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Exhibit 1.1
[Execution copy]
AMERCO
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
August 30, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Sirs:
AMERCO, a Nevada corporation (the "Company"), confirms its agreement with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of
America Securities LLC and X.X. Xxxxxx Securities Inc. (each, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes").
The Notes are to be issued pursuant to a Senior Indenture, dated as of April 1,
1999, as supplemented or amended from time to time (the "Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee"), as
supplemented by a Third Supplemental Indenture, to be dated as of August 30,
2001 (the "Third Supplemental Indenture") between the Company and the Trustee.
As of the date hereof, the Company has authorized the issuance and sale of up to
U.S. $350,000,000 aggregate initial offering price of Notes (or its equivalent,
based upon the exchange rate on the applicable trade date in such foreign or
composite currencies as the Company shall designate at the time of issuance) to
or through the Agents pursuant to the terms of this Agreement (or by the Company
directly to the purchasers thereof). It is understood, however, that the Company
may from time to time authorize the issuance of additional
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Notes and that such additional Notes may be sold to or through the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one
or more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes; provided, however, that nothing in this Agreement shall
prevent the Company from selling the Notes directly to investors and other
purchasers without the involvement of an Agent.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-48396) and
pre-effective amendment no. 1 thereto for the registration of debt securities,
including the Notes, under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to its acceptance of
any offer for the purchase of Notes and each such post-effective amendment has
been declared effective by the Commission. Such registration statement (as so
amended, if applicable) is referred to herein as the "Registration Statement";
and the final prospectus and all applicable amendments or supplements thereto
(including the final prospectus supplement and pricing supplement relating to
the offering of Notes), in the form first furnished to the applicable Agent(s)
for use in confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference (the "Incorporated Documents") pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to any
acceptance by the Company of an offer for the purchase of Notes; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the Registration Statement became effective and any
prospectus furnished by the Company after the Registration Statement became
effective and before any acceptance by the Company of an offer for the purchase
of Notes and all applicable amendments and supplements thereto which omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations. For purposes of
this Agreement, all references to the Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
As used in this Agreement, "Effective Date" means the date as of which the
Registration Statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission.
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained", "included" or "stated" (or
other references of like import) in the
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Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include the filing of any document
under the 1934 Act which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf or to other agents, without the use of, or payment of commission
to, any Agent, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents. To the extent that the Company appoints other agents to
act on its behalf, or to assist it, in the placement of the Notes, the Company
agrees that (i) it will promptly notify the Agents of such appointment and (ii)
such appointment will be made on terms (including terms with respect to fees and
commissions) substantially similar to the terms hereof.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company may accept or reject any offer for the purchase of Notes, in whole or in
part. Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been
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solicited by such Agent on an agency basis and accepted by the Company, the
Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii) pay to such
Agent any commission to which it would otherwise be entitled absent such
default.
(e) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal is referred to herein as a "Settlement Date"), and as of
any time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation and Foreign Qualification. Each of the
Company and its subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its organization, with full power and authority (corporate
and other) to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the
properties owned, leased or operated by it make such qualification
necessary, except where the failure so to qualify would not have a
material adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"); and none of
the subsidiaries of the Company, other than any so identified in Schedule
I to this Agreement, is a "significant subsidiary," as such term is
defined in Rule 405 of the 1933 Act Regulations.
(ii) Registration Statement and Prospectus; Incorporated Documents;
Indenture. The Company meets the requirements for the use of Form S-3
under the 1933 Act. The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement has
been issued; and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission. The Registration
Statement conformed, on the Effective Date or (with respect to
Incorporated Documents) on the date of filing thereof with the Commission,
in all material respects, to the requirements of the 1933 Act and the 1933
Act Regulations, and the Registration Statement on the Effective Date did
not contain and on each Representation Date and on the Settlement Date
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and on each Representation Date and on
the Settlement Date, included or will include an untrue
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statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, 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 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on the
Effective Date, the date hereof, the Settlement Date and each
Representation Date, the Indenture and the Third Supplemental Indenture
conformed and will conform, as applicable, in all material respects with
the requirements of the 1939 Act, and the applicable rules and regulations
thereunder; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Agent specifically for
inclusion therein (which information shall be determined as set forth in
Section 9(b) hereof) or that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the 1939 Act.
(iii) Accountants; Financial Statements. PricewaterhouseCoopers LLP,
whose report is incorporated by reference in the Prospectus, are
independent certified public accountants within the meaning of the 1933
Act and the 1933 Act Regulations. The financial statements and schedules
(including the related notes and supporting schedules) included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial condition, results of operations and changes
in financial condition of the entities purported to be shown thereby at
the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles.
(iv) Capital Stock. All of the issued shares of capital stock of
each significant subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable (except for the
shares of capital stock of Oxford Life Insurance Company and Republic
Western Insurance Company that are further assessable to the extent of
their respective par values in accordance with Article 14, Section 11 of
the Constitution of the State of Arizona) and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(v) Authorization and Validity of this Agreement. The Company has
all of the requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations provided for herein. This
Agreement has been duly authorized, executed and delivered by the Company
and constitutes the valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms.
(vi) Authorization and Validity of the Notes. The Company has all
of the requisite corporate power and authority to execute, issue and
deliver the Notes and to incur and perform its obligations provided for
therein; the Notes have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of this
Agreement, the Indenture and the Third Supplemental Indenture and
delivered to and
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paid for by the purchasers thereof as provided for in this Agreement, will
have been duly executed, authenticated (assuming due authentication by the
Trustee), issued and delivered and will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and the Third Supplemental Indenture and enforceable against the
Company in accordance with their terms; and the Notes will conform in all
material respects to the description thereof contained in the Prospectus.
(vii) Authorization and Validity of the Indenture and the Third
Supplemental Indenture. The Company has all of the requisite corporate
power and authority to execute and deliver the Indenture and the Third
Supplemental Indenture and to perform its obligations provided for
therein; the Indenture and the Third Supplemental Indenture have been duly
authorized by the Company and have been duly qualified under the 1939 Act,
will be substantially in the form heretofore delivered to the Agents and,
upon due execution and delivery by the Company, and assuming due execution
and delivery by the Trustee, will constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms; and the Indenture and the Third Supplemental Indenture
conform in all material respects to the descriptions thereof contained in
the Prospectus.
(viii) Material Changes. Except as described in or contemplated by
the Prospectus (exclusive of any amendment or supplement thereto), there
has not been any material adverse change in, or adverse development which
materially affects the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole, from the date as of which information is
given in the Prospectus.
(ix) No Defaults; Regulatory Approvals. Neither the Company 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 respective articles
or certificate of incorporation or by-laws, or any bond, debenture, note
or any other evidence of indebtedness or any indenture, mortgage, deed of
trust or other material agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them is bound,
or to which any of their properties is subject, where such violation or
default would have a Material Adverse Effect. The execution and delivery,
fulfillment and consummation of the transactions contemplated by this
Agreement, the Indenture, the Third Supplemental Indenture and the Notes
will not conflict with or constitute a breach of, or a default (with the
passage of time or the giving of notice or otherwise) under, or result in
the imposition of a lien on any properties of the Company or any of its
subsidiaries, or an acceleration of indebtedness pursuant to, the articles
or certificate of incorporation or by-laws of the Company or any of its
subsidiaries, or any bond, debenture, note or any other evidence of
indebtedness of any indenture, mortgage, deed of trust or other material
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them is bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
or any law, rule, administrative regulation, order or decree of any court
or any governmental agency or body having jurisdiction over the Company,
any of its subsidiaries or any of their respective properties. Except for
the orders of the Commission declaring the Registration Statement or
post-effective amendments thereto effective under the 1933 Act and permits
and similar authorizations required under the securities or "Blue Sky"
laws of certain jurisdictions, no
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consent, approval, authorization or order of any court, governmental
agency or body or financial institution is required in connection with the
consummation of the transactions contemplated by this Agreement, the
Indenture, the Third Supplemental Indenture and the Notes.
(x) Material Transactions. Subsequent to the respective dates as
of which information is given in the Registration Statement, any
preliminary prospectus and the Prospectus and prior to the date hereof,
neither the Company nor any of its subsidiaries has incurred or will have
incurred any liabilities or obligations for borrowed money, direct or
contingent, or entered into any transactions not in the ordinary course of
business which would have a Material Adverse Effect.
(xi) Property. The Company and each of its subsidiaries owns, or
has valid rights to use in the manner currently used or proposed to be
used, all items of real and personal property which are material and which
they reasonably believe are necessary to the business of the Company and
its subsidiaries taken as a whole (including without limitation all U-Haul
Centers, manufacturing facilities, assembly facilities and service centers
described or referred to in the Prospectus), free and clear of all liens,
encumbrances and claims which may materially interfere with the use
thereof or have a Material Adverse Effect.
(xii) Legal Proceedings; Contracts. Except as described in the
Prospectus (exclusive of any amendments), there is no litigation or
governmental proceeding to which the Company or any of its subsidiaries is
a party or to which any property of the Company or any of its subsidiaries
is subject or which is pending or, to the knowledge of the Company,
contemplated against the Company or any of its subsidiaries which might
result in a Material Adverse Effect; and there are no contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been filed as exhibits to the Registration Statement.
(xiii) Regulations. Neither the Company nor any of its subsidiaries
is in violation of any law, ordinance, governmental rule or regulation or
court decree to which it may be subject which might have a Material
Adverse Effect.
(xiv) Licenses. All licenses, permits or registrations required for
the business of the Company and each of its subsidiaries, as presently
conducted and proposed to be conducted, under any federal, state or local
laws, regulations or ordinances (including those related to consumer
protection, protection of the environment and regulation of franchising)
have been obtained or made, other than any such licenses, permits or
registrations, the failure of which to obtain or make, either individually
or in the aggregate, would not have a Material Adverse Effect, and each of
the Company and its subsidiaries is in compliance with all such licenses,
permits or registrations.
(xv) Environmental. Except as disclosed in the Prospectus
(exclusive of any amendments or supplements), the Company and its
subsidiaries comply in all material respects with all Environmental Laws
(as defined below), except to the extent that failure to comply with such
Environmental Laws could not have a Material Adverse Effect. Except as
disclosed in the Prospectus (exclusive of any amendments or supplements),
neither the
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Company nor any of its subsidiaries is the subject of any pending or
threatened federal, state or local investigation evaluating whether any
remedial action by the Company or any of its subsidiaries is needed to
respond to a release of any Hazardous Materials (as defined below) into
the environment, resulting from the Company's or any of its subsidiaries'
business properties or assets or is in contravention of any Environmental
Law that could have a Material Adverse Effect. Except as disclosed in the
Prospectus (exclusive of any amendments or supplements), neither the
Company nor any of its subsidiaries has received any notice or claim, nor
are there pending or threatened lawsuits against them, with respect to
violations of any Environmental Law or in connection with any release of
any Hazardous Material into the environment that, in the aggregate, if the
subject of any unfavorable decision, ruling or finding, could have a
Material Adverse Effect. As used herein, "Environmental Laws" means any
federal, state or local law, regulation, permit, rule or order of any
governmental authority, administrative body or court applicable to the
Company's or any of its subsidiaries' business operations or the ownership
or possession of any of their properties or assets relating to
environmental matters, and "Hazardous Materials" means those substances
that are regulated by or form the basis of liability under any
Environmental Laws.
(xvi) Registration Rights. There are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to include any securities owned or to be
owned by such person among the securities registered pursuant to the
Registration Statement, or, except as described in the Prospectus or in
Schedule II to this Agreement, to require the Company to file any other
registration under the 1933 Act (other than a registration statement on
Form S-8) with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities
in any securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act.
(xvii) Certain Relationships. No relationship, direct or indirect,
exists between or among the Company, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company, on the
other hand, which is required to be described in the Prospectus and which
is not so described.
(xviii) Investment Company Act. The Company is not required to be
registered, and is not regulated, as an "investment company" as such term
is defined under the Investment Company Act of 1940, as amended, and the
rules and regulations thereunder (collectively, the "Investment Company
Act").
(xix) Ratings. The Medium-Term Note Program under which the Notes
are issued (the "Program"), as well as the Notes, are or, as soon as
practicable following the date hereof, will be rated BBB by Fitch, Inc.,
Ba1 by Xxxxx'x Investors Service, Inc. and BBB by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., or such
other rating as to which the Company shall have most recently notified the
Agents pursuant to Section 4(a) hereof.
(b) Additional Certifications. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as
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agent shall be deemed a representation and warranty by the Company to such Agent
or Agents as to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company by the
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes from
the Company by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the officers' certificate, opinion of counsel and
comfort letter pursuant to Sections 8(b), 8(c) and 8(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Notes from the Company as principal and one
or more of such Agents shall fail at the Settlement Date to purchase the Notes
which it or they are obligated to purchase (the "Defaulted Notes"), then the
nondefaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased
by all of such Agents on the Settlement Date, the nondefaulting Agents
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of Notes to be so purchased by all
of such Agents on the Settlement Date, such agreement shall terminate
without liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the
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Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
shall be substantially in the form of the guidelines set forth in Exhibit B
hereto. The Agents and the Company agree to perform, and the Company agrees to
cause the Trustee to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures. Exhibit B may
only be amended by written agreement of all the parties hereto.
SECTION 4. Covenants of the Company.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the time when the Registration Statement or any amendment
thereto becomes effective or promptly after the filing of any supplement or
amendment to the preliminary prospectus or the Prospectus (other than any
Incorporated Document or any amendment or supplement relating to an offering of
securities other than the Notes); (ii) of the transmittal to the Commission for
filing of any supplement to the preliminary prospectus or the Prospectus
relating to the Notes or any document to be filed pursuant to the 1934 Act which
will be incorporated by reference in the Prospectus; (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement, the
preliminary prospectus or the Prospectus; (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
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to any preliminary prospectus or the Prospectus relating to the Notes or for
additional information; (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (vi) of any downgrading in the rating accorded
the Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the Company,
by any "nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the 1933 Act
Regulations, or of any public announcement that any such organization has under
surveillance or review, with possible negative implications, its rating of the
Program, the Notes or any of the Company's debt securities promptly after the
Company learns of such downgrading, proposal to downgrade or public
announcement; and (vii) of the receipt by the Company of any notification with
respect to the suspension of qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order or notice of suspension of qualification and, if issued, to
obtain the lifting thereof as soon as possible.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
advance notice of its intention to file or prepare any additional registration
statement with respect to the Notes, any amendment to the Registration Statement
or any amendment or supplement to the preliminary prospectus or the Prospectus
relating to the Notes, whether by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise, and will furnish the Agents with copies of any
such amendment or supplement or other documents proposed to be filed or used a
reasonable time in advance of such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or other documents in a form
to which the Agents or counsel for the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to each Agent as many signed and conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents filed pursuant to the 1934 Act and incorporated by reference in the
preliminary prospectus and the Prospectus) as such Agent may reasonably request.
The Company will furnish to each Agent as many copies of the Prospectus (as
amended or supplemented) as such Agent shall reasonably request so long as such
Agent is required to deliver the Prospectus in connection with sales or
solicitations of offers to purchase the Notes. The Registration Statement, the
Prospectus and any amendments or supplements thereto furnished to the Agents
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Filing of Amendments. The Company will file promptly with the
Commission any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may be required by the 1933 Act or in the
reasonable judgment of the Company or the Agents or that may be requested by the
Commission.
(e) Copies of Amendments. Prior to filing with the Commission any (i)
amendment to the Registration Statement or supplement to the Prospectus required
by the 1933 Act Regulations or (ii) Prospectus required pursuant to Rule 424
(other than any Incorporated Document or any amendment or supplement relating to
an offering of securities other than the Notes), the Company will furnish a copy
thereof to the Agents and counsel for the Agents.
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(f) Copies of Public Reports and Required Filings. For a period expiring
on the last date on which any Note sold pursuant to this Agreement is
outstanding, the Company will furnish to the Agents copies of all materials
furnished by the Company to its security holders (excluding proxy statements,
annual reports and any other such materials that are otherwise publicly
available).
(g) Revisions of Prospectus; Material Changes. Except as otherwise
provided in this subsection, if at any time when a prospectus is required to be
delivered in connection with sales of the Notes any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Agents or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the reasonable opinion of either such counsel,
to amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given by telephone, and confirmed in writing, to the
Agents and the Company will (i) subject to Section 4(b) hereof promptly amend or
supplement the Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements and (ii)
furnish to the Agents, without charge, such number of copies of such amendment
or supplement as the Agents may reasonably request.
(h) Earnings Statements. The Company will make generally available to
its security holders and the Agents as soon as practicable, but not later than
18 months after the date of each acceptance by the Company of an offer to
purchase Notes, an earnings statement of the Company and its subsidiaries
conforming with the requirements of Section 11(a) of the 1933 Act (including, at
the option of the Company, Rule 158 of the 1933 Act), covering each twelve month
period commencing after the later of (i) the Effective Date and (ii) the date of
the Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such acceptance.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with such Agents, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Agents may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided.
(j) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act within the prescribed time periods therefor.
(k) Restriction on Sale of Notes. Unless otherwise agreed upon between
one or more Agents acting as principal and the Company, between the date of the
agreement by such Agent(s)
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to purchase the related Notes from the Company and the Settlement Date with
respect thereto, the Company will not without the prior written consent of such
Agent(s), offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Notes that are to be sold pursuant to
such agreement or commercial paper, if any, in the ordinary course of business);
provided, however, that the foregoing covenant shall not apply to any sale and
leaseback financing with respect to rental trucks, trailers and related
equipment used by the Company in its operations.
(l) Investment Company Act. The Company will take such steps as shall be
necessary to ensure that neither the Company nor any subsidiary shall become an
"investment company" within the meaning of such term under the Investment
Company Act.
(m) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used.
(n) Use of Proceeds. The Company will use the net proceeds received by
it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(o) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of Section 4(g) hereof during any period from the
time (i) the Agents shall have suspended solicitation of offers for the purchase
of Notes in their capacity as agents pursuant to a request from the Company and
(ii) no Agent shall then hold any Notes purchased from the Company as principal,
as the case may be, until the time the Company shall determine that solicitation
of offers for the purchase of Notes should be resumed or an Agent shall
subsequently purchase Notes from the Company as principal.
SECTION 5. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from the Company
as principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through an Agent as
an agent of the Company, will be subject to the accuracy of the representations
and warranties on the part of the Company herein contained or contained in any
certificate of an officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance and observance by the
Company of its covenants and other obligations hereunder, and to the following
additional conditions precedent:
(a) Stop Order and Effectiveness. The Prospectus as amended or
supplemented with respect to the Notes shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and in accordance with Section 4(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof nor any order directed to any document incorporated by reference in
any Prospectus shall have been issued and no proceeding for that purpose shall
have been initiated or
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threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or any Prospectus or
otherwise shall have been complied with to the reasonable satisfaction of
counsel to the Agents. No order suspending the sale of the Notes in any
jurisdiction designated by the Agents pursuant to Section 4(i) hereof shall have
been issued, and no proceeding for that purpose shall have been initiated or
threatened.
(b) Statements Within Registration Statement or Prospectus. No Agent
shall have discovered and disclosed to the Company that the Registration
Statement or any Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the Agents, is
material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) Corporate Proceedings; Legal Matters. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement, the Indenture, the Third Supplemental Indenture, the Notes, the
Registration Statement and each Prospectus, and all other legal matters relating
to this Agreement, and the transactions contemplated hereby and thereby, shall
be satisfactory in all material respects to counsel for the Agents, and the
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion, addressed to the
Agents, of Xxxxx & Xxxxxx L.L.P., counsel for the Company, to the effect
that:
(a) each of the Company, Amerco Real Estate Company, a
Nevada corporation, and U-Haul International, Inc., a Nevada
corporation (the foregoing three companies, collectively, the
"Nevada Companies"), Oxford Life Insurance Company, an Arizona
corporation, and Republic Western Insurance Company, an Arizona
corporation, has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada
or the State of Arizona, as the case may be, with full corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus and to carry out
the transactions contemplated hereunder, and each of the Nevada
Companies (other than the Company) is duly qualified to do business
as a foreign corporation and is in good standing under the laws of
the State of Arizona;
(b) the Company's authorized, issued and outstanding capital
stock is as set forth in the Prospectus, except for repurchases of
the Company's common stock pursuant to the Company's Stock
Repurchase Program since the date of the information incorporated in
the Prospectus;
(c) each of the Indenture and the Third Supplemental
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the 1939 Act, and
(assuming, in reliance upon the opinion delivered pursuant to
Section 5(d)(3) hereof, that each of the Indenture and the
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Third Supplemental Indenture is a legal, valid and binding
instrument enforceable against all parties thereto under the laws of
New York) constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, except
that (a) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be
brought, and (c) the enforceability thereof is further subject to
the qualification that certain waivers, procedures, remedies, and
other provisions hereof may be unenforceable under, or limited by,
the law of the State of Arizona; however, such limitations do not,
in the opinion of such counsel, substantially prevent the practical
realization of the benefits intended thereof; and the Notes have
been duly authorized by the Company's Board of Directors and, when
authorized by the Company's Treasurer or Assistant Treasurer,
executed and authenticated in accordance with the provisions of this
Agreement, the Indenture and the Third Supplemental Indenture and
delivered to and paid for by the purchasers thereof, pursuant to
this Agreement, (assuming in reliance upon the opinion delivered
pursuant to Section 5(d)(3) hereof that each of the Notes is a
legal, valid and binding obligation enforceable against all parties
thereto under the laws of New York) will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and the Third Supplemental Indenture, except that (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (y) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought, and
(z) the enforceability thereof is further subject to the
qualification that certain waivers, procedures, remedies, and other
provisions thereof may be unenforceable under, or limited by, the
law of the State of Arizona; however, such limitations do not, in
the opinion of such counsel, substantially prevent the practical
realization of the benefits intended thereof;
(d) to the best knowledge of such counsel, there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required
(except for those exhibits which will be incorporated by reference
into the Prospectus by means of Form 8-K); and the statements
included or incorporated in the Prospectus describing any legal
proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
(e) the Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened, and
the Registration Statement
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and the Prospectus (other than with respect to financial statements
and other financial and statistical information, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act, the 1934
Act and the 1939 Act and the applicable rules and regulations
thereunder; and such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than with respect
to financial statements and other financial and statistical
information, as to which such counsel need express no opinion)
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus
(other than with respect to financial statements and other financial
and statistical information, as to which such counsel need express
no opinion) at its date or at the date hereof included or includes
any untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(f) this Agreement has been duly authorized, executed and
delivered by the Company;
(g) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except such as
have been obtained under the 1933 Act and the 1939 Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Notes by the
Agents and such other approvals (specified in such opinion) as have
been obtained;
(h) neither the execution and delivery of this Agreement,
the Indenture or the Third Supplemental Indenture or the issuance
and sale of the Notes nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or thereof, will (i) conflict with the articles or
certificate of incorporation or by-laws of the Company or any of its
subsidiaries or (ii) result in a breach or violation of or
constitute a default under any law or any bond, debenture, note or
any other evidence of indebtedness or any indenture, mortgage, deed
of trust or other material agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a
party or bound or violation of any judgment, order or decree known
to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries, except (with regard to clause (ii)) for
such breaches, violations or defaults as would not have a material
adverse effect on the condition (financial or other), results of
operations, assets, business or prospects of the Company and its
subsidiaries taken as a whole;
(i) each of the Indenture, the Third Supplemental Indenture
and the Notes in the form attached to the Third Supplemental
Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus;
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(j) an Arizona court and a Nevada court would give effect to
the choice of New York law in this Agreement, the Indenture, the
Third Supplemental Indenture and the Notes; and
(k) the Company is not, and is not directly or indirectly
controlled by, or acting on behalf of any person or entity which is,
an "investment company" within the meaning of the Investment Company
Act.
(l) the information in the Prospectus under "Certain United
States Federal Income Tax Considerations", to the extent that such
information constitutes matters of law, summaries of legal matters
or legal conclusions, has been reviewed by such counsel and is
correct in all material respects.
In rendering such opinion, such counsel may rely, (A) as to
matters involving the laws of the State of New York, upon the
opinion delivered pursuant to Section 5(d)(3) hereof and (B) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. Such
counsel may assume, for the purposes of such opinion and without
investigation, that the substantive laws of the State of New York do
not materially differ from the substantive laws of the State of
Arizona, and such counsel need express no opinion as to the laws of
New York or their applicability to the matters covered by such
opinion. References to the Prospectus in this Section 5(d)(1)
include any supplements thereto at the date hereof.
For purposes of the opinion rendered in paragraph (j) above to
the extent such opinion applies to questions of Nevada law, such
counsel may further assume information as to certain contacts
between the jurisdictions of New York and the transactions
contemplated by the Notes, the Indenture and the Third Supplemental
Indenture, including the following:
(i) substantial negotiations relating to such
transactions have taken place in the State of New York,
(ii) the Company is executing and delivering the Notes,
the Indenture and the Third Supplemental Indenture in New York
in connection with the restructuring of certain of its
indebtedness and for certain other lawful and authorized ends,
(iii) the Company's financial advisor, as well as the
external counsel representing the Agents in connection with
such transactions, have offices in the State of New York, and
negotiations in connection with such transactions have taken
place in certain of their offices, including such offices in
New York, and
(iv) the Agents are located or have offices in the
State of New York.
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(2) Opinion of General Counsel to the Company. The opinion,
addressed to the Agents, of Xxxx X. Xxxxxxxxxxx, Secretary and General
Counsel of the Company, to the effect that:
(a) each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or
conducts material business;
(b) all the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims,
liens or encumbrances;
(c) there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of
a character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit, which is not described
or filed as required; and the statements included or incorporated in
the Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize
such matters;
(d) neither the execution and delivery of this Agreement,
the Indenture or the Third Supplemental Indenture or the issuance
and sale of the Notes nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or thereof, will conflict with, result in a breach
or violation of or constitute a default under any law or the
articles or certificate of incorporation or by-laws of the Company
or any of its subsidiaries or any bond, debenture, note or any other
evidence of indebtedness of any indenture, mortgage, deed of trust
or other material agreement or instrument and to which the Company
or any of its subsidiaries is a party or bound or any judgment,
order or decree to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries; and
(e) to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus (other
than the financial statements and other financial information
contained therein as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the 1933 Act, the
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1934 Act and the 1939 Act and the applicable rules and regulations
thereunder; and such counsel has no reason to believe that at the
Effective Date the Registration Statement (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than the
financial statements and other financial information contained
therein, as to which such counsel need express no opinion) at its
date or at the date hereof included or includes any untrue statement
of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Opinion of Counsel to the Agents. The opinion, addressed to
the Agents, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the
Agents, with respect to the issuance and sale of the Notes, the Indenture,
the Third Supplemental Indenture, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(e) Officers' Certificate. On the date hereof, the Agents shall have
received a certificate of the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the date hereof,
to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that: (i) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto),
there has not been any material adverse change in the condition (financial or
other) results of operations, assets, business or prospects of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto); (ii) the other representations
and warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date
hereof and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the date
hereof; (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate; (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission; and (v) no order suspending
the sale of the Notes in any jurisdiction designated by the Agents has been
issued and, to their knowledge, no proceedings for that purpose have been
initiated or threatened.
(f) Comfort Letter. On the date hereof, the Company shall furnish
customary comfort letters addressed to the Agents, dated the date hereof, in
form and substance satisfactory to the Agents, from PricewaterhouseCoopers LLP,
independent public accountants, containing the statements and information of the
type ordinarily included in accountants' "comfort letters" to Agents with
respect to the financial statements and certain financial information relating
to the Company contained or incorporated by reference into the Registration
Statement and the Prospectus.
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(g) Changes Affecting the Notes. Subsequent to the date hereof or, if
earlier, dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any material change in the
capital stock or long-term debt of the Company and its subsidiaries, taken as a
whole, or (ii) any change in or affecting the condition (financial or other),
results of operations, assets, business or prospects of the Company and its
subsidiaries, taken as a whole, which in any case referred to in clause (i) or
(ii) above, in the judgment of the Agents, materially impairs the investment
quality of the Notes.
(h) Credit Downgrade. Subsequent to the date hereof, there shall not
have been any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 0000 Xxx) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(i) Other Documents. Prior to the date hereof, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement
shall not be in all material respects reasonably satisfactory in form and
substance to the Agents and counsel for the Agents, this Agreement and all
obligations of the Agents hereunder may be canceled at, or at any time prior to,
the date hereof by the Agents and any such termination shall be without
liability of any party to any other party, except that the covenant regarding
provision of an earnings statement set forth in Section 4(h) hereof, the
provisions concerning payment of expenses under Section 11 hereof, the indemnity
and contribution agreement set forth in Sections 9 and 10 hereof, the provisions
concerning the representations, warranties and agreements to survive delivery
pursuant to Section 12 hereof, the provisions relating to governing law set
forth in Section 16 hereof and the provisions set forth under "Parties" of
Section 15 hereof shall remain in effect.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Milbank, Tweed, Xxxxxx & XxXxxx LLP at 0 Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the date hereof.
SECTION 6. Reimbursement of Agents' Expenses.
If the sale of the Notes provided for herein is not consummated because
any condition to the obligations of the Agents set forth in Section 5 hereof is
not satisfied, because of any termination pursuant to Section 13 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Agents, the Company will reimburse the Agents
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severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Notes, including in
connection with this Agreement and with any investigation or preparation made by
them in respect of the marketing of the Notes or in contemplation of the
performance by them of their obligations hereunder.
SECTION 7. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of the Company shall
be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 8. Additional Covenants of the Company.
The Company further covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent(s) or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, 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 Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished to the Agent(s), forthwith a certificate dated
the date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(e) hereof which were last
furnished to the Agents are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to
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such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in Section 5(e) hereof, modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate; provided, however that
in the case of an amendment or supplement referred to in clause (i) above, if
the Company shall in good faith determine that it does not intend to be in the
market during the three months after the date of filing of any such amendment or
supplement, the Company may deliver to the Agents a notice, which shall be dated
the date of delivery thereof to the Agents, to such effect, in which event the
obligation of the Company pursuant to clause (i) above with respect to such
amendment or supplement shall be deemed suspended until the earlier of (x) such
time as the Company so notifies the Agents that it wishes to re-enter the market
and (y) the next such amendment or supplement of the Prospectus or the
Registration Statement (provided that this clause (y) shall not prevent the
Company from continuing to suspend its obligations under clause (i) above, in
accordance with the procedures provided in this Section 8(b), at the time of
such amendment or supplement).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agent(s) and to counsel to the
Agents (x) the written opinion of Xxxxx & Xxxxxx, L.L.P., counsel to the Company
and (y) the written opinion of Xxxx X. Xxxxxxxxxxx, Secretary and General
Counsel of the Company, or other counsel satisfactory to the Agent(s), dated the
date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form and substance satisfactory to the Agent(s), of the same tenor as
the opinions referred to in Sections 5(d)(1) and 5(d)(2), respectively, hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion
or, in lieu of such opinion, counsel last furnishing any such opinion to the
Agents shall furnish the Agent(s) with a letter substantially to the effect that
the Agent(s) may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance); provided, however that in the case of an amendment
or supplement referred to in clause (i) above, if the Company shall in good
faith determine that it does not intend to be in the market during the three
months after the date of filing of any such amendment or supplement, the Company
may deliver to the Agents a notice, which shall be dated the date of delivery
thereof to the Agents, to such effect, in which event the obligation of the
Company pursuant to clause (i) above with respect to such amendment or
supplement shall be deemed suspended until the earlier of (x) such time as the
Company so notifies the Agents that it wishes to re-enter the market and (y) the
next such amendment or supplement of the Prospectus or the Registration
Statement (provided that this clause (y) shall not prevent the Company from
continuing to suspend its obligations under clause (i) above, in accordance with
the procedures provided in this Section 8(c), at the time of such amendment or
supplement).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or
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offering of securities other than the Notes) or (ii) (if required in connection
with the purchase of Notes from the Company by one or more Agents as principal)
the Company sells Notes to one or more Agents as principal, the Company shall
cause PricewaterhouseCoopers LLP forthwith to furnish to the Agent(s) a letter,
dated the date of filing with the Commission or the date of effectiveness of
such amendment or supplement, as applicable, or the date of such sale, as the
case may be, in form satisfactory to the Agent(s), of the same tenor as the
letter referred to in Section 5(f) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letter; provided, however that in the case of an amendment or supplement
referred to in clause (i) above, if the Company shall in good faith determine
that it does not intend to be in the market during the three months after the
date of filing of any such amendment or supplement, the Company may deliver to
the Agents a notice, which shall be dated the date of delivery thereof to the
Agents, to such effect, in which event the obligation of the Company pursuant to
clause (i) above with respect to such amendment or supplement shall be deemed
suspended until the earlier of (x) such time as the Company so notifies the
Agents that it wishes to re-enter the market and (y) the next such amendment or
supplement of the Prospectus or the Registration Statement (provided that this
clause (y) shall not prevent the Company from continuing to suspend its
obligations under clause (i) above, in accordance with the procedures provided
in this Section 8(d), at the time of such amendment or supplement).
SECTION 9. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage or expense
whatsoever, joint or several, as incurred, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company through, by
or on behalf of any of the Agents expressly for use in the Registration
Statement, such preliminary prospectus or the Prospectus;
(ii) against any and all loss, liability, claim, damage or expense
whatsoever, joint or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever arising out of or based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the Company;
and
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(iii) against any and all expense whatsoever, joint or several, as
incurred (including the fees and disbursements of counsel chosen by the
Agents), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever arising
out of or based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under clause (i) or (ii) above;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus, the Registration Statement
or the Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Agent specifically for inclusion therein. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise have to any
Agent or to any controlling person of that Agent.
(b) Indemnification of Company. Each Agent, severally and not jointly,
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage or expense
described in the indemnity contained in Section 9(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), any preliminary prospectus (or any amendment or supplement thereto) or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company through, by or on
behalf of such Agent expressly for use in the Registration Statement (or any
amendment thereto), such preliminary prospectus (or any amendment or supplement
thereto) or the Prospectus (or any amendment or supplement thereto). The
foregoing indemnity agreement is in addition to any liability which any Agent
may otherwise have to the Company or any such director, officer or controlling
person.
(c) General. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 9(a) hereof, counsel to the indemnified
parties shall be selected by the applicable Agent(s) and, in the case of parties
indemnified pursuant to Section 9(b) hereof, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
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25
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 9 or Section 10 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
SECTION 10. Contribution.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 9 hereof is for any
reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions so that each Agent is responsible for that portion represented by
the percentage that the total commission or discount received by such Agent in
respect of the offering of Notes from which such loss, liability, claim, damage
and expense arise, to the date of such loss, liability, claim, damage and
expense bears to the total sales price of such Notes from the sale to or through
such Agent, and the Company is responsible for the balance; provided, however,
that (i) in no case shall an Agent be responsible for any amount in excess of
the commissions and discounts received by such Agent in connection with the
Notes from which such losses, liabilities, claims, damages and expenses arise
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Agent, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company. Each Agent's
obligation to contribute as provided in this Section 10 are several and not
joint.
SECTION 11. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto, any preliminary prospectus and the Prospectus and
any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry Notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any transfer agent or
registrar;
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(e) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents
in connection therewith and in connection with the preparation and
printing of any Blue Sky Survey and any Legal Investment Survey;
(f) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement, of any
preliminary prospectus, of the Prospectus and any amendments or
supplements thereto, and any documents incorporated by reference and the
delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the
Notes;
(g) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture, the Third Supplemental Indenture and
all amendments thereto;
(h) Any fees charged by rating agencies for the rating of the
Notes;
(i) The fees and expenses incurred in connection with the listing
of the Notes on any securities exchange;
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other identification
numbers for the Notes;
(m) The fees and expenses of any Depository (as defined in the
Indenture) and any nominees thereof in connection with the Notes; and
(n) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred
from time to time in connection with the transactions contemplated hereby.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
or any controlling person of an Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for the Notes.
SECTION 13. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any
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reason, at any time by either the Company or an Agent, as to itself, upon the
giving of 30 days' prior written notice of such termination to the other party
hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or indexed
to, one or more foreign or composite currencies, in the international financial
markets, or any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development or event involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of such
Agent(s), impracticable to market such Notes or enforce contracts for the sale
of such Notes, or (iii) trading in any securities of the Company has been
suspended or materially limited by the Commission or a national securities
exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or by the relevant authorities in the country or countries
of origin of any foreign or composite currency in which such Notes are
denominated and/or payable, or (v) the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt securities
(including the Notes) of the Company as of the date of such agreement shall have
been lowered or withdrawn since that date or if any such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Program or any such debt securities, or (vi) there shall have come
to the attention of such Agent(s) any facts that would cause such Agent(s) to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of such Notes, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time of such
delivery, not misleading.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commissions on Notes actually sold earned in accordance with
the third paragraph of Section 3(b) hereof, (ii) if at the time of termination
(a) any Agent shall own any Notes purchased by it from the Company as principal
or (b) an offer to purchase any of the Notes has been accepted by the Company
but the time of delivery to the purchaser or his agent of such Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 8 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 11 hereof, the indemnity and contribution agreements set forth in
Sections 9 and 10 hereof, and the provisions of Sections 12, 15 and 16 hereof
shall remain in effect.
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SECTION 14. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
AMERCO
0000 Xxxxxxxxx Xxx
Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Secretary and General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxx L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product Management
Telecopy No.: (000) 000-0000
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Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
Attention: MTN Desk
Telecopy No.: (000) 000-0000
With a copy to:
Xxxx Xxxxx
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telecopy: (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 14.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons, officers and directors referred to in
Sections 9 and 10 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER
THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF
APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW
YORK.
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SECTION 17. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 18. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
AMERCO
By: ______________________________________
Name: Xxxx X. Xxxxxxxxxxx
Title: Secretary and General Counsel
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:___________________________
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By:___________________________
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By:___________________________
Authorized Signatory
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Schedule I
List of Significant Subsidiaries pursuant to Section 2(a)(i)
Amerco Real Estate Company
Oxford Life Insurance Company
Republic Western Insurance Company
U-Haul International, Inc.
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Schedule II
List of Agreements to Register Notes
1. Share Repurchase and Registration Rights Agreement, dated as of March 1,
1992, among AMERCO, Xxxx X. Xxxxx and PAFRAN, INC.
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
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........................................ *
----------
* As agreed by the Agents and the Company.
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EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[] LIBOR Reuters Page:
[] LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[] Weekly Average
[] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
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Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 8(b) of the Distribution Agreement.
Legal Opinion pursuant to Section 8(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 8(d) of the Distribution Agreement.
C-2
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EXHIBIT B
AMERCO
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
(Dated as of August 30, 2001)
Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes")
are to be offered on a continuous basis by AMERCO, a Nevada corporation (the
"Company"), to or through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Banc of America Securities LLC and X.X. Xxxxxx Securities Inc. (each, an "Agent"
and, collectively, the "Agents") pursuant to a Distribution Agreement, dated
August 30, 2001 (the "Distribution Agreement"), by and among the Company and the
Agents. The Distribution Agreement provides both for the sale of Notes by the
Company to one or more of the Agents as principal for resale to investors and
other purchasers and for the sale of Notes by the Company directly to investors
(as may from time to time be agreed to by the Company and the related Agent or
Agents), in which case each such Agent will act as an agent of the Company in
soliciting purchases of Notes; provided, however, that nothing in the
Distribution Agreement shall prevent the Company from selling the Notes directly
to investors and other purchasers without the involvement of an Agent.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under a senior
Indenture, dated as of April 1, 1999 (the "Indenture"), between the Company and
The Bank of New York, as trustee (together with any successor in such capacity,
the "Trustee"), as supplemented by a Third Supplemental Indenture, to be dated
as of August 30, 2001 (the "Third Supplemental Indenture") between the Company
and the Trustee. The Company has filed a Registration Statement with the
Securities and Exchange Commission (the "Commission") registering debt
securities (which includes the Notes) (the "Registration Statement", which term
shall
1
38
include any additional registration statements filed in connection with the
Notes). The most recent base prospectus deemed part of the Registration
Statement, as supplemented with respect to the Notes, is herein referred to as
the "Prospectus". The most recent supplement to the Prospectus setting forth the
purchase price, interest rate or formula, maturity date and other terms of the
Notes (as applicable) is herein referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture, the Third Supplemental Indenture or
the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date
of its authentication by the Trustee.
Each Note shall also bear an original
issue date (each, an "Original Issue
Date"). The Original Issue Date shall
remain the same for all Notes
subsequently issued upon transfer,
exchange or substitution of an original
Note regardless of their dates of
authentication.
Maturities: Each Note will mature on a date nine
months or more from its Original Issue
Date (the "Stated Maturity Date")
selected by the investor or other
purchaser and agreed to by the Company.
Registration: Unless otherwise provided in the
applicable Pricing Supplement, Notes
will be issued only in fully registered
form.
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, the Notes
will be issued in denominations of
$1,000 and integral multiples thereof.
39
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the
applicable Pricing Supplement, Floating
Rate Notes will bear interest at a rate
or rates determined by reference to the
CD Rate, the CMT Rate, the Commercial
Paper Rate, the Eleventh District Cost
of Funds Rate, the Federal Funds Rate,
LIBOR, the Prime Rate, the Treasury
Rate, or such other interest rate basis
or formula as may be set forth in
applicable Pricing Supplement, or by
reference to two or more such rates, as
adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such
Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption
by the Company in accordance with the
terms of the Notes, which will be fixed
at the time of sale and set forth in the
applicable Pricing Supplement. If no
Redemption Date or Initial Redemption
Date is indicated with respect to a
Note, such Note will not be redeemable
prior to its Stated Maturity Date.
The Notes will be subject to repayment
at the option of the Holders thereof in
accordance with the terms of the Notes,
which will be fixed at the time of sale
and set forth in the applicable Pricing
Supplement. If no Optional Repayment
Date is indicated with respect to a
Note, such Note will not be repayable at
the option of the Holder prior to its
Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest
(including payments for partial periods)
will be calculated and paid on the basis
of a 360-day year of twelve 30-day
months.
The interest rate on each Floating Rate
Note will be calculated by reference to
the specified Interest Rate Basis or
Bases plus or minus the applicable
Spread, if any, and/or multiplied by the
applicable Spread Multiplier, if any.
Unless otherwise provided in the
applicable Pricing Supplement, interest
on each Floating Rate Note will be
calculated by multiplying its principal
amount by an accrued interest factor.
Such accrued interest factor is computed
by adding the interest factor calculated
for each day in the period for which
accrued interest is being calculated.
Unless otherwise provided in the
applicable
40
Pricing Supplement, the interest factor
for each such day is computed by
dividing the interest rate applicable to
such day by 360 if the CD Rate,
Commercial Paper Rate, Eleventh District
Cost of Funds Rate, Federal Funds Rate,
LIBOR or Prime Rate is an applicable
Interest Rate Basis, or by the actual
number of days in the year if the CMT
Rate or Treasury Rate is an applicable
Interest Rate Basis. As provided in the
applicable Pricing Supplement, the
interest factor for Notes for which the
interest rate is calculated with
reference to two or more Interest Rate
Bases will be calculated in each period
in the same manner as if only the
lowest, highest or average of the
applicable Interest Rate Bases applied.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless
otherwise provided in the applicable
Pricing Supplement, interest on each
Note will accrue from and including the
Original Issue Date of such Note for the
first interest period or from the most
recent Interest Payment Date (as defined
below) to which interest has been paid
or duly provided for all subsequent
interest periods to but excluding the
applicable Interest Payment Date or the
Stated Maturity Date or date of earlier
redemption or repayment, as the case may
be (the Stated Maturity Date or date of
earlier redemption or repayment is
referred to herein as the "Maturity
Date" with respect to the principal
repayable on such date).
If an Interest Payment Date or the
Maturity Date with respect to any Fixed
Rate Note falls on a day that is not a
Business Day (as defined below), the
required payment to be made on such day
need not be made on such day, but may be
made on the next succeeding Business Day
with the same force and effect as if
made on such day, and no interest shall
accrue on such payment for the period
from and after such day to the next
succeeding Business Day. If an Interest
Payment Date other than the Maturity
Date with respect to any Floating Rate
Note would otherwise fall on a day that
is not a Business Day, such Interest
Payment Date will be postponed to the
next succeeding Business Day, except
that in the case of a Note for which
LIBOR is an applicable Interest Rate
Basis, if such Business Day falls in the
next succeeding calendar month, such
Interest Payment Date will be the
immediately preceding Business Day. If
the Maturity Date with respect to any
Floating Rate Note falls on a day that
is not a Business Day, the required
41
payment to be made on such day need not
be made on such day, but may be made on
the next succeeding Business Day with
the same force and effect as if made on
such day, and no interest shall accrue
on such payment for the period from and
after the Maturity Date to the next
succeeding Business Day. Unless
otherwise provided in the applicable
Pricing Supplement, "Business Day" means
any day, other than a Saturday or
Sunday, that is neither a legal holiday
nor a day on which banking institutions
are authorized or required by law,
regulation or executive order to close
in The City of New York; provided,
however, that, with respect to Notes the
payment of which is to be made in a
currency other than U.S. dollars or
composite currencies (such currency or
composite currency in which a Note is
denominated is the "Specified
Currency"), such day is also not a day
on which banking institutions are
authorized or required by law,
regulation or executive order to close
in the Principal Financial Center (as
defined below) of the country issuing
such Specified Currency (or, in the case
of Euros, such day must also be a day on
which the Trans-European Automated
Real-Time Gross Settlement Express
Transfer (TARGET) System is open);
provided, further, that, with respect to
Notes for which LIBOR is an applicable
Interest Rate Basis, such day is also a
London Banking Day (as defined below).
"London Banking Day" means a day on
which commercial banks are open for
business (including dealings in the
LIBOR Currency (as defined below)) in
London. "LIBOR Currency" means the
currency or composite currency specified
in the applicable Pricing Supplement as
to which LIBOR will be calculated, it
being understood that if no such
currency or composite currency is
specified in the applicable Pricing
Supplement, the LIBOR Currency shall be
U.S. dollars. "Principal Financial
Center" means (i) the capital city of
the country issuing the Specified
Currency; or (ii) the capital city of
the country to which the LIBOR Currency
relates, except that with respect to
U.S. dollars, Australian dollars,
Canadian Dollars, Deutsche marks, Dutch
guilders, Italian lire, South African
rand and Swiss francs, the Principal
Financial Center shall be The City of
New York, Sydney and (solely in the case
of the Specified Currency) Melbourne,
Toronto, Frankfurt, Amsterdam, Milan,
Johannesburg and Zurich, respectively.
Regular Record Dates. Unless otherwise
provided in the applicable Pricing
Supplement, the "Regular Record Date"
42
for a Note shall be the date 15 calendar
days (whether or not a Business Day)
preceding the applicable Interest
Payment Date.
Interest Payment Dates. Interest
payments will be made on each Interest
Payment Date commencing with the first
Interest Payment Date following the
Original Issue Date; provided, however,
the first payment of interest on any
Note originally issued between a Regular
Record Date and an Interest Payment Date
will occur on the Interest Payment Date
following the next succeeding Regular
Record Date.
Unless otherwise provided in the
applicable Pricing Supplement, interest
payments on Fixed Rate Notes will be
made semiannually in arrears on January
15 and July 15 of each year and on the
Maturity Date, while interest payments
on Floating Rate Notes will be made as
specified in the applicable Pricing
Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the
Company, then such Agent acting solely
as agent for the Company and not as
principal will solicit purchases of the
Notes. Each Agent will communicate to
the Company, orally or in writing, each
reasonable offer to purchase Notes
solicited by such Agent on an agency
basis, other than those offers rejected
by such Agent. Each Agent has the right,
in its discretion reasonably exercised,
to reject any proposed purchase of
Notes, as a whole or in part, and any
such rejection shall not be a breach of
such Agent's agreement contained in the
Distribution Agreement. The Company has
the sole right to accept or reject any
proposed purchase of Notes, in whole or
in part, and any such rejection shall
not be a breach of the Company's
agreement contained in the Distribution
Agreement. Each Agent has agreed to make
reasonable efforts to assist the Company
in obtaining performance by each
purchaser whose offer to purchase Notes
has been solicited by such Agent and
accepted by the Company.
43
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the Company
will promptly prepare a Pricing
Supplement reflecting the terms of such
Note. Information to be included in the
Pricing Supplement shall include:
(i) the name of the Company;
(ii) the title of the Notes;
(iii) the date of the Pricing Supplement
and the date of the Prospectus to
which the Pricing Supplement
relates;
(iv) the name of the Offering Agent
(as defined below);
(v) whether such Notes are being
sold to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent for
the Company;
(vi) with respect to Notes sold to
the Offering Agent as principal,
whether such Notes will be resold
by the Offering Agent to investors
and other purchasers at (i) a
fixed public offering price of a
specified percentage of their
principal amount or (ii) at
varying prices related to
prevailing market prices at the
time of resale to be determined by
the Offering Agent;
(vii) with respect to Notes sold
to an investor or other purchaser
through the Offering Agent acting
as agent for the Company, whether
such Notes will be sold at (i)
100% of their principal amount or
(ii) a specified percentage of
their principal amount;
(viii) the Offering Agent's
discount or commission;
(ix) net proceeds to the Company;
(x) the Principal Amount,
Specified Currency, Original Issue
Date, Stated Maturity Date,
Interest Payment Date(s),
Authorized Denomination,
Redemption Date, Initial
Redemption Date, if any, Initial
Redemption Percentage, if any,
Annual Redemption Percentage
Reduction, if any, Optional
Repayment
44
Date(s), if any, Exchange Rate
Agent, if any, Default Rate, if
any, and, in the case of Fixed
Rate Notes, the Interest Rate, and
whether such Fixed Rate Note is an
Original Issue Discount Note (and,
if so, the Issue Price), and, in
the case of Floating Rate Notes,
the Interest Category, the
Interest Rate Basis or Bases, the
Day Count Convention, Index
Maturity (if applicable), Initial
Interest Rate, if any, Maximum
Interest Rate, if any, Minimum
Interest Rate, if any, Initial
Interest Reset Date, Interest
Reset Dates, Spread and/or Spread
Multiplier, if any, and
Calculation Agent; and
(xi) any other additional provisions of
the Notes material to investors or
other purchasers of the Notes not
otherwise specified in the
Prospectus.
The Company shall use its reasonable
best efforts to send such Pricing
Supplement by email, telecopy or
overnight express (for delivery by the
close of business on the applicable
trade date, but in no event later than
11:00 a.m. New York City time, on the
Business Day following the applicable
trade date) to the Agent which made or
presented the offer to purchase the
applicable Note (in such capacity, the
"Offering Agent") and the Trustee at the
following applicable address: if to
Xxxxxxx Xxxxx & Co., to: Xxxxxxx Xxxxx
Production Technologies, 00X Xxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: Prospectus Operations/
Xxxxxxx Xxxxxxxxx, (000) 000-0000,
telecopier: (000) 000-0000/5/6, email:
xxxxxxxx@xx0.xx.xx.xxx, if to Banc of
America Securities LLC, Bank of America
Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: MTN Desk, telecopier: (704)
388-9939, with a copy to Xxxx Xxxxx,
Banc of America Securities LLC, 0 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopier: (000) 000-0000; if to X.X.
Xxxxxx Securities Inc., to X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Desk,
telecopier: (000) 000-0000 and if to the
Trustee, to: 000 Xxxxx Xxxx Xxxx, Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000, Attention:
Xxxxxx Xxxxxxxxxx, (000) 000-0000,
telecopier: (000) 000-0000. For record
keeping purposes, one copy of such
Pricing Supplement shall also be mailed
or telecopied to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, 4 World
Financial Center, 15th Floor, New York,
New York,
45
10080, Attention: MTN Product
Management, (000) 000-0000, telecopier:
(000) 000-0000, with a copy to Milbank,
Tweed, Xxxxxx & XxXxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxxx,
III, Esq., (000) 000-0000, telecopier
(000) 000-0000.
In each instance that a Pricing
Supplement is prepared, the Offering
Agent will provide a copy of such
Pricing Supplement to each investor or
purchaser of the relevant Notes or its
agent. Pursuant to Rule 434 ("Rule 434")
of the Securities Act of 1933, as
amended, the Pricing Supplement may be
delivered separately from the
Prospectus. Outdated Pricing Supplements
(other than those retained for files)
will be destroyed.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Note and the authentication and delivery
of such Note shall, with respect to such
Note, constitute "settlement". Offers
accepted by the Company will be settled
in three Business Days, or at such time
as the purchaser, the applicable Agent
and the Company shall agree, pursuant to
the timetable for settlement set forth
in Parts II and III hereof under
"Settlement Procedure Timetable" with
respect to Global Notes and Certificated
Notes, respectively (each such date
fixed for settlement is hereinafter
referred to as a "Settlement Date"). If
procedures A and B of the applicable
Settlement Procedures with respect to a
particular offer are not completed on or
before the time set forth under the
applicable "Settlement Procedures
Timetable", such offer shall not be
settled until the Business Day following
the completion of settlement procedures
A and B or such later date as the
purchaser and the Company shall agree.
The foregoing settlement procedures may
be modified with respect to any purchase
of Notes by an Agent as principal if so
agreed by the Company and such Agent.
46
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to
change the interest rate or any other
variable term on any Notes being sold by
the Company, the Company will promptly
advise the Agents and the Trustee by
facsimile transmission and the Agents
will forthwith suspend solicitation of
offers to purchase such Notes. The
Agents will telephone the Company with
recommendations as to the changed
interest rates or other variable terms.
At such time as the Company notifies the
Agents and the Trustee of the new
interest rates or other variable terms,
the Agents may resume solicitation of
offers to purchase such Notes. Until
such time, only "indications of
interest" may be recorded. Immediately
after acceptance by the Company of an
offer to purchase Notes at a new
interest rate or new variable term, the
Company, the Offering Agent and the
Trustee shall follow the procedures set
forth under the applicable "Settlement
Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to
suspend solicitation of offers to
purchase Notes at any time. Upon receipt
of such instructions, the Agents will
forthwith suspend solicitation of offers
to purchase from the Company until such
time as the Company has advised the
Agents that solicitation of offers to
purchase may be resumed. If the Company
decides to amend or supplement the
Registration Statement or the Prospectus
(other than to establish or change
interest rates or formulas, maturities,
prices or other similar variable terms
with respect to the Notes), it will
promptly advise the Agents and will
furnish the Agents and their counsel
with copies of the proposed amendment or
supplement. Copies of such amendment or
supplement will be delivered or mailed
to the Agents, their counsel and the
Trustee in quantities which such parties
may reasonably request at the following
respective addresses: Xxxxxxx Xxxxx &
Co., 4 World Financial Center, 15th
Floor, New York, New York 10080,
Attention: MTN Product Management, (212)
449-7476, telecopier: (000) 000-0000; if
to Banc of America Securities LLC, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: MTN Desk,
telecopier: (000) 000-0000, with a copy
to Xxxx Xxxxx, Banc of America
Securities LLC, 0 Xxxx 00xx
00
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopier: (000) 000-0000; if to X.X.
Xxxxxx Securities Inc., to X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Desk,
telecopier: (000) 000-0000; and if to
the Trustee, to: 000 Xxxxx Xxxx Xxxx,
Xxxx Xxxxxxxx, Xxx Xxxxxx, 00000
Attention: Xxxxxx Xxxxxxxxxx, (973)
247-4364, telecopier: (000) 000-0000.
For record keeping purposes, one copy of
each such amendment or supplement shall
also be mailed or telecopied to Milbank,
Tweed, Xxxxxx & XxXxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxxx,
III, Esq., (000) 000-0000, telecopier:
(000) 000-0000.
In the event that at the time the
solicitation of offers to purchase from
the Company is suspended (other than to
establish or change interest rates or
formulas, maturities, prices or other
similar variable terms with respect to
the Notes) there shall be any offers to
purchase Notes that have been accepted
by the Company which have not been
settled, the Company will promptly
advise the Offering Agent and the
Trustee whether such offers may be
settled and whether copies of the
Prospectus as theretofore amended and/or
supplemented as in effect at the time of
the suspension may be delivered in
connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for
any arrangements which may be made in
the event that the Company determines
that such offers may not be settled or
that copies of such Prospectus may not
be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and
the applicable Pricing Supplement, which
pursuant to Rule 434 may be delivered
separately from the Prospectus, must
accompany or precede the earlier of (a)
the written confirmation of a sale sent
to an investor or other purchaser or its
agent and (b) the delivery of Notes to
an investor or other purchaser or its
agent.
Authenticity of
Signatures: The Agents will have no obligation or
liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or
agent of the Company or the Trustee on
any Note.
48
Documents Incorporated
by Reference: The Company shall supply the Agents with
an adequate supply of all documents
incorporated by reference in the
Registration Statement and the
Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC, dated August 30, 2001, and a
Certificate Agreement, dated August 17, 1987, between the Trustee and DTC, as
amended (the "Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in
book-entry form having the same Original
Issue Date, Specified Currency, Interest
Rate, Default Rate, Interest Payment
Dates, redemption and/or repayment
terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms")
will be represented initially by a
single Global Note; and all Floating
Rate Notes issued in book-entry form
having the same Original Issue Date,
Specified Currency, Interest Category,
formula for the calculation of interest
(including the Interest Rate Basis or
Bases, which may be the CD Rate, the CMT
Rate, the Commercial Paper Rate, the
Eleventh District Cost of Funds Rate,
the Federal Funds Rate, LIBOR, the Prime
Rate or the Treasury Rate or any other
interest rate basis or formula, and
Spread and/or Spread Multiplier, if
any), Day Count Convention, Initial
Interest Rate, Default Rate, Index
Maturity (if applicable), Minimum
Interest Rate, if any, Maximum Interest
Rate, if any, redemption and/or
repayment terms, if any, Interest
Payment Dates, Initial Interest Reset
Date, Interest Reset Dates and Stated
Maturity Date (collectively, the
"Floating Rate Terms") will be
represented initially by a single Global
Note.
For other variable terms with respect to
the Fixed Rate Notes and Floating Rate
Notes, see the Prospectus and the
applicable Pricing Supplement.
Owners of beneficial interests in Global
Notes will be entitled to physical
delivery of Certificated Notes equal in
49
principal amount to their respective
beneficial interests only upon certain
limited circumstances described in the
Prospectus.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of one series of
CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which
have been reserved for and relating to
Global Notes and the Company has
delivered to each of the Trustee and DTC
such list of such CUSIP numbers. The
Company will assign CUSIP numbers to
Global Notes as described below under
Settlement Procedure B. DTC will notify
the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has
assigned to Global Notes. The Trustee
will notify the Company at any time when
fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global
Notes, and, if it deems necessary, the
Company will reserve and obtain
additional CUSIP numbers for assignment
to Global Notes. Upon obtaining such
additional CUSIP numbers, the Company
will deliver a list of such additional
numbers to the Trustee and DTC. Notes
issued (if permitted pursuant to the
Program (as defined in the Distribution
Agreement)) in book-entry form in excess
of an amount specified by DTC (such
amount, currently $400,000,000 or the
equivalent thereof in one or more
foreign or composite currencies, the
"Specified Amount") and otherwise
required to be represented by the same
Global Note will instead be represented
by two or more Global Notes which shall
all be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each
Global Note will be registered in the
name of Cede & Co., as nominee for DTC,
on the register maintained by the
Trustee under the Indenture and the
Third Supplemental Indenture. The
beneficial owner of a Note issued in
book-entry form (i.e., an owner of a
beneficial interest in a Global Note)
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in
DTC (with respect to such Note issued in
book-entry form, the "Participants") to
act as agent for such beneficial owner
in connection with the book-entry system
maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in
book-entry form in the account of such
Participants. The ownership interest of
such beneficial owner in such Note
issued in book-entry
50
form will be recorded through the
records of such Participants or through
the separate records of such
Participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial ownership
interests in a Global Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferees
of such Global Note.
Exchanges: The Trustee may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP
numbers of two or more Global Notes
outstanding on such date that represent
Global Notes having the same Fixed Rate
Terms or Floating Rate Terms, as the
case may be (other than Original Issue
Dates), and for which interest has been
paid to the same date; (b) a date,
occurring at least 30 days after such
written notice is delivered and at least
30 days before the next Interest Payment
Date for the related Notes issued in
book-entry form, on which such Global
Notes shall be exchanged for a single
replacement Global Note; and (c) a new
CUSIP number, obtained from the Company,
to be assigned to such replacement
Global Note. Upon receipt of such a
notice, DTC will send to its
Participants (including 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 written
notice setting forth such exchange date
and the new CUSIP number and stating
that, as of such exchange date, the
CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On
the specified exchange date, the Trustee
will exchange such Global Notes for a
single Global Note bearing the new CUSIP
number and the CUSIP numbers of the
exchanged Notes will, in accordance with
CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the
Global Notes to be exchanged exceed the
Specified Amount, one replacement Note
will be authenticated and issued to
represent the Specified Amount of the
exchanged Global Notes and an additional
Global Note or Notes will be
authenticated and issued to represent
any remaining principal amount of such
Global Notes (See "Denominations"
below).
51
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, Notes
issued in book-entry form will be issued
in denominations of $1,000 and integral
multiples thereof. Global Notes will not
be denominated in excess of the
Specified Amount. If one or more Notes
are issued in book-entry form in excess
of the Specified Amount and would, but
for the preceding sentence, be
represented by a single Global Note,
then one Global Note will be issued to
represent each Specified Amount of such
Notes issued in book-entry form and an
additional Global Note or Notes will be
issued to represent any remaining
aggregate principal amount of such Note
or Notes issued in book-entry form. In
such a case, each of the Global Notes
representing Notes issued in book-entry
form shall be assigned the same CUSIP
number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly
after each Regular Record Date, the
Trustee will deliver to the Company and
DTC a written notice specifying by CUSIP
number the amount of interest to be paid
on each Global Note on the following
Interest Payment Date (other than an
Interest Payment Date coinciding with
the Maturity Date) and the total of such
amounts. DTC will confirm the amount
payable on each Global Note on such
Interest Payment Date by reference to
the daily bond reports published by
Standard & Poor's Corporation. On such
Interest Payment Date, the Company will
pay to the Trustee in immediately
available funds an amount sufficient to
pay the interest then due and owing on
the Global Notes, and upon receipt of
such funds from the Company, the Trustee
in turn will pay to DTC such total
amount of interest due on such Global
Notes (other than on the Maturity Date)
which is payable in U.S. dollars, at the
times and in the manner set forth below
under "Manner of Payment". The Trustee
shall make payment of that amount of
interest due and owing on any Global
Notes that Participants have elected to
receive in foreign or composite
currencies directly to such
Participants.
Notice of Interest Rates. Promptly after
each Interest Determination Date or
Calculation Date, as the case may be,
for Floating Rate Notes issued in
book-entry form, the Trustee will notify
each of Xxxxx'x Investors Service, Inc.
and Standard & Poor's Corporation of the
interest rates
52
determined as of such Interest
Determination Date.
Payments at Maturity. On or about the
first Business Day of each month, the
Trustee will deliver to the Company and
DTC a written list of principal,
premium, if any, and interest to be paid
on each Global Note maturing or
otherwise becoming due in the following
month. The Trustee, the Company and DTC
will confirm the amounts of such
principal, premium, if any, and interest
payments with respect to each such
Global Note on or about the fifth
Business Day preceding the Maturity Date
of such Global Note. On the Maturity
Date, the Company will pay to the
Trustee in immediately available funds
an amount sufficient to make the
required payments, and upon receipt of
such funds the Trustee in turn will pay
to DTC the principal amount of Global
Notes, together with premium, if any,
and interest due on the Maturity Date,
which are payable in U.S. dollars, at
the times and in the manner set forth
below under "Manner of Payment". The
Trustee shall make payment of the
principal, premium, if any, and interest
to be paid on the Maturity Date of each
Global Note that Participants have
elected to receive in foreign or
composite currencies directly to such
Participants. Promptly after (i) payment
to DTC of the principal, premium, if
any, and interest due on the Maturity
Date of such Global Note which are
payable in U.S. dollars and (ii) payment
of the principal, premium, if any, and
interest due on the Maturity Date of
such Global Note to those Participants
who have elected to receive such
payments in foreign or composite
currencies, the Trustee will cancel such
Global Note and deliver it to the
Company with an appropriate debit
advice. On the first Business Day of
each month, the Trustee will deliver to
the Company a written statement
indicating the total principal amount of
outstanding Global Notes as of the close
of business on the immediately preceding
Business Day.
Manner of Payment. The total amount of
any principal, premium, if any, and
interest due on Global Notes on any
Interest Payment Date or the Maturity
Date, as the case may be, which is
payable in U.S. dollars shall be paid by
the Company to the Trustee in funds
available for use by the Trustee no
later than 10:00 a.m., New York City
time, on such date. The Company will
make such payment on such Global Notes
to an account specified by the Trustee.
Upon receipt of such funds, the Trustee
will pay by
53
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 in U.S. dollars of
principal, premium, if any, and interest
due on Global Notes on such date.
Thereafter on such date, DTC will pay,
in accordance with its SDFS operating
procedures then in effect, such amounts
in funds available for immediate use to
the respective Participants in whose
names the beneficial interests in such
Global Notes 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 in U.S.
dollars by DTC of the principal of, or
premium, if any, or interest on, the
Global Notes. The Trustee shall make all
payments of principal, premium, if any,
and interest on each Global Note that
Participants have elected to receive in
foreign or composite currencies directly
to such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law to
be withheld from any interest payment on
a Global Note will be determined and
withheld by the Participant, indirect
participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial
owner of such Global Note.
Settlement
Procedures: Settlement Procedures with regard to
each Note in book-entry form sold by an
Agent, as agent of the Company, or
purchased by an Agent, as principal,
will be as follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile, of the following
settlement information:
1. Principal amount, Authorized
Denomination, and Specified
Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
54
(ii) Interest Payment
Dates.
(iii) Whether such Note
is being issued with
Original Issue
Discount and, if so,
the terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis
or Bases.
(iii) Initial Interest
Rate.
(iv) Spread and/or
Spread Multiplier,
if any.
(v) Initial Interest
Reset Date or
Interest Reset
Dates.
(vi) Interest Payment
Dates.
(vii)Index Maturity, if
any.
(viii) Maximum and/or
Minimum Interest
Rates, if any.
(ix) Day Count
Convention.
(x) Calculation
Agent.
4. Price to public, if any, of
such Note (or whether such
Note is being offered at
varying prices relating to
prevailing market prices at
time of resale as determined
by the Offering Agent).
5. Trade Date.
6. Settlement Date (Original
Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
55
10. Default Rate, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount
or commission.
13. Whether such Note is being
sold to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent
for the Company.
14. Such other information
specified with respect to such
Note (whether by Addendum or
otherwise).
The Company will assign a CUSIP number
to the Global Note representing
such Note and then advise the
Trustee by facsimile transmission
or other electronic transmission
of the above settlement
information received from the
Offering Agent, such CUSIP number
and the name of the Offering
Agent. The Company will also
advise the Offering Agent of the
CUSIP number assigned to the
Global Note.
The Trustee will communicate to DTC and
the Offering Agent through DTC's
Participant Terminal System a
pending deposit message
specifying the following
settlement information:
(xii) The information set forth in
the Settlement Procedure A.
(xiii) Identification numbers
of the participant accounts
maintained by DTC on behalf
of the Trustee and the
Offering Agent.
(xiv) Identification of the
Global Note as a Fixed Rate
Global Note or Floating Rate
Global Note.
(xv) Initial Interest Payment
Date for such Note, number of
days by which such date
succeeds the related record
date for DTC purposes (or, in
the case of Floating Rate
Notes which reset daily or
weekly, the date five
calendar days preceding the
Interest Payment Date) and,
if
56
then calculable, the amount
of interest payable on such
Interest Payment Date (which
amount shall have been
confirmed by the Trustee).
(xvi) CUSIP number of the Global
Note representing such Note.
(xvii) Whether such Global Note
represents any other Notes
issued or to be issued in
book-entry form.
DTC will arrange for each pending
deposit message described above to
be transmitted to Standard & Poor's
Corporation, which will use the
information in the message to
include certain terms of the
related Global Note in the
appropriate daily bond report
published by Standard & Poor's
Corporation.
The Trustee will complete and
authenticate the Global Note
representing such Note.
DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
The Trustee will enter an SDFS deliver
order through DTC's Participant
Terminal System instructing DTC (i)
to debit such Note to the Trustee's
participant account and credit such
Note to the participant account of
the Offering Agent maintained by
DTC and (ii) to debit the
settlement account of the Offering
Agent and credit the settlement
account of the Trustee maintained
by DTC, in an amount equal to the
price of such Note less such
Offering Agent's discount or
underwriting commission, as
applicable. Any entry of such a
deliver order shall be deemed to
constitute a representation and
warranty by the Trustee to DTC that
(i) the Global Note representing
such Note has been issued and
authenticated and (ii) the Trustee
is holding such Global Note
pursuant to the Certificate
Agreement.
In the case of Notes in book-entry
form sold through the Offering
Agent, as agent, the Offering Agent
will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit
such Note to the Offering Agent's
participant
57
account and credit such Note to the
participant account of the
Participants maintained by DTC and
(ii) to debit the settlement
accounts of such Participants and
credit the settlement account of
the Offering Agent maintained by
DTC in an amount equal to the
initial public offering price of
such Note.
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.
Upon receipt, the Trustee will pay
the Company, by wire transfer of
immediately available funds to an
account specified by the Company to
the Trustee from time to time, the
amount transferred to the Trustee
in accordance with Settlement
Procedure F.
The Trustee will send a copy of the
Global Note by first class mail to
the Company together with a
statement setting forth the
principal amount of Notes
Outstanding as of the related
Settlement Date after giving effect
to such transaction and all other
offers to purchase Notes of which
the Company has advised the Trustee
but which have not yet been
settled.
If such Note was sold through the
Offering Agent, as agent, the
Offering Agent will confirm the
purchase of such Note to the
investor or other purchaser either
by transmitting to the Participant
with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to
such investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by
the Company, Settlement Procedures A
through K set forth above shall be
completed as soon as possible following
the trade but not later than the
respective times (New York City time)
set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the trade date or within one hour following the trade
58
B 12:00 noon on the trade date or within one hour following the trade
C No later than the close of business on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement 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 Note issued in
book-entry form is rescheduled or
canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect by no later than 5:00 p.m., New
York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Note
issued in book-entry form 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 participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal
amount of the Global Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by
a Global Note, the Trustee will xxxx
such Global Note "canceled", make
appropriate entries in its records and
send certification of destruction of
such canceled Global Note to the
Company. The CUSIP number assigned to
such Global Note shall, in accordance
with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
If withdrawal messages are processed
with respect to a portion of the Notes
represented by a Global Note, the
Trustee will exchange such Global Note
for two Global Notes, one of which shall
represent the Global Notes for which
withdrawal messages are processed
59
and shall be canceled immediately after
issuance and the other of which shall
represent the other Notes previously
represented by the surrendered Global
Note and shall bear the CUSIP number of
the surrendered Global Note.
In the case of any Note in book-entry
form sold through the Offering Agent, as
agent, if the purchase price for any
such Note is not timely paid to the
Participants with respect thereto by the
beneficial investor or other purchaser
thereof (or a person, including an
indirect participant in DTC, acting on
behalf of such investor or other
purchaser), such Participants and, in
turn, the related Offering 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. If such failure
shall have occurred for any reason other
than default by the applicable Offering
Agent to perform its obligations
hereunder or under the Distribution
Agreement, the Company will reimburse
such Offering Agent on an equitable
basis for its reasonable loss of the use
of funds during the period when the
funds were credited to the account of
the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Note
in book-entry form, DTC may take any
actions in accordance with its SDFS
operating procedures then in effect. In
the event of a failure to settle with
respect to a Note that was to have been
represented by a Global Note also
representing other Notes, the Trustee
will provide, in accordance with
Settlement Procedure D, for the
authentication and issuance of a Global
Note representing such remaining Notes
and will make appropriate entries in its
records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, the
Certificated Notes will be issued in
denominations of $1,000 and integral
multiples thereof.
60
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the
Certificated Note, the Trustee upon
receipt of immediately available funds
from the Company will pay the principal
of, premium, if any, and interest on,
each Certificated Note on the Maturity
Date in immediately available funds. All
interest payments on a Certificated
Note, other than interest due on the
Maturity Date, will be made by check
mailed to the address of the person
entitled thereto as such address shall
appear in the Security Register;
provided, however, that Holders of
$10,000,000 or more in aggregate
principal amount of Certificated Notes
(whether having identical or different
terms and provisions) shall be entitled
to receive such interest payments by
wire transfer of immediately available
funds if appropriate wire transfer
instructions have been received in
writing by the Trustee not less than 15
calendar days prior to the applicable
Interest Payment Date.
The Trustee will provide monthly to the
Company a list of the principal,
premium, if any, and interest to be paid
on Certificated Notes maturing in the
next succeeding month. The Trustee will
be responsible for withholding taxes on
interest paid as required by applicable
law.
Certificated Notes presented to the
Trustee on the Maturity Date for payment
will be canceled by the Trustee. All
canceled Certificated Notes held by the
Trustee shall be destroyed, and the
Trustee shall furnish to the Company a
certificate with respect to such
destruction.
Settlement
Procedures: Settlement Procedures with regard to
each Certificated Note purchased by an
Agent, as principal, or through an
Agent, as agent, shall be as follows:
A. The Offering Agent will advise the
Company by telephone of the
following Settlement information
with regard to each Certificated
Note:
(xviii) Exact name in which the
Certificated Note(s) is
to be registered (the
"Registered Owner").
(xix) Exact address or
addresses of the
Registered Owner for
delivery, notices and
payments of principal,
premium, if any, and
interest.
61
(xx) Taxpayer identification
number of the Registered
Owner.
(xxi) Principal amount,
Authorized Denomination
and Specified Currency.
(xxii) Exchange Rate Agent, if
any.
(xxiii) (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest
Payment Dates.
(iii) Whether such
Note is being
issued with
Original Issue
Discount and,
if so, the
terms thereof.
(b) Floating Rate Notes:
(i) Interest
Category.
(ii) Interest Rate
Basis or Bases.
(iii)Initial
Interest Rate.
(iv) Spread and/or
Spread
Multiplier, if
any.
(v) Initial
Interest Reset
Date and
Interest Reset
Dates.
(vi) Interest
Payment Dates.
(vii) Index
Maturity, if
any.
(viii)Maximum and/or
Minimum
Interest
Rates, if any.
(ix) Day Count
Convention.
(x) Calculation
Agent.
(xxiv) Price to public of such
Certificated Note (or
62
whether such Note is
being offered at varying
prices relating to
prevailing market prices
at time of resale as
determined by the
Offering Agent).
(xxv) Trade Date.
(xxvi) Settlement Date (Original
Issue Date).
(xxvii) Stated Maturity Date.
(xxviii) Redemption provisions, if
any.
(xxix) Repayment provisions, if
any.
(xxx) Default Rate, if any.
(xxxi) Net proceeds to the
Company.
(xxxii) The Offering Agent's
discount or commission.
(xxxiii) Whether such Note is
being sold to the
Offering Agent as
principal or to an
investor or other
purchaser through the
Offering Agent acting as
agent for the Company.
(xxxiv) Such other information
specified with respect to
such Note (whether by
Addendum or otherwise).
B. After receiving such settlement
information from the Offering
Agent, the Company will advise the
Trustee of the above settlement
information by facsimile
transmission confirmed by
telephone. The Company will cause
the Trustee to issue, authenticate
and deliver the Certificated Note.
C. The Trustee will complete the
Certificated Note in the form
approved by the Company and the
Offering Agent, and will make three
copies thereof (herein called "Stub
1", "Stub 2" and "Stub 3") in a
packet containing the following
documents:
1. Certificated Note with the
Offering Agent's confirmation,
if traded on a principal
basis, or the Offering Agent's
customer confirmation, if
63
traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the
Trustee will deliver the
Certificated Note and Stub 2
thereof to the Offering Agent at
the following applicable address:
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Xxxxx
Money Markets Clearance, 00 Xxxxx
Xxxxxx, 0xx Xxxxx Xxxxx Xxxxx, XXX
Xxx Xxxx Window, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxx, (212)
855-2403, telecopier: (212)
855-2457; Banc of America
Securities LLC, x/x Xxx Xxxx xx Xxx
Xxxx, 0 Wall Street, 3rd Floor,
Dealer Clearance Window B, NMS A/C
014188, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxxxxx, (212)
635-7025, telecopier: (212)
635-7170; X.X. Xxxxxx Securities
Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium Term Note Desk,
telecopier: (000) 000-0000. and The
Trustee will keep Stub 1. The
Offering Agent will acknowledge
receipt of the Certificated Note
through a broker's receipt and will
keep Stub 2. Delivery of the
Certificated Note will be made only
against such acknowledgment of
receipt. Upon determination that
the Certificated Note has been
authorized, delivered and completed
as aforementioned, the Offering
Agent will wire the net proceeds of
the Certificated Note after
deduction of its applicable
commission to the Company pursuant
to standard wire instructions given
by the Company.
E. In the case of a Certificated Note
sold through the Offering Agent, as
agent, the Offering Agent will
deliver such Certificated Note
(with the confirmation) to the
purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the
Company.
64
Settlement
Procedures
Timetable: For offers to purchase Certificated
Notes accepted by the Company,
Settlement Procedures A through F set
forth above shall be completed as soon
as possible following the trade but not
later than the respective times (New
York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the trade date or within one hour following the trade
B 12:00 noon on the trade date or within one hour following the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold
through the Offering Agent, as agent, if
an investor or other purchaser of a
Certificated Note from the Company shall
either fail to accept delivery of or
make payment for such Certificated Note
on the date fixed for settlement, the
Offering Agent will forthwith notify the
Trustee and the Company by telephone,
confirmed in writing, and return such
Certificated Note to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering
Agent, will immediately advise the
Company and the Company will promptly
arrange to credit the account of the
Offering Agent in an amount of
immediately available funds equal to the
amount previously paid to the Company by
such Offering Agent in settlement for
such Certificated Note. Such credits
will be made on the Settlement Date if
possible, and in any event not later
than the Business Day following the
Settlement Date; provided that the
Company has received notice on the same
day. If such failure shall have occurred
for any reason other than failure by
such Offering Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an
equitable basis for its reasonable loss
of the use of funds during the period
when the funds were credited to the
account of the Company. Immediately upon
receipt of the Certificated Note in
respect of which the failure occurred,
65
the Trustee will cancel and destroy such
Certificated Note, make appropriate
entries in its records to reflect the
fact that such Certificated Note was
never issued, and accordingly notify in
writing the Company.
