known,
the amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time) and whether such Note is
an Amortizing Note (by an appropriate
notation in the comments field of DTC's
Participant Terminal System).
5. The DTC participant number of the institution
through which the Company will hold the
Book-Entry Note.
D. The Trustee will complete and authenticate the
Global Security representing such Note in
accordance with the terms of the written order of
the Company then in effect.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant
C-13
account and credit such Note to the relevant
Agent's participant account and (ii) debit such
Agent's settlement account and credit the
Trustee's settlement account for an amount equal
to the price of such Note less such Agent's
commission, if any. The entry of such a deliver
order shall constitute a representation and
warranty by the Trustee to DTC that (a) the Global
Security representing such Book-Entry Note has
been issued and authenticated and (b) the Trustee
is holding such Global Security pursuant to the
Medium-Term Note Certificate Agreement between the
Trustee and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement account of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. The Trustee, upon confirming receipt of such
funds, will credit to the U.S. dollar account of
the Company maintained at a bank in New York City,
notified to the Trustee from time to time, in
funds available for immediate use in the amount
transferred to the Trustee, in accordance with
Settlement Procedure "F".
J. Unless the relevant Agent purchased such Note as
principal, such Agent
C-14
will confirm the purchase of such Note to the
purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date under the
Indenture and setting forth a brief description of
any sales of which the Company has advised the
Trustee but which have not yet been settled.
Settlement For sales by the Company of
Procedures Book-Entry Notes to or through an Agent (unless
Timetable: otherwise specified pursuant to a Terms Agreement) for
settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J" 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 sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
a.m., 12 noon and 2:00 p.m., respectively, on the first
Business Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12 noon and 2:00 p.m., respectively, on the
second Business Day before the settlement date. Settlement
C-15
Procedure "H" 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, the Trustee, after receiving
notice from the Company or the Agent, will deliver to DTC,
through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled settlement
date.
Failure to If the Trustee fails to enter an SDFS deliver
Settle: order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit
such Note to the Trustee's participant account, provided
that the Trustee's participant account contains a principal
amount of the Global Security representing such Note that is
at least equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will xxxx such Global Security "cancelled," make
appropriate entries in the Trustee's records and send such
cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, the
Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry
Note or Notes and shall be cancelled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such 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
C-16
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and
"G", respectively. Thereafter, the Trustee will deliver the
withdrawal message and take the related actions described in
the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any action
in accordance with its SDFS operating procedures then in
effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedures "D" and "F", for
the authentication and issuance of a Global Security
representing the Book-Entry Notes to be represented by such
Global Security and will make appropriate entries in its
records.
Posting Rates The Company and the Agents will discuss
by Company: from time to time the rates of interest per annum to be
borne by and the maturity of Securities that may be sold as
a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and
maturities for an offering period ("posting). If the
Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the
Agent.
Trustee Not To Nothing herein shall be deemed to
Risk Funds: require the Trustee to risk or expend its own funds in
connection with any payments to the Company, the Agents, DTC
or any holders of Notes, it being understood by all parties
that payments made by the Trustee to the Company, the
Agents, DTC or any holders of Notes shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated
Notes.
C-17
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date, which
will be (i) with respect to an original Certificated Note
(or any portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect to any
Certificated Note (or any portion thereof) issued
subsequently upon exchange of a Certificated Note, or in
lieu of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and A Certificated Note may be presented
Exchanges: for transfer or exchange at the principal corporate trust
office of the Trustee. Certificated Notes will be
exchangeable for other Certificated Notes having identical
terms but different authorized denominations without service
charge. Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine months or
more from its date of issue.
Currency: The currency denomination with respect to any Certificated
Note and the currency of payment of interest and principal
with respect to any such Certificated Note shall be as set
forth therein and in the applicable pricing supplement.
Denominations: Unless otherwise provided in a Prospectus Supplement, the
denomination of any Certificated Note will be a minimum of
$1,000 (or in the case of Notes not denominated in U.S.
dollars, the equivalent thereof in the applicable foreign
currency or composite currency, rounded down to the nearest
1,000 units of such foreign currency or composite currency)
or any amount in excess thereof that is an integral multiple
of $1,000 (or in the case of Notes not denominated in U.S.
dollars, 1,000 units of such foreign currency or composite
currency).
Interest: GENERAL. Interest on each Certificated Note will accrue
from the Original Issue Date of
C-18
such Note for the first interest period and from the most
recent date to which interest has been paid for all
subsequent interest periods. Unless otherwise specified
therein, each payment of interest on a Certificated Note
will include interest accrued to but excluding the Interest
Payment Date.
RECORD DATES. The Record Date with respect to any Interest
Payment Date in respect of a Certificated Note shall be the
date fifteen calendar days immediately preceding such
Interest Payment Date.
FIXED RATE CERTIFICATED NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes, other than
Amortizing Notes, will be made semiannually on June 1 and
December 1 of each year, and at maturity or upon any earlier
redemption or repayment and principal and interest payments
on Certificated Amortizing Notes will be made semiannually
on June 1 and December 1 of each year or quarterly on March
1, June 1, September 1 and December 1 of each year, and at
maturity (or any redemption or repayment date); PROVIDED,
HOWEVER, that in the case of a Fixed Rate Certificated Note
issued between a Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date.
FLOATING RATE CERTIFICATED NOTES. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semiannually or annually. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest will be
payable, in the case of Floating Rate Certificated Notes
with a daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third Wednesday of
March, June, September and December, as specified pursuant
to Settlement Procedure "A" below; in the case of Floating
Rate Certificated Notes with a quarterly Interest Reset
Date, on the third Wednesday of March, June, September and
December of each year; in the case of Floating Rate
Certificated Notes with a semiannual Interest Reset Date, on
the third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of Floating
Rate Certificated Notes
C-19
with an annual Interest Reset Date, on the third Wednesday
of the month specified pursuant to Settlement Procedure "A"
below; PROVIDED, HOWEVER, that if an Interest Payment Date
for Floating Rate Certificated Notes would otherwise be a
day that is not a Business Day with respect to such Floating
Rate Certificated Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Notes, except in the case of a
LIBOR Note if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and PROVIDED, FURTHER,
that in the case of a Floating Rate Certificated Note issued
between a Record Date and the related Interest Payment Date
(a "Certificated Gap Note"), the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date, and in such case, notwithstanding
the fact that an Interest Reset Date may occur prior to such
Interest Payment Date, the Initial Interest Rate shall
remain in effect until the first Interest Reset Date
occurring on or subsequent to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. On the first
Business Day of March, June, September and December of each
year, the Trustee will deliver to the Company a written list
of Record Dates and Interest Payment Dates that will occur
with respect to Certificated Notes during the six-month
period beginning on such first Business Day. Promptly after
each date upon which interest is determined for Floating
Rate Notes issued in certificated form, the Calculation
Agent will notify the Company and the Trustee of the
interest rates determined on such dates.
Calculation of FIXED RATE CERTIFICATED NOTES. Interest
Interest: on Fixed Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of a year
of twelve thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined as set
forth in the form of such Notes. Interest on Floating Rate
Certificated Notes will be calculated on the basis of actual
days elapsed and a year of 360 days, except that, in the
case of Treasury Rate Notes and
C-20
CMT Rate Notes, interest will be calculated on the basis of
the actual number of days in the year.
Payments of The Company will pay to the Trustee, as
Principal and the paying agent, the principal amount
Interest: of each Certificated Note (other than an Amortizing Note),
together with interest due thereon, at its Maturity Date or
upon redemption or repayment of such Note in funds available
for immediate use by the Trustee. In the case of an
Amortizing Note, the Company will pay to the Trustee, as
paying agent, the principal amount due on such Note on such
date, together with interest due thereon, at its Maturity
Date or upon redemption or repayment of such Note in funds
available for immediate use by the Trustee. The Trustee
will pay such amount to the holder of such Note at its
Maturity Date or upon redemption or repayment of such Note
upon presentation and surrender of such Note to the Trustee.
