EXHIBIT 10.5
EXECUTION COPY
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DEALER AGREEMENT
dated as of August 7, 1997
between
FCTR, INC.,
RCTR, INC.,
CITICORP SECURITIES, INC.
and
XXXXXX BROTHERS INC.
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TABLE OF CONTENTS
1. Certain Definitions .................................................... 1
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2. Appointed as Dealer .................................................... 1
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3. Offers, Sales and Resales of the Notes ................................. 2
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4. Representations and Warranties ......................................... 4
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5. Additional Representation and Warranty ................................. 6
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6. Covenants .............................................................. 6
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7. Conditions Precedent to Sale of the Notes .............................. 8
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8. Delivery of and Payment for the Notes .................................. 8
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9. Indemnification ........................................................ 9
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10. Fees and Expenses .................................................... 10
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11. Notices .............................................................. 10
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12. Governing Law......................................................... 12
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13. Jurisdiction.......................................................... 12
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14. Choice of Forum....................................................... 12
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15. Amendment and Termination; Successors; Counterparts................... 12
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16. Captions.............................................................. 12
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17. Effective Date........................................................ 13
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18. Severability of Provisions............................................ 13
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19. Bankruptcy............................................................ 13
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20. Limited Recourse...................................................... 13
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21. Entire Agreement...................................................... 13
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22. Assignment............................................................ 13
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23. Several Obligations................................................... 13
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Exhibits
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EXHIBIT A Form of Confidentiality Agreement
DEALER AGREEMENT, dated as of August 7, 1997 (this
"Agreement"), among FCTR, INC., a Delaware corporation
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("Xxxxx"), RCTR, INC., a Delaware corporation ("Leasco"),
CITICORP SECURITIES, INC., a Delaware corporation ("CSI"),
and XXXXXX BROTHERS INC., a Delaware corporation ("LBI", and
together with CSI and any other dealers for Commercial Paper
Notes engaged by Xxxxx from time to time that agree to
become parties to the Collateral Agreement, the "Dealers").
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W I T N E S S E T H:
WHEREAS, Xxxxx has requested each Dealer to act as a commercial paper
dealer for Xxxxx'x secured notes with maturities of up to 58 days from date of
issue (collectively, the "Notes").
WHEREAS, Notes will be represented by either individual note
certificates in physical form ("Certificated Notes") or a master note (the
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"Master Note") of Xxxxx. Notes represented by a master note shall be referred
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to herein as "Book-Entry Notes." Certificated Notes shall be issued
substantially in the form of Exhibit A to that certain Depositary Agreement,
dated as of August 7, 1997, between Xxxxx and Citibank, N.A. (as the same may be
from time to time amended, supplemented or otherwise modified and in effect, the
"Depositary Agreement"), while the Master Note shall be issued substantially in
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the form included in Exhibit E to the Depositary Agreement.
WHEREAS, each Dealer has indicated its willingness to act as dealer
for the Notes, subject to the satisfactory completion of such investigation and
inquiry into Xxxxx'x business as each Dealer deems appropriate under the
circumstances.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. Certain Definitions. For all purposes of this Agreement, except as
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otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in, or incorporated by reference into, Annex A to that certain
Liquidity Agreement dated as of August 7, 1997 among Xxxxx, certain financial
institutions as Liquidity Lenders and Citibank, N.A., as the Liquidity Agent for
the Liquidity Lenders (as the same may from time to time be amended,
supplemented, or otherwise modified and in effect, the "Liquidity Agreement").
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2. Appointed as Dealer. (a) Xxxxx hereby appoints the Dealers as
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dealers for the Notes and acknowledges that the Dealers shall have the right to
assist Xxxxx in the sale or placement of the Notes during the term of this
Agreement. Xxxxx agrees that during the period the Dealers are acting as
Xxxxx'x dealers hereunder, Xxxxx shall not directly contact or solicit potential
investors to purchase the Notes. Xxxxx further agrees during such period that
it will not engage any person or party other than the Dealers to assist in the
sale or placement of the Notes unless any such dealer enters into an agreement
with Xxxxx that is in form and substance substantially similar to this
Agreement. Xxxxx further agrees to provide the Dealers with a copy of any such
other agreement immediately following the execution thereof. While the Dealers
shall not have any obligation to purchase, as principal, Notes from Xxxxx, or to
offer or sell any Notes, under any circumstances, and while Xxxxx shall have no
obligation to sell Notes to, or to arrange sales of Notes through, the Dealers,
each Dealer may, from time to time, purchase in its sole discretion Notes, as
principal, from Xxxxx.
(b) Xxxxx and each Dealer respectively agree that any Notes, the placement
of which a Dealer arranges or which are purchased by a Dealer, shall be placed
or purchased by such Dealer in reliance on the representations, warranties,
covenants and agreements of Xxxxx contained herein or made pursuant hereto and
on the terms and conditions and in the manner provided herein. All transactions
involving the Notes between a Dealer and Xxxxx shall be in accordance with the
generally accepted custom and practice prevailing in the commercial paper market
at such times.
(c) Upon receipt of instructions from Xxxxx, each Dealer will solicit
purchases of such principal amount of the Notes and with such discounts,
interest rates and maturities as Xxxxx and such Dealer shall agree upon from
time to time during the term of this Agreement. Such Dealer shall have no
liability to Xxxxx in the event any such purchase is not consummated for any
reason. Unless otherwise instructed by Xxxxx, each Dealer will communicate to
Xxxxx, orally or in writing, each offer to purchase Notes, other than offers
rejected by such Dealer. Each Dealer shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, in whole or in
part.
(d) Xxxxx may instruct any Dealer to suspend solicitation of purchases of
Notes at any time (other than Notes held by any Dealer as principal). Upon
receipt of such instruction, such Dealer will forthwith suspend solicitation
until such time as Xxxxx has advised it that solicitation of purchases may be
resumed.
3. Offers, Sales and Resales of the Notes. (a) All offers and sales
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of the Notes by Xxxxx shall be effected pursuant to the exemption from the
registration requirements of the Act provided by Section 4(2) thereof, which
exempts transactions by an issuer not involving any public offering. Offers and
sales of the Notes by Xxxxx through the Dealer acting as agent for Xxxxx will be
made in accordance with Rule 506 under the Act. Notes may be resold or
otherwise transferred by the holders thereof only if they are registered under
the Act or if an exemption (including the exemption afforded by Rule 144A) from
the registration requirements of the Act is available; provided, however, that
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Xxxxx shall have no obligation under this Agreement to register the Commercial
Paper Notes under the Act and has no intention of doing so at any time in the
future.
(b) The Dealer (only with respect to offers and sales made by it as agent
for Xxxxx and reoffers and subsequent resales or other transfers made by or
through it), and Xxxxx (with respect to subsequent resales or other transfers
made with its approval and not to or through the Dealer or any other dealer for
the Notes or made pursuant to Rule 144A) hereby establish and agree to observe
the following procedures in connection with offers, sales and subsequent resales
or other transfers of the Notes:
(i) Offers and sales of the Notes will be made only to institutional
investors that are reasonably believed to qualify as "accredited investors"
as defined in Rule 501(a)(1), (2) or (3) under the Act (each, an
"Institutional Accredited Investor").
(ii) Resales and other transfers of the Notes will be permitted to be
made only to institutional investors that the Dealer or Xxxxx, as
applicable, reasonably believes to be Institutional Accredited Investors
or, in the case of Notes resold or otherwise transferred pursuant to Rule
144A, to institutional investors that the Dealer or Xxxxx, as applicable,
reasonably believes to qualify as "qualified institutional buyers" as
defined in Rule 144A (each, a "Qualified Institutional Buyer"). Neither
the Dealer nor Xxxxx will be liable to any person or entity for any resales
or other transfers made in violation of the foregoing conditions that are
not made (i) by or through it in the case of a Dealer or (ii) with its
approval in the case of Xxxxx.
(iii) No general solicitation or general advertising will be used in
connection with the offering of the Notes.
(iv) Each Commercial Paper Note shall contain a legend in
substantially the form set forth on the forms of the Notes attached as
Exhibits A and E to the Depositary Agreement stating that such Note has not
been registered under the Act or any other applicable securities law, that
by its acceptance of the Note the purchaser acknowledges that it is aware
that the seller may rely on an exemption from the provisions of Section 5
of the Act pursuant to Rule 144A, represents that it is an Institutional
Accredited Investor or a Qualified Institutional Buyer and agrees that the
Note is not being acquired with a view to distribution and any resale of
such Note will be made only (i) to or through the Dealer or another person
designated by Xxxxx as a dealer for the Notes to an institutional investor
approved by the Dealer or another such dealer as an Accredited
Institutional Investor or a Qualified Institutional Buyer or (ii) to a
Qualified Institutional Buyer in a transaction made pursuant to Rule 144A
and only in a transaction exempt from registration under the Act.
(v) For so long as any of the Notes are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act,
(i) Xxxxx will cause to be provided to any holder of Notes and any
prospective purchaser of the Notes designated by a holder of such Notes,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Act and (ii) Xxxxx shall update such information from
time to time in order to prevent such information from becoming false or
misleading and Xxxxx will take such other actions as are necessary to
ensure that the safe harbor exemption from the registration requirements of
the Act under Rule 144A is and will be available for resale of the Notes
conducted in accordance with Rule 144A.
(vi) No sale of Notes to any one purchaser will be for less than
$100,000 face amount and no Note will be issued in a smaller face amount.
If the purchaser is a non-bank fiduciary acting on behalf of others, each
person for whom it is acting must purchase at least $100,000 face amount of
the Notes.
(vii) The Notes will bear such interest rates (if interest-bearing), or
will be sold at such discounts from their face amounts, as shall be
mutually agreed to by Xxxxx and the Dealers at the time of each proposed
purchase or placement.
(viii)The Notes will be issued by Xxxxx in the ordinary course of its
business and financial affairs, will have a maturity at the time of
issuance of not more than 58 days (exclusive of days of grace) and will not
contain any provision for automatic "rollover".
(ix) In connection with the offer and sale of the Notes a commercial
paper offering memorandum (as amended or supplemented from time to time and
including the information incorporated therein by reference, the "Offering
Memorandum") relating to Xxxxx and the transactions contemplated by the
Related Documents will be prepared by Xxxxx. Each Dealer shall make a copy
of such Offering Memorandum available to each purchaser or prospective
purchaser of the Notes. The Offering Memorandum will describe, among other
things, (i) the Notes, (ii) the proposed use of proceeds of sales of the
Notes, (iii) the business of Xxxxx, and (iv) the terms of and parties to
the Related Documents. All documents incorporated by reference into the
Offering Memorandum (if any) will be offered to each prospective purchaser
of Notes at no charge. In connection with such Offering Memorandum and to
assist the normal credit review procedures of each Dealer, Xxxxx agrees to
furnish such Dealer with the
information and reports set forth in Section 8.01 of the Liquidity
Agreement and such other information and reports concerning the business of
Xxxxx, the offering and sale of the Notes and the related transactions as
such Dealer reasonably requests; provided that such Dealer enters into a
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confidentiality agreement substantially in the form of Exhibit A attached
hereto (the "Confidentiality Agreement"). Any such information may only be
disclosed by any of the Dealers (i) pursuant to the terms of the
Confidentiality Agreement or (ii) if (A) the party to whom such information
is being disclosed signs a confidentiality agreement substantially similar
to the Confidentiality Agreement, and (B) such disclosure is approved by
Xxxxx.
(x) The Offering Memorandum will not be distributed by any Dealer
unless it is in a form satisfactory to such Dealer and Xxxxx. No Dealer
shall be responsible for any inaccuracy in the Offering Memorandum.
4. Representations and Warranties. (a) Xxxxx represents and warrants
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to each Dealer as of the date hereof and as of each date contemplated by Section
5 hereof that:
(i) Xxxxx (A) has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware
and (B) has the requisite corporate power and authority to execute and
deliver this Agreement, the Notes, the Depositary Agreement, the Loan
Agreement, the Liquidity Agreement, the Collateral Agreement and any
other Related Documents to which Xxxxx is a party and perform its
obligations hereunder and thereunder and to own its properties and
conduct its business as described in the Offering Memorandum.
(ii) Xxxxx is not in violation of its organic documents and no
Amortization Event, Limited Amortization Event, Loan Event of Default,
Liquidation Event of Default or, to Xxxxx'x knowledge, Potential
Amortization Event, Potential Loan Event of Default or Potential
Liquidation Event of Default, has occurred and is continuing. The
execution and delivery of this Agreement and the other Related Documents
and the incurrence of the obligations and consummation of the transactions
herein contemplated will not conflict with, or constitute a breach of or
default under, the certificate of incorporation or by-laws of Xxxxx or
constitute a breach of or default under any contract, indenture, mortgage,
loan agreement or lease, to which Xxxxx is a party or by which Xxxxx may be
bound (which breach or default may reasonably be expected to materially
adversely affect the Noteholders or Xxxxx'x ability to perform its
obligations under the Notes and the Related Documents), or any law,
administrative regulation or court decree applicable to Xxxxx.
(iii) Each of this Agreement, the Depositary Agreement and the other
Related Documents to which Xxxxx is a party has been duly authorized,
executed and delivered by Xxxxx and constitutes the legal, valid and
binding obligation of Xxxxx enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting generally the enforcement of
creditors' rights or by general equitable principles.
(iv) The Notes have been duly authorized for issuance, offer and sale
as contemplated by this Agreement and, when issued and delivered against
payment of the purchase price therefor, will constitute legal, valid and
binding obligations of Xxxxx enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, or
other similar laws relating to or affecting generally the enforcement of
creditors' rights or by general equitable principles.
(v) No consent, approval, authorization, order, registration or
qualification of or with any court or any regulatory authority or other
governmental agency or body (including the SEC) is required for the
issuance, offer or sale of the Notes by Xxxxx in accordance with the terms
of this Agreement and the Depositary Agreement or for the consummation of
the transactions contemplated by this Agreement and the other Related
Documents.
(vi) There are no legal or governmental proceedings pending to which
Xxxxx is a party or of which any property of Xxxxx is the subject, other
than as set forth in the Offering Memorandum or otherwise disclosed in
writing to the Dealers by Xxxxx and other than legal or governmental
proceedings which, in each case, will not have a material adverse effect on
Xxxxx'x ability to perform its obligations under the Related Documents; and
to the best of its knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(vii) Xxxxx is not an "investment company", or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(viii)The Notes, when issued in accordance with the terms of this
Agreement and the Depositary Agreement, will be exempt from registration
under the Act pursuant to Section 4(2) thereof.
(ix) When issued in accordance with the Depositary Agreement, the
Notes will rank at least pari passu with all other senior secured
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indebtedness of Xxxxx.
(x) All representations and warranties of Xxxxx made in the Liquidity
Agreement and any other Related Document to which Xxxxx is a party are true
and correct in all material respects and are repeated herein as though
fully set forth herein.
(xi) The Offering Memorandum does not, and the Offering Memorandum as
supplemented or revised from time to time in accordance with this Agreement
shall not, contain any untrue statement of a material fact, or omit to
state a material fact necessary to make the statements contained therein in
the light of the circumstances under which they were made, not misleading;
provided, however, that this paragraph (xi) shall not apply to any
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information contained in the Offering Memorandum relating to any Liquidity
Lender.
(b) Leasco represents and warrants to each Dealer as of the date hereof
and as of each date contemplated by Section 5 hereof that:
(i) Leasco (A) has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware
and (B) has the requisite corporate power and authority to execute and
deliver this Agreement and each other Related Document to which Leasco
is a party and perform its obligations hereunder and thereunder.
(ii) Each of this Agreement and the other Related Documents to which
Leasco is a party has been duly authorized, executed and delivered by
Leasco and constitutes the legal, valid and binding obligation of Leasco
enforceable in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws relating to or
affecting generally the enforcement of creditors's rights or by general
equitable principles.
(iii) All representations and warranties of Leasco made in the Loan
Agreement and any other Related Document to which Leasco is a party are
true and correct in all material respects and are repeated herein as though
fully set forth herein.
5. Additional Representation and Warranty. Each acceptance by Xxxxx
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of an offer for the purchase of Notes shall be deemed an affirmation by each of
Xxxxx and Leasco that:
(i) the representations and warranties of Xxxxx and Leasco, as the
case may be, set forth in Section 4 hereof are true and correct at the time
of such acceptance in all material respects (except to the extent such
representations and warranties related solely to an earlier date, in which
case such representations and warranties were true and correct as of such
earlier date), and an undertaking that such representations and warranties
will be true and correct in all material respects at the time of delivery,
to the purchaser or its agent of the Note or Notes relating to such
acceptance, as though made at and as of such time (it being understood that
insofar as such representations and warranties relate to the Offering
Memorandum, such representations and warranties shall relate to the
Offering Memorandum delivered to prospective purchasers of Notes at the
time of such acceptance and at the time of such delivery of the Note or
Notes relating to such acceptance, respectively);
(ii) the conditions precedent to the issuance of the Notes set forth
in the Related Documents have been fulfilled and such Notes are entitled to
the benefits of the Liquidity Agreement and the Collateral Agreement;
(iii)the representations and warranties of Xxxxx, Leasco and, to the
best knowledge of Xxxxx and Leasco, TRS, as the case may be, set forth in
the Related Documents are true and correct in all material respects on and
as of such date as if made on and as of such date (except to the extent
such representations and warranties relate solely to an earlier date, in
which case such representations and warranties were true and correct as of
such earlier date); and
(iv) each of Xxxxx, Leasco and, to the best knowledge of Xxxxx and
Leasco, TRS has performed all covenants and agreements contained in this
Agreement and the Related Documents required to be performed by it on or
prior to such date.
6. Covenants. (a) Xxxxx will supply to each Dealer, on a continuing
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basis, copies of all correspondence with, and information that Xxxxx makes
available to, Standard & Poor's Ratings Group, a division of McGraw Hill, Inc.
("S&P) and Xxxxx'x Investors Service, Inc. ("Moody's"), in connection with the
transactions contemplated hereby and by the Related Documents.
(b) Xxxxx will supply to each Dealer, on a continuing basis, three (3)
copies of all audited annual reports and all unaudited interim reports required
to be supplied to Xxxxx by Leasco pursuant to the Loan Agreement.
(c) Pursuant to the Depositary Agreement, Xxxxx will maintain a segregated
trust account in the corporate trust department at the Depositary into which all
of the proceeds of the sale of the Notes (net of commissions) will be deposited
by the Depositary. Only (i) the net proceeds of the sale of the Notes and (ii)
such funds as, together with the proceeds of the Notes, shall be necessary to
make all payments in respect of the Notes, shall be deposited in such account,
which shall be maintained at the Depositary separate and apart from any other
account, but which may be subdivided into separate sub-accounts for bookkeeping
purposes.
(d) Xxxxx will not use the proceeds of Notes purchased and held by a
Dealer, as principal, for the purchase or carrying of securities to the extent
that such use would result in a violation of Regulations G, T, U or X
promulgated by the Board.
(e) Without the prior written consent of each Dealer, Xxxxx will not
permit to become effective (i) any amendment, supplement, rider, waiver,
termination, or consent to or under any Note, the Depositary Agreement or any
other Related Document to which it is a party which might adversely affect the
interests of the holder of any Notes then outstanding (provided that an
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amendment, supplement, rider, waiver, termination, or consent relating to a
change in the rating to "A-2" by S&P and "Prime-2" by Moody's shall become
effective without the prior written consent of each Dealer; provided, further,
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that each Dealer is given 60 days prior written notice), or (ii) the assignment
of Xxxxx'x, Leasco's or TRS's rights under any Related Document. Xxxxx will
give the Dealers written notice of any such proposed amendment, supplement,
rider, waiver, termination, consent or assignment at least ten days prior to the
effective date thereof, and will furnish prior notice to the Dealers of any
proposed resignation, termination or replacement of the Depositary. Xxxxx
agrees promptly to provide each of the Dealers with copies of any amendment,
supplement, rider, waiver, termination, or consent to or under any Note, the
Depositary Agreement or any other Related Document.
(f) Xxxxx will immediately notify each Dealer of any downgrade of which it
has knowledge, or notice received by Xxxxx of a potential downgrade, in the
rating of the Notes, in any event prior to any subsequent issuance of Notes, and
will promptly send to each Dealer a copy of any notice or letter to that effect
from S&P or Moody's.
(g) Xxxxx will use good faith efforts to arrange for the qualification of
the Notes for sale under the State securities or "blue sky" laws of such
jurisdictions in the United states as any Dealer may reasonably request and will
maintain such qualification in effect as long as required for the distribution
of the Notes; provided, however, that Xxxxx shall not be required to so qualify
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to the extent that, as a result of such qualification, Xxxxx would become
subject to service of process or franchise taxation as a foreign corporation in
any jurisdiction where it was not theretofore so subject.
(h) (i) Other than with respect to information therein relating the
Liquidity Lenders Xxxxx agrees to update the Offering Memorandum as necessary so
that at the time of each sale of Notes, the Offering Memorandum, as so updated,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, (ii) each of Xxxxx and
Leasco shall promptly inform the Dealers if any event occurs or condition exists
which makes it necessary to revise, amend or supplement the Offering Memorandum
in order that the Offering Memorandum will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, (iii) Xxxxx will not at any time amend the Offering Memorandum
so as to include any information with respect to any Liquidity Lender except for
such Liquidity Lender's name and related ratings and (iv) Xxxxx will not at any
time amend the Offering Memorandum so as to include "financial statements" of
Xxxxx as a part of such Offering Memorandum; provided, however, that prior to
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any offer or sale of Notes, each Dealer shall, with the cooperation and consent
of Xxxxx, have the right to make such reasonable due diligence investigation of
the business of Xxxxx, Leasco and TRS as is usual in the course of continuous
offerings of debt instruments.
(i) Xxxxx will, promptly upon receiving notice thereof or obtaining actual
knowledge thereof, notify the Dealers upon the occurrence of any Amortization
Event, Potential Amortization Event, Limited Amortization Event or Potential
Limited Amortization Event.
(j) Xxxxx will provide each Dealer with each notice or copy of notice
required to be provided by Xxxxx to the Dealers under this Agreement or any
other Related Document.
(k) For the period commencing on the date hereof and ending the date that
is one year and one day after the date upon which all Notes are paid in full,
Xxxxx agrees that each of the Related Documents and each contract to which Xxxxx
is or will be a party (other than contracts for trade payables or contracts
arising in connection with other ordinary operating expenditures) shall include
a provision pursuant to which each party thereto shall agree that, prior to the
close of such period, it will not institute against, or join any other person in
instituting against, Xxxxx any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any bankruptcy
or similar law.
(l) Xxxxx will not, without the prior written consent of the Dealers
(which consent shall not be unreasonably withheld), amend the Offering
Memorandum to include any information with respect to any Liquidity Lender.
(m) Xxxxx will, promptly upon receiving notice thereof or obtaining actual
knowledge thereof, notify the Dealers if at any time the Notes are no longer
eligible for transfer pursuant to Rule 144A of the Act.
7. Conditions Precedent to Sale of the Notes. (a) Prior to the initial
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sale of Notes hereunder, Xxxxx shall cause to be delivered to each Dealer (i)
written opinions of counsel to Xxxxx, Leasco and TRS substantially in the form
of Exhibits M-1, M-2 and N to the Liquidity Agreement, (ii) a certificate of the
Secretary or other appropriate officer of each of Xxxxx, Leasco and TRS
certifying true copies of the resolutions of Xxxxx, Leasco and TRS,
respectively, approving this Agreement and each other Related Document and the
transactions contemplated hereby and thereby and certifying the incumbency,
authority and true signatures of the officers of Xxxxx, respectively, authorized
to sign this Agreement and each other Related Document to which Xxxxx, Leasco or
TRS is a party, (iii) an original executed copy, photocopy or conformed copy of
each Related Document, which shall be in form and substance reasonably
acceptable to each Dealer, (iv) the letters from the Rating Agencies regarding
the ratings described in paragraph (b) and (v) a certified copy of Xxxxx'x
certificate of incorporation and its by-laws.
(b) Prior to the initial sale of any Notes hereunder, such Notes have been
rated at least "A-1" by S&P and "Prime-1" by Moody's and the Notes shall be
rated so by each of S&P and Moody's upon each subsequent sale of Notes hereunder
or shall be rated such other rating as may be acceptable to the Dealers;
provided that the Dealers hereby agree that a rating of A-2 by S&P and Prime-2
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by Xxxxx'x is acceptable if such rating results solely from a downgrading of any
Liquidity Lender.
(c) It will be a condition precedent to the initial issuance of any Notes
and each subsequent issuance of Notes that the issuance of such Notes will not
cause Xxxxx to have a negative net worth.
8. Delivery of and Payment for the Notes. (a) On the date of a
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proposed issuance of Notes, Xxxxx shall confer with one or more Dealers as to
the face or principal amount, maturities and
denominations thereof, the applicable interest rates or the discounts from the
face amounts, at which the Notes are to be issued.
(b) When agreement is reached on the foregoing, (i) if the Notes are
evidenced by Certificated Notes, Xxxxx will instruct the Depositary to deliver
executed and countersigned Certificated Notes to (ii) if such Notes are to be
placed by CSI, to Citicorp, N.A., 00 Xxxxxxxx Xxxxx, Xxxxx X, Xxx Xxxx Xxx Xxxx
00000, Attention: Anton, and (b) if such Notes are to be placed by LBI, to The
Chase Manhattan Bank (for the account of LBI), Four Xxx Xxxx Xxxxx, Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in each case, prior to 2:15 p.m., New York City
time, on the date of issuance and (iii) if the Notes are Book-Entry Notes, the
issuance of and payment for such Notes will be governed by a letter agreement
among Xxxxx, the Depositary and The Depository Trust Company, dated as of the
Closing Date (as amended, supplemented or otherwise modified and in effect, the
"DTC Representation Letter").
(c) Following a Dealer's receipt of duly and properly completed
Certificated Notes, such Dealer or its agent will transfer by the close of
business on such day immediately available funds to the Depositary or to such
other bank as may be designated in writing by Xxxxx to such Dealer in an amount
equal to the net proceeds of the Certificated Notes.
(d) On any date on which Notes are to be sold hereunder, each Dealer shall
notify the Depositary by 11:00 a.m. (New York City time) on such day of the
amount of Notes placed by such Dealer by that time on such day.
(e) On any date on which Notes are to be issued hereunder, each Dealer
shall inform the Depositary as soon as practicable but not later than 11:00
a.m., New York City time on any day on which such Dealer believes it will be
unable to place Notes.
9. Indemnification. Xxxxx agrees to assume liability for and to
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indemnify, protect, save and hold harmless each Dealer, each Person controlling
such Dealer within the meaning of the Act, or any affiliate of any such Person
or a Dealer and their respective officers, directors, shareholders, partners,
servants, trustees, employees and agents (all of such indemnified entities
hereinafter the "Indemnitees") from and against any and all losses, liabilities,
claims, damages, penalties, causes of action, suits, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) or
judgments of whatever kind and nature, imposed upon, incurred by or asserted
against the Indemnitees, which are (x) based upon or arising under the
securities laws of the United States of America or of any state and any
regulation, rule or interpretation thereunder or thereof to the extent arising
from the transactions contemplated hereby, (y) based upon the inaccuracy of any
material representation or warranty made or reaffirmed by Xxxxx or Leasco or the
breach of any material agreement or material covenant of Xxxxx or Leasco
contained herein or (z) based upon any untrue statement or alleged untrue
statement of a material fact in the Offering Memorandum, or the omission or
alleged omission (except with respect to omitted information regarding Liquidity
Lenders) from the Offering Memorandum of a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. In the case that any claim, suit, action, investigation,
litigation or other proceeding is brought against any Indemnitee and such
Indemnitee notifies Xxxxx of the commencement thereof, Xxxxx will be entitled to
participate therein, and, to the extent that Xxxxx may elect by written notice
delivered to the Indemnitee, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnitee; provided that if the defendants in
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any such claim, suit, action, investigation, litigation or other proceeding
include both the Indemnitee and Xxxxx and the Indemnitee shall have concluded
that there may be legal defenses available to it which are different from or
additional to those available to Xxxxx, the Indemnitee shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such Proceeding on behalf of such
Indemnitee. Upon receipt of notice from Xxxxx to such Indemnitee of Xxxxx'x
election so to assume the defense of such claim, suit, action, investigation,
litigation or other proceeding and approval by the Indemnitee, Xxxxx will not be
liable to such Indemnitee for expenses incurred by the Indemnitee in connection
with the defense thereof (other than reasonable costs of investigation) unless
(i) the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that Xxxxx shall not be liable for the
expenses of more than one separate counsel representing the Indemnitees who are
parties to such claim, suit, action, investigation, litigation or other
proceeding), (ii) Xxxxx shall not have employed counsel reasonably satisfactory
to the Indemnitee to represent the Indemnitee within a reasonable time after
notice of commencement of the claim, suit, action, investigation, litigation or
other proceeding or (iii) Xxxxx has authorized in writing the employment of
counsel for the Indemnitee or (iv) a conflict or potential conflict exists
(based upon written advice of counsel to the Indemnitee) between the Indemnitee
and the Company (in which case the Company will not have the right to direct the
defense of such action on behalf to the Indemnitee), in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the Company. Xxxxx agrees that, without any Indemnitee's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any claim, suit, action, investigation, litigation or other
proceeding in respect of which indemnification may be sought under the
indemnification provision of this Agreement (whether or not such Indemnitee is
an actual or potential party to such claim, suit, action, investigation,
litigation or other proceeding), unless such settlement, compromise or consent
includes an unconditional release of each Indemnitee from all liability arising
out of such claim, suit, action, investigation, litigation or other proceeding.
The foregoing indemnities will also extend to any supplemental
material subsequently furnished in writing to any Dealer by Xxxxx, Leasco or TRS
for distribution to purchasers or prospective purchasers during the term of this
Agreement.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 9 is for
any reason held unavailable (otherwise than in accordance with the terms of this
Section 9), Xxxxx and Leasco on the one hand, and any Indemnitee, on the other
hand, sought to be charged with any liability shall contribute to the aggregate
costs of satisfying such liability in the proportion of their respective
economic interests. For purposes of this Section 9, the "economic interests" of
Xxxxx and Leasco shall be equal to the aggregate proceeds of the Notes issued in
connection with this Agreement received by Xxxxx and the "economic interest" of
any Indemnitee shall be equal to the aggregate commissions and fees earned
hereunder by the Dealer affiliated with such Indemnitee.
The obligations of Xxxxx under this Section 9 shall survive any
termination of this Agreement, in whole or in part.
10. Fees and Expenses. The Dealers shall be entitled to compensation in
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the amounts mutually agreed upon (orally or in writing) between Xxxxx and each
of the Dealers from time to time. Xxxxx shall reimburse each Dealer for all of
such Dealer's reasonable out-of-pocket expenses related to the printing and
distribution of any Offering Memorandum and any advertising expenses and the
reasonable fees and disbursements of its counsel in connection with the review
and negotiation of this Agreement and the Related Documents.
11. Notices. Unless otherwise indicated, all notices required under the
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terms and provisions hereof shall be in writing, either delivered by hand, by
mail (postage prepaid), or by telex,
telecopier or telegram, and any such notice shall be effective when received at
the address specified below.
If to Xxxxx:
FCTR, INC.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention of: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Leasco:
RCTR, INC.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention of: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Dealers:
CITICORP SECURITIES, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of: Xxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and
XXXXXX BROTHERS INC.
3 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of: Commercial Paper Product Management
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 11 to the other party
hereto.
12. Governing Law. THIS AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. Jurisdiction. Each of Xxxxx and Leasco irrevocably agrees, for the
--------------
benefit of the holders of Notes and each Dealer, that any legal action, suit or
proceeding against it arising out of this Agreement may be brought in the United
States District Court for the Southern District of New York or in the courts of
the State of New York and hereby irrevocably accepts and submits to the
nonexclusive jurisdiction of each of the aforesaid courts in personam, generally
and unconditionally with respect to any action, suit or proceeding for itself
and in respect of its properties, assets and revenues. Each of Xxxxx and Leasco
designates CT Corporation System with offices at 0000 Xxxxxxxx, Xxx Xxxx, XX
00000 as its agent to receive, accept and acknowledge on its behalf, service of
any legal process, summons, notices and documents which may be served in any
such action, suit or proceeding brought in the United States District Court for
the Southern District of New York or in the courts of the State of New York
which may be made on such agent in accordance with legal procedures prescribed
for such courts. If for any reason such agent shall cease to be available to
act as such, Xxxxx and Leasco agree to designate a new agent in The City of New
York satisfactory to each Dealer. Each of Xxxxx and Leasco further irrevocably
agrees to the service of any legal process, summons, notices and documents out
of any of the aforesaid courts by mailing copies thereof by registered or
certified air mail, postage prepaid, to it at its address designated pursuant to
this Agreement. Nothing herein shall in any way be deemed to limit the ability
of the holder of any Notes or any Dealer, to serve any such legal process,
summons, notices and documents in any other manner, as may be permitted by
applicable law or to obtain jurisdiction over Xxxxx or Leasco, or bring actions,
suits or proceedings against Xxxxx or Leasco in such other jurisdictions, and in
such manner, as may be permitted by applicable law.
14. Choice of Forum. Each of Xxxxx and Leasco agrees that any suit,
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action or proceeding brought by Xxxxx or Leasco against any Dealer in connection
with or arising out of this Agreement, any agreement, instrument or document
entered into in connection with this Agreement or the offer and sale of Notes
shall be brought solely in either the United States Federal courts located in
the Borough of Manhattan, The City of New York or in the courts of the State of
New York located in the Borough of Manhattan, The City of New York.
15. Amendment and Termination; Successors; Counterparts. (a) The terms
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of this Agreement shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by written instrument signed by all
parties hereto. Xxxxx may terminate this Agreement as to all parties or as to
one or more Dealers, or a Dealer may terminate this Agreement as to itself only
upon 30 days prior written notice to each other party hereto; provided that such
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termination shall not affect the obligations of the parties hereunder with
respect to Notes outstanding at the time of such termination and actions or
events occurring prior to such termination or with respect to Section 9, 10, 19,
20 or 22 hereof.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
(c) This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
16. Captions. The captions in this Agreement are for convenience of
----------
reference only and shall not define or limit any of the terms or provisions
hereof.
17. Effective Date. This Agreement shall be effective as of the date
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and year first above written.
18. Severability of Provisions. Any provision of this Agreement which is
----------------------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof or affecting the validity or
enforceability, of such provision in any other jurisdiction.
19. Bankruptcy. Each Dealer agrees that it will not institute against,
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or join any person in instituting against, Xxxxx, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
similar proceeding under the laws of any jurisdiction, for one year and a day
after the latest maturing Note of Xxxxx is paid in full. The agreement of each
Dealer under this Section 19 shall survive termination of this Agreement.
20. Limited Recourse. Notwithstanding anything to the contrary contained
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in this Agreement, and to the extent of funds available therefor pursuant to
Section 2.01 or 5.02(b), as applicable, of the Collateral Agreement, the
obligations of Xxxxx under this Agreement shall be payable solely to the extent
of funds received by Xxxxx in accordance with the Loan Agreement and such
obligations shall constitute a claim upon Xxxxx only to the extent of such funds
actually received by Xxxxx and available to satisfy such claim. No recourse
shall be had for the payment of any amount owing hereunder or for the payment of
any fee hereunder or any other obligation or claim arising out of or based upon
this Agreement against any stockholder, employee, officer, director or
incorporator of Xxxxx; provided, however, that the foregoing shall not relieve
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any such person or entity from any liability they might otherwise have as a
result of fraudulent actions or omissions taken by them. The agreement of each
Dealer under this Section 20 shall survive termination of this Agreement.
21. Entire Agreement. This Agreement constitutes the entire agreement
------------------
among the parties hereto with respect to the matters covered hereby and
supersedes all prior agreements and understandings among the parties.
22. Assignment. This Agreement may not be assigned by Xxxxx or Leasco
------------
without the prior consent of the Dealers and any such assignment without such
consent shall be null and void. This Agreement may be assigned or transferred
by any of the Dealers to any affiliate of such Dealer upon at least 30 days
prior written notice to Xxxxx; provided that the Dealer shall remain liable and
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responsible for its duties and obligations hereunder not theretofor fulfilled.
23. Several Obligations. Each of Xxxxx and Leasco acknowledges that the
---------------------
Dealers are acting severally under this Agreement, and not jointly, and no
Dealer shall have any responsibility whatsoever for any purchase commitment or
other undertaking made by any other Dealer hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
FCTR, INC.,
by /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
RCTR, INC.,
by /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
CITICORP SECURITIES, INC.,
as dealer
by /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
XXXXXX BROTHERS INC.,
as dealer
by /s/ Xxxxxx Xxxxxx
------------------
Name: Xxxxxx Xxxxxx
Title:
