Exhibit-4.5
ISSUING AND PAYING AGENT AGREEMENT
This Issuing and Paying Agency Agreement (the "Agreement"), dated as of May 19,
2000, between Xxxxxx'x Operating Company, Inc., a Delaware corporation (the
"Issuer"), Xxxxxx'x Entertainment, Inc. (the "Guarantor"), and Bank One,
National Association, a national banking association (the "IPA"), as issuing and
paying agent, in connection with the issuance and payment, in book entry only
form, of certain commercial paper master notes (collectively the "Notes"). The
Issuer hereby appoints the IPA its agent to issue, deliver and pay such Notes as
herein set forth. The Issuer hereby agrees with the IPA as follows:
1. Definitions.
Terms capitalized shall have the meanings assigned them below.
"Advance" means funds credited by the IPA to or on behalf of the Issuer
for the purpose of either crediting Proceeds to the Note Account or
remitting payment on Notes at their maturity.
"Agreement" means this Issuing and Paying Agency Agreement as defined
in the preamble, and includes the terms of the Exhibits.
"Business Day" means any day that both the IPA and DTC are open for
business.
"Certificate Agreement" means the Commercial Paper Certificate
Agreement dated May 17, 1994, between DTC and the IPA (formerly known
as The First National Bank of Chicago), a copy of which is attached
hereto as Exhibit C.
"Dealer" means any person other than an Issuer Agent which has been
authorized by the Issuer to deliver Issuance Instructions to the IPA
and is listed on an Incumbency Certificate.
"DTC" means The Depository Trust Company, a New York limited purpose
trust company, and its successors and assigns.
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"GAITIR License Agreement" means the nonexclusive, nontransferable
license agreement to use certain software products and associated
printed documentation pursuant to a separate license agreement attached
as Exhibit E.
"Incumbency Certificate" means the certificate of the Issuer,
substantially in the form of Exhibit A, executed by its Secretary or
any of its Assistant Secretaries, which identifies Issuer Agents from
time to time.
"Indemnified Persons" means the IPA and its officers, directors,
employees, and agents.
"Issuance Instructions" means the instructions as to issuance of Notes
delivered to the IPA by an Issuer Agent or Dealer pursuant to Section
3.B. of the Agreement.
"Issuer Agents" means those officers, employees, or agents of the
Issuer identified on an Incumbency Certificate the Issuer has
authorized to execute Notes, deliver Note Issuance Instructions, and
deliver other notices hereunder to the IPA.
"Manual" means the DTC Commercial Paper Issuing/Paying Agent Manual, as
modified from time to time, including the rules of the DTC Same Day
funds Settlement System, Money Market Instruments Program.
"Maturity Date" means the date any Note is payable by its terms.
"Note" or "Notes" means the commercial paper master notes of the Issuer
issued pursuant to the Agreement substantially in the form set forth in
Exhibit B.
"Note Account" means the Issuer's demand deposit account number
10-42472 established at the IPA pursuant to Section 6.A.
"Proceeds" means, with respect to any Note, funds representing the
purchase price for its original issuance.
"Representation Letter" means the agreement by and among the IPA, the
Issuer and DTC with respect to the Notes substantially in the form set
forth in Exhibit D.
2. Authorization.
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The Issuer shall deliver to the IPA upon execution of this Agreement an
Incumbency Certificate to designate the Issuer Agents and Dealers to
IPA. Until the IPA receives a subsequent Incumbency Certificate from
the Issuer, it may rely on the last such Incumbency Certificate
delivered to it. Any Note bearing the signature of an Issuer Agent on
the date such signature is affixed thereto shall bind the Issuer after
the authentication and delivery of such Note even if such person shall
have ceased to hold his or her office on the date such Note is
authenticated and delivered.
3. Notes.
A. The Notes shall be issued to DTC, or its nominee in
substantially the form set forth in Exhibit B, as appropriate.
In connection with the issuance of Notes, (i) the IPA and DTC
have previously entered into the Certificate Agreement and
(ii) the IPA, the Issuer and DTC shall jointly execute the
Representation Letter. The Issuer understands and acknowledges
that the execution of the Certificate Agreement and the
Representation Letter by the IPA is a necessary condition
precedent to the acceptance of the Notes by DTC and as such,
the Issuer agrees, (x) to be bound by the provisions of the
Certificate Agreement and Representation Letter and (y) that
the Certificate Agreement and Representation Letter shall
supplement the provisions of this Agreement.
B. Prior to 12:00 noon (Chicago Time) on each issuance date, an
Issuer Agent or Dealer shall provide the IPA with Issuance
Instructions specifying the issue date, interest rate (if
applicable), maturity date (which shall be no later than 270
days from the date of issuance thereof), proceeds amount,
maturity amount, payee and payee's settlement bank (which bank
must be a participant in the DTC book entry commercial paper
program).
C. Following receipt of Issuance Instructions, the IPA will
process such Issuance Instructions in accordance with and
subject to (i) this Agreement, (ii) the procedures set forth
in the Manual, (iii) the terms and conditions of the
Certificate Agreement and (iv) the terms and conditions of the
Representation Letter.
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Unless otherwise instructed by an Issuer Agent or Dealer,
Notes delivered under this Agreement shall be made against
payment as more fully set forth in Section 4 below. In the
event of a conflict between the terms of this Agreement and
the terms of the Manual, the Certificate Agreement, or the
Representation Letter, the provisions of this Agreement shall
control.
4. Proceeds of Sale of Notes.
A. The Issuer understands that when the IPA is instructed to
deliver against payment, the processing of Issuance
Instructions may not be completed simultaneously against the
receipt of payment. Accordingly, the IPA is authorized to
initiate delivery and to receive payment from the purchaser in
accordance with the provisions of the Manual. All such
payments shall be credited upon receipt to the Note Account.
The Issuer hereby agrees to bear the risk that the IPA fails
to receive payment of the Proceeds of any Notes issued
pursuant to Issuance Instructions.
B. Funds received by the IPA as Proceeds will be credited to the
Note Account. Prior to receipt of such Proceeds, the IPA may,
but shall not be obligated to, credit such Proceeds to the
Issuer by making an Advance. Upon telephonic, written (which
may be in facsimile form), or electronic instructions received
by the IPA from an Issuer Agent, an Advance may be (i) used in
payment of Notes presented for payment upon maturity, (ii)
deposited to an account of the Issuer at the IPA, or (iii)
transferred to the account of the Issuer at another bank. If
the IPA, in its sole discretion, makes an Advance, the Issuer
agrees to apply the Proceeds to repay such Advance. If such
Proceeds are insufficient to repay the Advance in full, the
Issuer agrees to repay such Advance within 24 hours from the
time such Advance was made. Interest on any Advance shall
accrue from the day such Advance is made, and shall bear
interest (i) in accordance with any separate agreement between
the Issuer and the IPA in effect at the time, or (ii) if no
such separate agreement is then in effect, then as described
in the IPA's standard fee schedule.
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5. Instructions.
A. The Issuer hereby authorizes the IPA to act in accordance with
Issuance Instructions received electronically or in writing
from an Issuer Agent or the Dealer as provided in the
following Sections 5.B and 5.C.
B. The Issuer or the Dealer may initiate Issuance Instructions
electronically pursuant to the GAITIR License Agreement or
otherwise in accordance with the IPA's standard business
practices. The IPA shall be entitled to rely on the Issuance
Instructions received electronically hereunder and may assume
conclusively that all such Issuance Instructions were
transmitted by the Issuer or on the Issuer's behalf.
C. Telephonic Issuance Instructions shall be given to the IPA by
an Issuer Agent or the Dealer at the telephone number
specified by the IPA from time to time for such purpose, and
shall be expressed to be for the attention of any of its
officers or employees whose name has been specified for such
purpose. The telephone numbers initially authorized for such
purpose are set forth in Exhibit F, which may be modified by
notice to the Issuer and each Dealer. Telephonic Issuance
Instructions to the IPA by an Issuer Agent or Dealer shall be
confirmed in writing by an Issuer Agent or Dealer within 24
hours of the time such instruction is given; provided that, in
the event a discrepancy exists between the Telephonic Issuance
Instructions and the subsequent confirmation, or in the
absence of receiving a written confirmation prior to the time
specified in Sections 3.B. above, the Telephonic Issuance
Instructions shall be deemed the proper and controlling
Issuance Instructions. A written confirmation may be effected
by any electronic means of communications, including
transmission by telecopier or computer.
6. Note Account.
A. For purposes of the transactions contemplated herein, the
Issuer shall open and maintain the Note Account.
B. Deposits will be made to the Note Account from time to time by
or on behalf of the Issuer by delivery of
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funds to be deposited therein. All proceeds shall be credited
to the Note Account. Withdrawals or other uses of the funds
from the Note account shall be made in accordance with
instructions from an Issuer Agent or to repay amounts payable
under Sections 4.B. or 7.D. hereof. Notwithstanding anything
in this Agreement to the contrary, the IPA shall not be
obligated (i) to permit any withdrawal or other use of funds
from the Note Account, or (ii) to honor any instructions to
those effects, if the IPA, in its sole discretion, shall
determine that as a result there would be an overdraft or
negative balance in respect of final credits (whether in the
course of any day, overnight or otherwise) in the Note
Account.
7. Payment of Notes.
A. The IPA hereby agrees to serve as paying agent of the Issuer
with respect to each of the Notes presented for payment
pursuant to this Agreement. The Issuer shall on the Maturity
Date of such Notes, deposit or cause to be deposited in the
Note Account by 10:00 a.m. Chicago time an amount in
immediately available funds equal to the maturity amount of
such Notes, or if applicable, the principal plus interest
payable thereon.
B. The IPA is hereby authorized and instructed by the Issuer, to
the extent that funds sufficient to effect such payment are
available in the Note Account, to pay, and shall pay, each of
the Notes upon presentation thereof. The IPA is further hereby
authorized and instructed by the Issuer to debit the Note
Account in the amount of each such payment.
C. If at any time funds in the Note Account are insufficient to
cover payment of any matured Notes presented prior to 2:00
p.m. (Chicago time) on the Maturity Date of such Notes, the
IPA may, but shall not be obligated to, pay the Notes thus
creating an overdraft for the account of the Issuer, which
overdraft shall be charged to the Note Account.
D. The amount of any resulting overdraft shall represent an
Advance by the IPA to the Issuer to be promptly repaid by the
Issuer together with any applicable overdraft charges and
interest on such advance for
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each day such Advance remains outstanding in accordance with
Section 4.B.
8. Representations and Warranties.
Each day on which an Issuance Instruction is given to the IPA, the
Issuer shall be deemed to represent and warrant to the IPA that (a) the
issuance and delivery of the designated Notes will not violate any
state or federal securities law, (b) the Notes have been duly and
validly authorized by the Issuer and (c) the Notes, when issued and
delivered pursuant hereto, will constitute the legal, valid, and
binding obligations of the Issuer.
9. Concerning the IPA.
A. In acting with respect to the Notes, and generally in acting
under the provisions hereof, the IPA acts only as agent of
the Issuer to perform only such duties as are specifically
set forth herein and this Agreement shall not be construed to
subject the IPA to any implied covenants or obligations. No
provision of this Agreement shall be construed to impose upon
the IPA any trust, agency of, or fiduciary duty to DTC or any
beneficial owner of the Notes. The IPA may execute any of the
powers hereunder or perform any duties hereunder either
directly or by or through agents or affiliates. The IPA may
consult with legal counsel regarding matters arising under
this Agreement and shall not be liable for any action taken
in good faith in reliance upon the advice of such
counsel. The IPA or its affiliates in their individual or any
other capacity may become the owner or pledgee of Notes and
may transact business with the Issuer or its affiliates with
the same rights they would have if the IPA were not acting
hereunder. The IPA shall be under no liability for interest
on any moneys received by it hereunder and need not segregate
such moneys except as may be required by law. Except in the
case of the IPA's gross negligence or willful misconduct, it
shall not be liable to the Issuer for any action taken or
omitted and reasonably believed by the IPA to be authorized
or within the powers conferred upon it hereby. In no event
shall the IPA be liable for consequential, indirect or
special damages, even if it has been advised of the
possibility of such damages. The IPA shall also not be
liable for any action taken,
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or any failure to take any action in connection with this
Agreement or the services provided hereunder or otherwise to
fulfill its obligations in connection with this Agreement, in
the event and to the extent that the taking of such action or
such failure arises out of or is caused by mechanical
breakdown, computer or system failure or other failure of
equipment, failure or malfunctioning of any communications
media for whatever reason, or any other cause outside of the
control of the IPA, provided that it undertakes to use
commercially reasonable efforts to cure any such failure or
breakdown of its equipment. It is understood by the Issuer
that provision of services under this Agreement is dependent
upon the availability to the IPA and the Issuer of
telecommunication facilities provided by third party vendors
and that the IPA does not warrant or guarantee such
availability.
B. The Issuer shall indemnify and hold the Indemnified Persons
harmless from and against any and all costs, expenses, claims
or liabilities (including, without limitation, reasonable
legal fees and expenses) arising out of or connected with the
performance of each Indemnified Person's duties hereunder,
except for costs, expenses, claims or liabilities arising out
of the gross negligence or willful misconduct of an
Indemnified Person. Each Indemnified Person may rely and shall
be protected in acting upon any resolution, certificate,
opinion, instructions (whether oral or otherwise), receipt, or
other document reasonably believed by such Indemnified Person
to be (i) genuine and (ii) to have been signed or given by the
proper party or parities.
C. Fees for the IPA's services, and reimbursement of its expenses
hereunder shall be as mutually agreed upon in writing between
the IPA and the Issuer, which are initially set forth as
Exhibit G, and shall be payable by the Issuer in accordance
with such agreement.
D. Except as otherwise expressly provided herein, whenever, in
the administration of this Agreement, the IPA shall deem it
necessary that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed)
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may be deemed to be conclusively proved and established by a
certificate or written instructions of an Issuer Agent and
such certificate or written instructions shall be full
warranty to the IPA for any action taken, suffered, or omitted
under the provisions of this Agreement in reliance upon such
certificate or written instructions.
E. Any banking association or corporation into which the IPA may
be merged, converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which it shall be a party, shall succeed to
all its rights, obligations and immunities hereunder without
the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the
contrary notwithstanding.
F. The IPA's countersignature of a Note shall be for
authentication purposes only. The IPA shall have no liability
on any Notes. Except with respect to the IPA's own actions in
issuing and delivering Notes pursuant to Issuance
Instructions, it shall not be liable for the authorization,
validity or legality of any Notes delivered by it in
accordance with Issuance Instructions.
G. Nothing in this Agreement constitutes a commitment or
obligation of the IPA or its affiliates to extend any credit
to the Issuer, nor shall any course of dealing between the
Issuer and the IPA be deemed to be, or constitute, any such
commitment or obligation.
10. Miscellaneous.
A. The IPA or the Issuer may terminate this Agreement upon ten
(10) days' prior written notice to the other party; provided,
however, that to the extent there are then outstanding any
Notes, notwithstanding such termination they shall remain
valid obligations of the Issuer and shall continue to be
subject to the provisions of this Agreement. No termination of
this Agreement shall affect the rights and obligations of the
parties hereto with respect to transactions initiated prior to
such termination. In the event that the IPA shall give the
Issuer notice of termination, the Issuer shall not issue on or
after
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the date of such notice any Notes having a maturity in excess
of thirty (30) days.
B. No amendment or modification of this Agreement shall be
effective unless the same shall be in writing and signed by
both of the parties hereto. No waiver of, nor any consent to
any departure from, any provision of this Agreement shall be
effective unless signed by the party intended to be bound. No
such amendment, modification, waiver or consent shall
adversely affect the rights of any holder of Notes outstanding
at the time of such amendment, modification, waiver or
consent.
C. Any obligation under this Agreement or the Notes that falls on
a day that is not a Business Day shall be performed on the
next succeeding Business Day.
D. Neither party hereto may assign any of its rights or
obligations hereunder without the consent of the other party
hereto.
E. This Agreement may be executed in any number of counterparts
and by each party hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be
deemed to be an original and all of which counterparts taken
together shall constitute one and the same Agreement.
11. Notices.
Any notices, demands, instructions and other communications required or
permitted to be given or made upon either party shall be in writing and
shall be personally delivered or sent by first class mail, postage
prepaid (or telecopier, as permitted hereunder), and shall be effective
for purposes of this Agreement upon receipt by the intended recipient
thereof at the address designated by such recipient, or on the next
succeeding Business Day if received on other than a Business Day.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this paragraph (or with respect to
Issuance Instructions, as permitted hereunder), notices, demands,
instructions and other communications in writing shall be addressed as
indicated below:
If to the IPA: Bank One, National Association
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1 Bank Xxx Xxxxx
Xxxxx XX0-0000, 0XX-0
Xxxxxxx, XX 00000-0000
Attn: Commercial Paper Customer Service
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Issuer: Xxxxxx'x Operating Company, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxxx'x Operating Company, Inc.
0000 Xxxx Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
12. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAW OF THE STATE OF NEW YORK (EXCLUDING ITS CONFLICTS OF
LAWS RULES).
13. Entire Agreement.
This Agreement together with the Exhibits, constitute the entire
agreement between the IPA and the Issuer relating to the subject matter
hereof, and supersedes all proposals and all other communications
between the parties relating hereto.
14. Guarantee.
All fees, indemnities and obligations of the Issuer hereunder shall be
fully guaranteed by Xxxxxx'x Entertainment, Inc. as Guarantor.
Xxxxxx'x Operating Company, Inc., as Issuer
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By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
Xxxxxx'x Entertainment, Inc., as Guarantor
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
BANK ONE, National Association,
as Issuing and Paying Agent
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Account Representative
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CORPORATE COMMERICAL PAPER - MASTER NOTE
XXXXXX'X OPERATING COMPANY, INC. ("Issuer"), for value received, hereby
promises to pay to Cede & Co., as nominee of The Depository Trust Company, or to
registered assigns: (i) the principal amount, together with unpaid accrued
interest thereon, if any, on the maturity date of each obligation identified on
the records of Issuer (the "Underlying Records") as being evidenced by this
Master Note, which Underlying Records are maintained by BANK ONE, NA ("Paying
Agent"); (ii) interest on the principal amount of each such obligation that is
payable in installments, if any, on the due date of each installment, as
specified on the Underlying Records; and (iii) the principal amount of each such
obligation that is payable in installments, if any, on the due date of each
installment, as specified on the Underlying Records. Interest shall be
calculated at the rate and according to the calculation convention specified on
the Underlying Records. Payments shall be made by wire transfer to the
registered owner from Paying Agent without the necessity of presentation and
surrender of this Master Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS MASTER NOTE
SET FORTH ON THE REVERSE HEREOF.
This Master Note is a valid and binding obligation of Issuer.
Not Valid Unless Countersigned for Authentication by Paying Agent.
BANK ONE, NA, XXXXXX'X OPERATING COMPANY, INC.,
Paying Agent Issuer
By: /s/ XXXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
---------------------- -------------------------------
Xxxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Asst. Treasurer
Account Representative
XXXXXX'X ENTERTAINMENT, INC.,
Guarantor
By: /s/ XXXXX X. XXXXX
-------------------------------
Xxxxx X. Xxxxx, Asst. Treasurer
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At the request of the registered owner, Issuer shall promptly issue and deliver
one or more separate note certificates evidencing each obligation evidenced by
this Master Note. As of the date any such note certificate or certificates are
issued, the obligations which are evidenced thereby shall no longer be evidenced
by this Master Note.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
the Master Note and all rights thereunder, hereby irrevocably
----------
constituting and appointing attorney to transfer said
--------------
Master Note on the books of Issuer with full power of substitution in the
premises.
Dated: ----------------------------
(Signature)
Signature(s) Guaranteed: Notice: The signature on this
assignment must correspond
with the name as written upon
the face of this Master Note,
in every particular, without
alteration or enlargement or
any change whatsoever.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
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