Such payment, together with payment of interest due at
maturity or upon redemption or repayment, will be made in
funds available for immediate use by the holder of such
Note. Promptly after such presentation and surrender, the
Trustee will cancel such Certificated Note in accordance
with the terms of the Indenture and deliver it to the
Company with a certificate of cancellation. Unless
otherwise specified in the applicable Pricing Supplement,
all interest payments on a Certificated Note or, in the case
of a Certificated Amortizing Note, payments of principal and
interest (other than interest (or interest and principal)
due at maturity or upon redemption or repayment) will be
made by check drawn on the Trustee (or another person
appointed by the Trustee) and mailed by the Trustee to the
person entitled thereto as provided in such Note and the
Indenture; PROVIDED, HOWEVER, that (i) the holder of
$10,000,000 or more of Notes having the same Interest
Payment Date will be entitled to receive payment by wire
transfer of immediately available funds and (ii) unless
otherwise specified in the applicable Pricing Supplement or
unless alternative arrangements are made, payments on Notes
in a currency other than U.S. dollars will be made by wire
transfer of immediately available funds to an account
maintained by the payee with a bank located outside the
United States and, with respect to clauses (i) and (ii)
above, the holder of such
C-21
Notes will provide the Trustee with appropriate and timely
wire transfer instructions.
Promptly after each Record Date, the Trustee will deliver to
the Company a written notice specifying the amount of
interest to be paid on each Certificated Note other than an
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or any earlier redemption or repayment date) and
the total of such amounts. In the case of Amortizing Notes,
the Trustee will provide separate written notice to the
Company specifying the amount of interest and principal to
be paid on each Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date coinciding
with maturity or any earlier redemption or repayment date)
and the total of such amounts. Interest at maturity or upon
redemption or repayment will be payable to the person to
whom the payment of principal is payable. On or about the
first Business Day of each month, the Trustee will deliver
to the Company a written list of principal and interest, to
the extent ascertainable, to be paid on each Certificated
Note including Amortizing Notes maturing or to be redeemed
or repaid in the following month. The Trustee will be
responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate Certificated
Note is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from
and after such Interest Payment Date, Maturity Date or
redemption or repayment date, as the case may be. If any
Interest Payment Date or the Maturity Date or redemption or
repayment date of a Floating Rate Certificated Note would
otherwise fall on a day that is not a Business Day with
respect to such Note, the payment due on such day shall be
made on the next succeeding day that is a Business Day with
respect to such Note with the same effect as if such
Business Day were the stated Interest Payment Date, Maturity
Date or date of redemption or repayment, as the case may be,
except that, in the case of Certificated LIBOR Notes, if
such Business Day is in the next succeeding calendar month,
such Interest
C-22
Payment Date, Maturity Date or redemption or repayment date
shall be the immediately preceding day that is a Business
Day with respect to such Certificated LIBOR Notes.
Preparation of If any order to purchase a Certificated
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a Pricing Supplement
reflecting the terms of such Note and will arrange to file
by XXXXX such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and will deliver the number of copies of such
Pricing Supplement to the relevant Agent as such Agent shall
request by the close of business on the following Business
Day. The relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agent receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to which
they are attached (other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for an authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of such Note
against receipt of immediately available funds shall
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the fifth
Business Day following such acceptance pursuant to the
timetable for settlement set forth below unless the Company
and the purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company to or through an Agent
shall be as follows (unless otherwise specified pursuant to
a Terms Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Certificated Note and of the
following settlement information:
C-23
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Currency or currency unit, principal amount
and, if different, currency in which payments
of principal and interest may be made.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semi-annually
and whether such Note is an Amortizing Note
and, if so, the Amortization Schedule, or, in
the case of a Floating Rate Certificated
Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate Rate
Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined as
provided in the Agreement.
C-24
11. Denominations.
12. Net proceeds to the Company.
13. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
14. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Trustee.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by such Agent for
payment to the account of the Company maintained
at the Trustee, New York, New York (or, with
respect to Notes payable in a
C-25
Specified Currency other than U.S. dollars, to an
account maintained at a bank selected by the
Company notified to the relevant Agent from time
to time in writing) in funds available for
immediate use, of an amount equal to the price of
such Note less such Agent's commission, if any.
In the event that the instructions given by such
Agent for payment to the account of the Company
are revoked, the Company will as promptly as
possible wire transfer to the account of such
Agent an amount of immediately available funds
equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will
also send to the Company a statement setting forth
the principal amount of the Notes outstanding as
of that date under the Indenture and setting forth
a brief description of any sales of which the
Company has advised the Trustee but which have not
yet been settled.
Settlement For sales by the Company of Certificated Notes
Procedures to or through an Agent (unless otherwise
Timetables: specified pursuant to a Terms Agreement), Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 p.m. on day before
settlement date
B. 3:00 p.m. on day before
settlement date
C-D 2:15 p.m. on settlement date
C-26
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure to If a purchaser fails to accept delivery
Settle: of and make payment for any Certificated Note, the relevant
Agent will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire transfer to the
account of such Agent an amount equal to the amount
previously credited thereto in respect of such Note. Such
wire transfer will be made on the settlement date, if
possible, and in any event not later than the Business Day
following the settlement date. If the failure shall have
occurred for any reason other than a default by such Agent
in the performance of its obligations hereunder and under
the Agreement, then the Company will reimburse such Agent or
the Trustee, as appropriate, on an equitable basis for its
loss of the use of the funds during the period when they
were credited to the account of the Company (such
reimbursement for loss of the use of such funds to be based
on the federal funds effective rate then in effect).
Immediately upon receipt of the Certificated Note in respect
of which such failure occurred, the Trustee will xxxx such
Note "cancelled", make appropriate entries in the Trustee's
records and send such Note to the Company.
Posting Rates The Company and the Agents will from time
by Company: to time discuss the rates of interest per annum to be borne
by and the maturity of Securities that may be sold as a
result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and
maturities for an offering period ("posting"). If the
Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the
Agent.
Trustee Not to Nothing herein shall be deemed to
Risk Funds: require the Trustee to risk or expend its own funds in
connection with any payments to the Company, the Agents or
any holders of Notes, it being understood by all parties
that payments made by the Trustee to the Company, the Agents
or any holders of Notes shall be made only to the extent
that funds are provided to the Trustee for such purpose.
C-27
C-28
Exhibit D
FOREIGN CURRENCY AMENDMENT NO. ___________
TO DISTRIBUTION AGREEMENT, DATED MARCH 21, 1996
AS AMENDED
-----------------------------------------------
[Insert Title of Foreign Currency]
The undersigned hereby agree that for the purposes of the issue and
sale of Securities denominated in [title of currency or currency unit] (the
"Applicable Foreign Currency") pursuant to the Distribution Agreement, dated
March 21, 1996, as it may be amended (the "Distribution Agreement"), the
following additions and modifications shall be made to the Distribution
Agreement. The additions and modifications adopted hereby shall be of the same
effect for the sale under the Distribution Agreement of all Securities
denominated in the Applicable Foreign Currency, whether offered on an agency or
principal basis, but shall be of no effect with respect to Securities
denominated in any currency or currency unit other than the Applicable Foreign
Currency.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement. The terms Agent or Agents, as used in the
Distribution Agreement, shall be deemed to refer only to the undersigned Agents
for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc., according to the customary practice of the Agents
when acting as underwriters in offerings of the Applicable Securities.]
_________, 19__
XXXXXXX XXXXX, INC.
By ________________
Name:
Title:
[Name(s) of Agent(s) participating
in the offering of Notes in the Applicable Foreign Currency]
By ________________
Name:
Title: