1
Exhibit 1.1
S&C Draft of May 10, 1999
THE XXXXXXX XXXXX GROUP, INC.
$15,000,000,000
MEDIUM-TERM NOTES, SERIES B
DISTRIBUTION AGREEMENT
May __, 1999
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
The Xxxxxxx Xxxxx Group, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes, Series B
(the "Securities") in an amount having an aggregate initial offering price of up
to $15,000,000,000 and agrees with each of you (individually, an "Agent" and,
collectively, the "Agents") as set forth in this Agreement. Each of the terms
"the Agents", "such Agent", "any Agent", "an Agent", "each Agent", "the
Purchasing Agent" and "the Selling Agent", when used in this Agreement or in any
Terms Agreement (as defined below) or in the Annexes hereto, shall mean Xxxxxxx,
Xxxxx & Co. except at any time when more than one Agent is acting as such
hereunder, as contemplated in Section 10 hereof.
The Company acknowledges and agrees that Xxxxxxx, Xxxxx & Co. may use
the Prospectus (as defined below) in connection with offers and sales of the
Securities as contemplated in the Prospectus under the caption "Plan of
Distribution of the Notes -- Plan of Distribution for Market-Making Resales by
Affiliates" ("Secondary Market Transactions"). The Company further acknowledges
and agrees that Xxxxxxx, Xxxxx & Co. is under no obligation to effect any
Secondary Market Transactions and, if it does so, it may discontinue effecting
such transactions at any time without providing any notice to the Company. The
term "Agent", whenever used in this Agreement, shall include Xxxxxxx, Xxxxx &
Co., whether acting in its capacity as an Agent or acting in connection with a
Secondary Market Transaction, except as may be specifically provided otherwise
herein.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto or in
such other form as may be agreed by the parties to that particular agreement,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of any of the Agents to
purchase Securities as principal.
2
The Securities will be issued under an indenture, dated as of May __,
1999 (as it may be amended from time to time, the "Indenture"), between the
Company and The Bank of New York, as trustee (including any successor trustee
thereunder, the "Trustee"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
The Company succeeded to the business of The Xxxxxxx Xxxxx Group, L.P.,
a Delaware limited partnership ("Group"), in a series of transactions described
in the Prospectus under the caption "Certain Relationships and Related
Transactions -- Incorporation and Related Transactions -- Incorporation
Transactions". Those transactions, which are hereinafter referred to as the
"Incorporation Transactions", were consummated on May __, 1999. For purposes of
the representations and warranties set forth in Sections 1(d) and 1(p) hereof,
the conditions set forth in Section 6(e) hereof and the provisions of Annex III
hereof, references to the Company with respect to any time before the
consummation of the Incorporation Transactions shall be deemed to be references
to Group.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-1 (File No. 333-75321)
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to such
registration statement, have been declared effective by the Commission
in such form; no other document with respect to such registration
statement has been filed with the Commission (other than the
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the
"Act"), each in the form delivered to the Agents); and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Act, is hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including all exhibits thereto
but excluding Form T-1 and, if applicable, including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, in accordance with Section 4(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the registration statement, each as amended at the time such part of
the registration statement became effective, is hereinafter
collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, is hereinafter called the "Prospectus"; any supplement
to the Prospectus that sets forth only the terms of a particular issue
of the Securities and is filed in accordance with Section 4(a) hereof
is hereinafter called a "Pricing Supplement"; and any reference herein
to the Prospectus as amended or supplemented shall be deemed to refer
to and include the Prospectus as amended and supplemented (including by
the applicable Pricing Supplement) in relation to Securities to be sold
pursuant to this Agreement, in the form filed or transmitted for filing
with the Commission pursuant to Rule 424(b) under the Act and in
accordance with Section 4(a) hereof);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act of
2
3
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, and did 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, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act, and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by
any Agent expressly for use in the Prospectus as amended or supplemented
to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the partners' capital or capital stock, as
applicable, or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, partners' capital or
stockholders' equity, as applicable, or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement and any Terms Agreement, will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture, which will be substantially
in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms and the Securities of any
particular issuance of Securities will conform to the descriptions
thereof contained in the Prospectus as amended or supplemented to relate
to such issuance of Securities;
3
4
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or the By-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with
any court or governmental agency or body is required for the
solicitation of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Terms Agreement or the Indenture,
except such as have been, or will have been prior to the Commencement
Date (as defined in Section 3 hereof), obtained under the Act or the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the solicitation by such
Agent of offers to purchase Securities from the Company and with
purchases of Securities by such Agent as principal, as the case may be,
in each case in the manner contemplated hereby;
(i) Neither the Company nor any of subsidiaries is in violation
of its organizational documents or in default in the performance or
observance of any material obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(j) The statements set forth in the Prospectus under the caption
"Description of Notes We May Offer", insofar as they purport to
constitute a summary of the terms of the Securities, and under the
captions "United States Taxation" and "Plan of Distribution of Notes",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(k) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to each offering
and sale of the Securities, will not be an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of the
Company (other than such Securities) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount
of debt securities registered under the Registration Statement;
4
5
(n) The Company and its subsidiaries possess all concessions,
permits, licenses, consents, exemptions, franchises, authorizations,
orders, registrations, qualifications and other approvals issued by the
appropriate Federal, state and foreign governments, governmental or
regulatory authorities, self-regulatory organizations and all courts or
other tribunals, and are members in good standing of each Federal, state
or foreign exchange, board of trade, clearing house or association and
self-regulatory or similar organization necessary to conduct their
respective businesses as described in the Prospectus;
(o) The statements set forth in the Prospectus under the captions
"Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Risk Management --Operational and Year 2000 Risks --
Year 2000 Readiness Disclosure" and "Risk Factors -- Our Computer
Systems and Those of Third Parties May Not Achieve Year 2000 Readiness
-- Year 2000 Readiness Disclosure" accurately and fairly set forth the
current state of the Company's efforts to address the Year 2000 Problem
and the risks and costs relating to the Year 2000 Problem. The "Year
2000 Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, transmission or other utilization of
data or in the operation of mechanical or electrical systems of any kind
will not, in the case of dates or time periods occurring after December
31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000; and
(p) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent of
the Company, to use its reasonable efforts to solicit and receive offers
to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of 12 months
or more except pursuant to this Agreement or any Terms Agreement, or
except pursuant to a private placement not constituting a public
offering under the Act, except pursuant to an offering outside the
United States that is not subject to the registration requirements of
the Act or except in connection with a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities (other than in
Secondary Market Transactions). However, the Company reserves the right
to sell, and may solicit and accept offers to purchase, Securities
directly on its own behalf in transactions with persons other than
broker-dealers, and, in the case of any such sale not resulting from a
solicitation made by any Agent, no commission will be payable with
respect to such sale. These provisions shall not limit Section 4(f)
hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Xxxxx XX as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them
5
6
in the Administrative Procedure. The Company will furnish to the Trustee
a copy of the Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one business day in
New York City, after receipt of notice from the Company, the Agents will
suspend solicitation of offers to purchase Securities from the Company
until such time as the Company has advised the Agents that such
solicitation may be resumed. During such period, the Company shall not
be required to comply with the provisions of Sections 4(h), 4(i), 4(j)
and 4(k). Upon advising the Agents that such solicitation may be
resumed, however, the Company shall simultaneously provide the documents
required to be delivered by Sections 4(h), 4(i), 4(j) and 4(k), and the
Agents shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the Agents. In
addition, any failure by the Company to comply with its obligations
hereunder, including its obligations to deliver the documents required
by Sections 4(h), 4(i), 4(j) and 4(k), shall automatically terminate the
Agents' obligations hereunder, including its obligations to solicit
offers to purchase the Securities hereunder as agent or to purchase
Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the
time of settlement of any sale of a Security by the Company as a result
of a solicitation made by such Agent, in an amount equal to the
following applicable percentage of the principal amount of such Security
sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
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 .675%
From 20 years to less than 30 years .700%
6
7
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 30 years to less than 40 years .825%
40 years and more .900%
(b) Each sale of Securities by the Company to any Agent as
principal shall be made in accordance with the terms of this Agreement
and (unless the Company and such Agent shall otherwise agree) a Terms
Agreement which will provide for the sale of such Securities by the
Company to, and the purchase thereof by, such Agent; a Terms Agreement
may also specify certain provisions relating to the reoffering of such
Securities by such Agent; the commitment of any Agent to purchase
Securities as principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth; each Terms
Agreement shall specify the principal amount of Securities to be
purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and
default by, underwriters acting together with such Agent in the
reoffering of the Securities and the time and date and place of delivery
of and payment for such Securities; such Terms Agreement shall also
specify any requirements for opinions of counsel, accountants' letters
and officers' certificates pursuant to Section 4 hereof and such Terms
Agreement may also include such other provisions (including provisions
that modify this Agreement insofar as it sets forth the agreement
between the Company and such Agent) as the Company and such Agent may
agree upon. Each Agent proposes to offer Securities purchased by it as
principal from the Company for sale at prevailing market prices or
prices related thereto at the time of sale, which may be equal to,
greater than or less than the price at which such Securities are
purchased by such Agent from the Company.
For each sale of Securities by the Company to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural
details relating to the issue and delivery of such Securities and
payment therefor shall be as set forth in the Administrative Procedure.
For each such sale of Securities by the Company to an Agent as principal
that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as
provided in Section 2(a) hereof and in accordance with the schedule set
forth therein.
Each time and date of delivery of and payment for
Securities to be purchased from the Company by an Agent as principal,
whether set forth in a Terms Agreement or in accordance with the
Administrative Procedure, is referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, and whether acting as agent, as
principal under any Terms Agreement or otherwise (including, in the case
of Xxxxxxx, Xxxxx & Co., in any Secondary Market Transaction), not to
solicit offers to purchase or otherwise offer, sell or deliver such
Security, directly or indirectly, in, or to residents of, the country
issuing such currency, except as permitted by applicable law.
7
8
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agents at
the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
at 11:00 a.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof, (B) after the date of any Terms Agreement or other agreement by
an Agent to purchase Securities as principal and prior to the related
Time of Delivery which shall be disapproved by any Agent party to such
Terms Agreement or so purchasing as principal promptly after reasonable
notice thereof or (C) during the period beginning on the Commencement
Date and continuing for as long as may be required under applicable law,
in the reasonable judgment of Xxxxxxx, Xxxxx & Co. after consultation
with the Company, in order to offer and sell any Securities in Secondary
Market Transactions as contemplated by the Prospectus (the "Secondary
Transactions Period") which shall be disapproved by Xxxxxxx, Xxxxx & Co.
promptly after reasonable notice thereof;
(ii) to prepare, with respect to any Securities to be sold
by the Company through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used;
(iii) to make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing Supplement,
at any time prior to having afforded each Agent a reasonable opportunity
to review and comment thereon;
(iv) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities (including, in
the case of Xxxxxxx, Xxxxx & Co., in any Secondary Market Transactions
during the Secondary Transactions Period), and during such same period
to advise such Agent, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any Pricing Supplement
that relates to Securities not purchased through or by such Agent) has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amendment or
supplement of the Registration Statement or Prospectus or for additional
information; and
(v) in the event of the issuance of any such stop order or
of any such order preventing or suspending the use of any such
prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
8
9
It is understood and agreed that, if Form S-2 or S-3 under the Act is available
to the Company, the Company may amend the Registration Statement so as to be on
such form or may file a new registration statement on such form and have it
declared effective by the Commission, and thereafter any information required to
be included in the Registration Statement or the Prospectus may be incorporated
therein by reference as permitted by such form, provided that:
(W) If a new registration statement is filed, the Company
shall be deemed to have made the representations and warranties
in Sections 1(a), 1(b) and 1(c) hereof with respect to such new
registration statement as of its effective date, any preliminary
prospectus included therein, as of its date, and the prospectus
included therein in the form in which it is first filed pursuant
to Rule 424(b) under the Act, as of its date, and to have made
the agreements in Section 4(a)(i) hereof with respect to the
initial filing of such new registration statement, each filing of
a pre-effective amendment thereto and each filing of a related
prospectus pursuant to Rule 424(a) or (b) under the Act;
(X) if a new registration statement is filed and becomes
effective, any reference herein to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall thereafter
include, respectively, such new registration statement, any
preliminary prospectus included therein and the prospectus
included therein in the form first filed pursuant to Rule 424(b)
under the Act;
(Y) if a new registration statement is filed and becomes
effective, any reference in this Agreement to any Preliminary
Prospectus or the Prospectus shall thereafter be deemed to refer
to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and
(Z) if a new registration statement is filed and becomes
effective, any reference in this Agreement to any amendment to
the Registration Statement shall thereafter be deemed to refer to
and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement;
(b) Promptly from time to time to take such action as such
Agent may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as such Agent may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein for as long as may be necessary to complete
the distribution or sale of the Securities (including, in the case of
Xxxxxxx, Xxxxx & Co., in any Secondary Market Transactions during the
Secondary Transactions Period); provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) (i) To furnish such Agent with copies of the Registration
Statement and each amendment thereto and with copies of the Prospectus
as each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, all in such quantities as such Agent may reasonably request from
time to time;
(ii) if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as
principal and including, in the case of Xxxxxxx, Xxxxx & Co., in any
Secondary Market
9
10
Transactions during the Secondary Transactions Period) and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus in order to comply with the
Act or the Trust Indenture Act, to notify such Agent and request such
Agent, in its capacity as agent of the Company, to suspend solicitation
of offers to purchase Securities from the Company (and, if so notified,
such Agent shall cease such solicitations as soon as practicable, but in
any event not later than one business day later); and if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and to prepare and
cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or omission or
effect such compliance;
(iii) notwithstanding paragraph (ii) above, if during the
period specified in such paragraph such Agent continues to own
Securities purchased from the Company by such Agent as principal or such
Agent is otherwise required to deliver a prospectus in respect of
transactions in the Securities (including, in the case of Xxxxxxx, Xxxxx
& Co., in any Secondary Market Transactions during the Secondary
Transactions Period), the Company shall promptly prepare and file with
the Commission such an amendment or supplement and furnish without
charge to such Agent as many copies as it may from time to time during
such period reasonably request of such amendment or supplement;
provided, however, that the Company may elect, upon notice to Xxxxxxx,
Sachs & Co., not to comply with this paragraph (iii) with respect to any
Secondary Market Transaction, but only for a period or periods that the
Company reasonably determines are necessary in order to avoid premature
disclosure of material, non-public information, unless, notwithstanding
such election, such disclosure would otherwise be required under this
Agreement; and provided, further, that no such period or periods
described in the preceding proviso shall exceed 90 days in the aggregate
during any period of 12 consecutive calendar months. Upon receipt of any
such notice, Xxxxxxx, Xxxxx & Co. shall cease using the Prospectus or
any amendment or supplement thereto in connection with Secondary Market
Transactions until it receives notice from the Company that it may
resume using such document (or such document as it may be amended or
supplemented);
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158 under the Act);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders generally, and to deliver to such Agent (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to
the Commission);
10
11
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent, and (ii) the related Time of
Delivery, the Company will not, without the prior written consent of
such Agent, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which both mature more than 12 months
after such Time of Delivery and are substantially similar to the
Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase from the Company by such
Agent as principal not pursuant to a Terms Agreement), and each
execution and delivery by the Company of a Terms Agreement with such
Agent, shall be deemed to be an affirmation to such Agent that the
representations and warranties of the Company contained in or made
pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though
made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the
settlement date for the Securities relating to such acceptance or as of
the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), and each time the Company sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion or opinions by Xxxxxxxx &
Xxxxxxxx, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or opinions
referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent a written
opinion of one of the Company's General Counsel, Xxxxxx X. Xxxx, Esq. or
Xxxxxxx X. Xxxx, Esq., or other counsel for the Company satisfactory to
such Agent, dated the date of such amendment or supplement or the Time
of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on
the opinion of such counsel referred to in Section 6(c) hereof which was
last furnished to such Agent to the same extent as though it were dated
the date of such letter authorizing reliance (except that the statements
in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date)
or, in lieu of such opinion, an opinion of the same tenor as the opinion
of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented to set forth financial information
included in or derived from the Company's consolidated financial
statements or accounting records, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement and
such Terms Agreement
11
12
specifies the delivery of a letter under this Section 4(j) as a
condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall cause the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment or supplement or the Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(d)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of
the Company, to the extent such financial statements and other
information are available as of a date not more than five business days
prior to the date of such letter; provided, however, that, with respect
to any financial information or other matter, such letter may reconfirm
as true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section
6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
and each time the Company sells Securities to such Agent as principal
and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to such Agent a certificate, dated
the date of such supplement or amendment or the Time of Delivery
relating to such sale, as the case may be, in such form and executed by
such officers of the Company as shall be satisfactory to such Agent, to
the effect that the statements contained in the certificates referred to
in Section 6(i) hereof which was last furnished to such Agent are true
and correct at such date as though made at and as of such date (except
that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date),
or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(i) but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by such
Agent the right to refuse to purchase and pay for such Securities if, on
the related settlement date fixed pursuant to the Administrative
Procedure, any condition set forth in Section 6(a), 6(e), 6(f), 6(g) or
6(h) hereof shall not have been satisfied (it being understood that the
judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent
with respect to certain matters referred to in such Sections 6(e) and
6(g), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(e) and 6(g) on
behalf of any such person).
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Pricing Supplements and all other amendments and
supplements thereto and the mailing and delivering of copies thereof to
such Agent; (ii) the fees, disbursements and expenses of counsel for the
Agents in connection with the establishment of the program contemplated
hereby, any opinions to be rendered by such counsel hereunder and under
any Terms Agreement and the transactions contemplated hereunder and
under any Terms
12
13
Agreement; (iii) the cost of printing, producing or reproducing this
Agreement, any Terms Agreement, any Indenture, closing documents
(including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the
Securities; (iv) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Agents in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (v) any fees
charged by securities rating services for rating the Securities; (vi)
any filing fees incident to, and the fees and disbursements of counsel
for the Agents in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities (other than, in the case of Xxxxxxx, Xxxxx & Co., in any
Secondary Market Transactions); (vii) the cost of preparing the
Securities; (viii) the fees and expenses of any Trustee and any agent of
any Trustee and any transfer or paying agent of the Company and the fees
and disbursements of counsel for any Trustee or such agent in connection
with any Indenture and the Securities; (ix) any advertising expenses
connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved by
the Company; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in
Sections 7 and 8 hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities from the
Company and the obligation of any Agent to purchase Securities from the Company
as principal, pursuant to any Terms Agreement or otherwise, shall in each case
be subject, in such Agent's discretion, to the condition that all
representations and warranties and other statements of the Company herein (and,
in the case of an obligation of an Agent under a Terms Agreement, in or
incorporated by reference in such Terms Agreement) are true and correct at and
as of the Commencement Date and any applicable date referred to in Section 4(k)
hereof that is prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or Time of Delivery, as the case
may be; the condition that prior to such Solicitation Time or Time of Delivery,
as the case may be, the Company shall have performed all of its obligations
hereunder theretofore to be performed; and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing Supplement)
with respect to such Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof; (ii) no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of such Agent;
(b) Xxxxxxxx & Xxxxxxxx, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, to the effect that the matters set forth in the
Prospectus under the caption "United States Taxation", insofar as they
purport to describe the provisions of the laws referred to therein, are
accurate, complete and fair and with respect to the matters covered in
paragraphs (i), (ii), (iv), (v), (viii), (ix) and (x) of subsection (c)
below, as well as such other related matters as such Agent may
reasonably request, and (ii) if and to the extent requested by such
Agent, with respect to each applicable date referred to in Section 4(h)
hereof
13
14
that is on or prior to such Solicitation Time or Time of Delivery, as
the case may be, an opinion or opinions, dated such applicable date, to
the effect that such Agent may rely on the opinion or opinions which
were last furnished to such Agent pursuant to this Section 6(b) to the
same extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same
tenor as the opinion or opinions referred to in clause (i) but modified
to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date; and in each case such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Either Xxxxxx X. Xxxx, Esq. or Xxxxxxx X. Xxxx, Esq., each a
General Counsel of the Company, or other counsel for the Company
satisfactory to such Agent, shall have furnished to such Agent such
counsel's written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(iii) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject,
that is reasonably likely, individually or in the aggregate, to
have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries; and to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iv) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the Company;
(v) [USE THE FOLLOWING IF THE OPINION IS BEING DELIVERED
AT ANY TIME OF DELIVERY -- The Indenture has been duly
authorized, executed and delivered by the Company; the Securities
being delivered at such Time of Delivery have been duly
authorized, executed, authenticated, issued and delivered by the
Company; and the Indenture and such Securities constitute valid
and legally binding obligations of the Company enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; the Indenture and such Securities
conform to the descriptions thereof in the Prospectus as amended
or supplemented; and the Indenture has been duly qualified under
the Trust Indenture Act;]
[USE THE FOLLOWING IF THE OPINION IS NOT BEING DELIVERED
AT A TIME OF DELIVERY -- The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable in
accordance
14
15
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; the Series has been duly authorized
and established in conformity with the Indenture and, when the
terms of a particular Security and of its issuance and sale have
been duly authorized and established by all necessary corporate
action in conformity with the Indenture, and such Security has
been duly prepared, executed, authenticated and issued in
accordance with the Indenture and delivered against payment in
accordance with this Agreement, such Security will constitute a
valid and legally binding obligation of the Company enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
conforms to the description thereof in the Prospectus as amended
or supplemented and has been duly qualified under the Trust
Indenture Act;]
(vi) The issue and sale of the Securities by the Company,
the compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any applicable
Terms Agreement and the consummation by the Company of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is then a party or by which the Company is then bound or
to which any of the property or assets of the Company is then
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the By-laws of
the Company as then in effect or any statute, or any order, rule
or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties, in each case as then in effect; provided, however,
that for the purposes of this paragraph (vi), such counsel need
not express any opinion with respect to Federal or state
securities laws, fraudulent transfer laws, other antifraud laws
and the Employee Retirement Income Security Act of 1974, as
amended and related laws; and provided, further, that insofar as
the compliance by the Company with all the provisions of such
Securities, the Indenture, this Agreement and any applicable
Terms Agreement and the consummation of the transactions herein
and therein contemplated is concerned, such counsel need not
express any opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights (it being understood that, in the
case of any opinion to be delivered at a Time of Delivery, the
term "Securities" as used in this paragraph (vi) shall mean the
Securities to be delivered at such time);
(vii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States of America or
the State of New York is required for the issue and sale of the
Securities in accordance with this Agreement or the consummation
by the Company of the other transactions contemplated by this
Agreement, any applicable Terms Agreement, the Securities or the
Indenture, except the registration of the Securities under the
Act, and the qualification of the Securities under the Trust
Indenture Act, each of which has been obtained or made, and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the solicitation by the Agents of
offers to purchase Securities from the Company and in connection
with any offers and sales by an Agent of Securities purchased by
it as principal, in each case in the manner contemplated hereby
(it being understood that, in the case of any opinion to be
delivered at a Time of
15
16
Delivery, the term "Securities" as used in this paragraph (vii)
shall mean the Securities to be delivered at such time);
(viii) The statements set forth in the Prospectus, as
amended or supplemented, under the caption "Description of Notes
We May Offer", insofar as they purport to constitute a summary of
the terms of the Securities described therein, and under the
caption "Plan of Distribution of Notes", insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair (it being understood
that, in the case of any opinion to be delivered at a Time of
Delivery, the term "Securities" as used in this paragraph (viii)
shall mean the Securities to be delivered at such time);
(ix) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" as such term is defined in the Investment Company Act
(it being understood that, in the case of any opinion to be
delivered at a Time of Delivery, the term "Securities" as used in
this paragraph (ix) shall mean the Securities to be delivered at
such time); and
(x) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of such
opinion (other than the financial statements and related
schedules therein, other financial data therein derived from the
Company's accounting records and the statement of the eligibility
and qualification of the Trustee under the Indenture, as to which
such counsel need not express any opinion) comply as to form in
all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder;
although he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those
referred to in the opinion in paragraphs (ii) and (viii) of this
Section 6(c), he has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the date of such
opinion (other than the financial statements and related
schedules therein, other financial data therein derived from the
Company's accounting records and the statement of the eligibility
and qualification of the Trustee under the Indenture, as to which
such counsel need not express any opinion), contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date and as of the time
and date of delivery of such opinion, the Prospectus as then
amended or supplemented (other than the financial statements and
related schedules therein, other financial data therein derived
from the Company's accounting records and the statement of the
eligibility and qualification of the Trustee under the Indenture,
as to which such counsel need not express any opinion) contained
or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made,
not misleading; and such counsel does not know of any amendment
to the Registration Statement required to be filed or any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or described as
required;
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware; that, insofar as such opinion
16
17
involves factual matters, he has relied upon certificates of officers of
the Company and its subsidiaries and certificates of public officials
and other sources believed by such counsel to be responsible; that he
has assumed that the Indenture has been duly authorized, executed and
delivered by the Trustee, that any Securities then being delivered
conform to the forms thereof examined by him (or members of the
Company's legal department acting under his supervision), that the
Trustee's certificates of authentication of any Securities then being
delivered have been manually signed by one of the Trustee's authorized
signatories and that the signatures on all documents examined by him (or
members of the Company's legal department acting under his supervision)
are genuine (assumptions that he has not independently verified); and
that a judgment for money in an action based in any country denominated
in a foreign currency may not be enforced in such currency. In addition,
such counsel may state that he has examined, or has caused members of
the Company's legal department to examine, such corporate and
partnership records, certificates and other documents, and such
questions of law, as he has considered necessary or appropriate for the
purposes of such opinion. Furthermore, in any opinion to be delivered
otherwise than at a Time of Delivery, such counsel may also state that
he has assumed that, after his opinion is delivered, the authorization
of the Securities will not be modified or rescinded; there will not be
any change in law affecting the validity, legally binding character or
enforceability of the Securities or any other matters covered by such
opinion; the issue, sale, delivery and performance of the Securities by
the company will comply with applicable law and any applicable order
under a registration and will not result in any breach or violation of,
or any default under or conflict with, any agreement or instrument
binding on the Company; and the Securities will not include any
alternative or additional terms that are not specified in the forms of
Securities examined by him and that either would result in any conflict,
breach, violation or default of the kind described in paragraph (vi)
above or would require any consent, approval, authorization, order,
registration or qualification of the kind described in paragraph (vii)
above to be obtained or made;
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included in the Registration Statement shall have
furnished to such Agent a letter, dated the Commencement Date or such
applicable date, as the case may be, in form and substance satisfactory
to such Agent, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Prospectus as amended or supplemented prior to the date
of the Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior
to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery there shall not have been any
change in the partners' capital or capital stock, as applicable, or
long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, partners' capital or
stockholders' equity, as applicable, or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior
17
18
to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of such
Agent so material and adverse as to make it impracticable or inadvisable
to proceed with the solicitation by such Agent of offers to purchase
Securities from the Company or the purchase by such Agent of Securities
from the Company as principal, as the case may be, on the terms and in
the manner contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof or on any applicable Terms
Agreement (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof or on any applicable Terms
Agreement there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange;
(iii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the judgment
of such Agent makes it impracticable or inadvisable to proceed with the
solicitation of offers to purchase Securities or the purchase of the
Securities from the Company as principal pursuant to the applicable
Terms Agreement or otherwise, as the case may be, on the terms and in
the manner contemplated in the Prospectus;
(h) (i) With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security the principal or interest of which is indexed
to such currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange trading
in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency, currencies
or composite currency, the outbreak or escalation of hostilities
involving, the occurrence of any material adverse change in the existing
financial, political or economic conditions of, or the declaration of
war or a national emergency by, the country or countries issuing such
currency, currencies or composite currency or the imposition or proposal
of exchange controls by any governmental authority in the country or
countries issuing such currency, currencies or composite currency; and
(ii) with respect to any Security linked to the capital stock of an
issuer other than the Company, additional conditions comparable to those
set forth in Sections 6(e), 6(f) and 6(g) shall have been satisfied with
respect to such issuer (with such additional conditions being identical
to those in Sections 6(e), (f) and (g), except that, for this purpose,
all references to the Company in such sections shall be deemed to mean
such other issuer and, if the principal trading market for such other
issuer's capital stock is not the New York Stock Exchange, the reference
to the New York Stock Exchange in Section 6(g)(i) shall be deemed to
mean either the New York Stock Exchange or such principal trading market
and in Section 6(g)(ii) shall be deemed to mean only such principal
trading market), it being understood that nothing in this clause (ii)
shall limit or otherwise affect conditions in Sections 6(e), (f) and
(g), which shall apply in addition to any conditions applicable pursuant
to this clause (ii); and
18
19
(i) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in Section 4(k)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such officers
of the Company as shall be satisfactory to such Agent, as to the
accuracy of the representations and warranties of the Company herein at
and as of the Commencement Date or such applicable date, as the case may
be, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters set forth in
subsections (a) and (e) of this Section 6, and as to such other matters
as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such
Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or
any other prospectus relating to the Securities, or any such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect
19
20
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
under this Section 7 (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and each Agent on the other from the offering of the
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and each Agent on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent
on the other shall be deemed to be in the same proportion as the total
net proceeds from the sale of Securities (before deducting expenses)
received by the Company bear to the total commissions or discounts
received by such Agent from the Company in respect thereof. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one
hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Agent agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by per capita allocation (even if all
Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
20
21
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), an Agent shall
not be required to contribute any amount in excess of the amount by
which the total public offering price at which the Securities purchased
by or through it were sold exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of
each of the Agents under this subsection (d) to contribute are several
in proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to
any liability which such Agent may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. (a) The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect
21
22
to any Agent as to which such suspension or termination has not occurred, (ii)
this Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such suspension or termination (including all
Securities that may be the subject of a Secondary Market Transaction at any time
during the Secondary Transactions Period) and (z) in any event, this Agreement
shall remain in full force and effect insofar as the fourth paragraph of Section
2(a) and Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
(b) The Company, in its sole discretion, may appoint one or more
additional parties to act as Agents hereunder from time to time. Any such
appointment shall be made in a writing signed by the Company and the party so
appointed. Such appointment shall become effective in accordance with its terms
after the execution and delivery of such writing by the Company and such other
party. When such appointment is effective, such other party shall be deemed to
be one of the Agents referred to in, and to have the rights and obligations of
an Agent under, this Agreement, subject to the terms and conditions of such
appointment. The Company shall deliver a copy of such appointment to each other
Agent promptly after it becomes effective.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and shall be sufficient in all respects when delivered or sent by facsimile
transmission, personal delivery or registered mail to 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000, Attention: Credit
Department; if to any Agent other than Xxxxxxx, Xxxxx & Co., shall be sufficient
in all respects when delivered or sent by facsimile transmission if to Xxxxxxx,
Xxxxx & Co., or registered mail to the facsimile number or address provided by
such Agent to the Company in the document appointing such Agent as an Agent
under this Agreement; and if to the Company, shall be sufficient in all respects
when delivered or sent by facsimile transmission, personal delivery or
registered mail to 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile No.
(000) 000-0000, Attention: Treasury Department. Any such statements, requests,
notices or advices shall take effect upon receipt thereof.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company and, to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
22
23
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
23
24
If the foregoing is in accordance with your understanding, please sign
and return to us ........... counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and you in accordance with its terms.
Very truly yours,
The Xxxxxxx Xxxxx Group, Inc.
By:
--------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
--------------------------------------
(Xxxxxxx, Xxxxx & Co.)
24
25
ANNEX I
THE XXXXXXX XXXXX GROUP, INC.
$15,000,000,000
MEDIUM-TERM NOTES, SERIES B
TERMS AGREEMENT
, 1999
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
[INSERT NAMES OF ANY OTHER PURCHASERS]
Ladies and Gentlemen:
The Xxxxxxx Xxxxx Group, Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated
, 1999 (the "Distribution Agreement"), between the Company on the
one hand and Xxxxxxx, Xxxxx & Co. and any other party acting as Agent thereunder
on the other, to issue and sell to you the securities specified in the Schedule
hereto (the "Purchased Securities"). Each of the provisions of the Distribution
Agreement not specifically related to the solicitation by the Agents, as agents
of the Company, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase Securities
from the Company, solely by virtue of its execution of this Terms Agreement.
Each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you and you agree to purchase from the Company the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
-1-
26
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon acceptance hereof by
you this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Very truly yours,
The Xxxxxxx Xxxxx Group, Inc.
By:
------------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
------------------------------------
(Xxxxxxx, Xxxxx & Co.)
[Name(s) of other purchasers]
By:
------------------------------------
Name:
Title:
-2-
27
SCHEDULE TO ANNEX I
Title of Purchased Securities:
Medium-Term Notes, Series B
Aggregate Principal Amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by Xxxxxxx, Xxxxx & Co. [Name(s) of other purchasers]:
% of the principal amount of the Purchased Securities [,plus accrued
interest from to ] [and accrued amortization, if
any, from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next
day] [immediately available] funds]
Indenture:
Indenture, dated as of , 1999, between the Company
and The Bank of New York, as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %] [Zero Coupon] [Describe applicable floating rate provisions]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section
4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-1
28
ANNEX II
THE XXXXXXX XXXXX GROUP,INC.
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ......................, 1999 (the "Distribution
Agreement"), between The Xxxxxxx Xxxxx Group, Inc., a Delaware corporation (the
"Company") on the one hand and Xxxxxxx, Xxxxx & Co. and any other party acting
as Agent thereunder, on the other, to which this Administrative Procedure is
attached as Xxxxx XX. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement, the Prospectus
as amended or supplemented, the Indenture or the Securities. To the extent the
procedures set forth below conflict with the provisions of the Securities, the
Indenture or the Distribution Agreement, the relevant provisions of the
Securities, the Indenture and the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary"), and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security"), or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date of the Distribution Agreement, and a Medium-Term Note Certificate Agreement
between the Trustee and the Depositary, dated as of .................., 19..,
(the "Certificate Agreement"), and its obligations as a participant in the
Depositary, including the Depositary's Same-Day Funds Settlement System
("SDFS").
II-1
29
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency
(it being understood that currently the Depositary accepts deposits
of Global Securities denominated in U.S. dollars only);
(7) The Exchange Rate Agent and the Exchange Rate Determination Date, if
applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Book-Entry Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date,
II-2
30
(iv) Repayment date, and
(v) Repayment price;
(12) If an Original Issue Discount Book-Entry Security, the total amount
of Original Issue Discount, the yield to Maturity and the initial
accrual period of Original Issue Discount;
(13) If a Floating Rate Book-Entry Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Initial Interest Rate,
(viii) Interest Reset Dates,
(ix) Calculation Dates,
(x) Interest Determination Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
(14) Name, address and taxpayer identification number of the registered
Holder(s);
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Ratings Group (or such other entity that
assigns CUSIP numbers or any other identification designations being used for
the relevant Securities):
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
II-3
31
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number
of days by which such date succeeds the record date for the
Depositary's purposes (which in the case of Floating Rate Securities
which reset daily or weekly shall be the date five calendar days
immediately preceding the applicable Interest Payment Date and in
the case of all other Book-Entry Securities shall be the Regular
Record Date, as defined in the Security) and, if calculable at that
time, the amount of interest payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission or discount, as the case may be. The entry of such a deliver order
shall constitute a representation and warranty by the Trustee to the Depositary
that (a) the Global Security representing such Book-Entry Security has been
issued and authenticated and (b) the Trustee is holding such Global Security
pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at [NAME OF BANK], New York, New York, or such
other account as the Company may have previously specified to the Trustee, in
funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
X. Xxxx Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
II-4
32
Preparation of Prospectus or Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the business day following the Trade Date (as
defined below), or if the Company and the purchaser agree to settlement on the
business day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have the
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth business day (or second business day, if
such Book-Entry Security is to be sold pursuant to Rule 430A under the
Securities Act) following the date on which such Pricing Supplement is first
used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third business day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another business day which shall be no earlier
than the next business day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third business day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
SETTLEMENT
PROCEDURE UTIME
--------- -----
A 5:00 p.m. on the business day following the Trade Date or 10:00 a.m. on the
business day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the second business day immediately preceding the Settlement
Date
C 2:00 p.m. on the second business day immediately preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
II-5
33
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second business day
immediately preceding the 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 Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the business day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) 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 Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
II-6
34
Notwithstanding the foregoing, upon any failure to settle with respect to
a Book-Entry Security, the Depositary 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 one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D", for the authentication and issuance of
a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency;
(7) The Exchange Rate Agent and the Exchange Rate Determination Date, if
applicable;
(8) Issue Price;
II-7
35
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date,
(iv) Repayment date, and
(v) Repayment price;
(12) If an Original Issue Discount Certificated Security, the total
amount of Original Issue Discount, the yield to Maturity and the
initial accrual period of Original Issue Discount;
(13) If a Floating Rate Certificated Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Initial Interest Rate,
(viii) Interest Reset Dates,
(ix) Calculation Dates,
(x) Interest Determination Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
(14) Name, address and taxpayer identification number of the registered
owner(s);
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Selling Agent or Purchasing Agent.
Preparation of Prospectus or Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Prospectus Supplement or Pricing Supplement, as applicable,
reflecting the terms of such Certificated Security and arrange to have delivered
to the Selling Agent or Purchasing Agent, as the case may be, at least ten
copies of such Pricing Supplement, not later than 5:00 p.m., New York City time,
on the business day following the Trade Date, or if the Company and the
purchaser agree to settlement on the date of acceptance of such offer, not later
than noon, New York City time, on such date. The Company will arrange to have
the Pricing Supplement filed with the Commission not later than the close of
business
II-8
36
of the Commission on the fifth business day (or second business day, if such
Certificated Security is to be sold pursuant to Rule 430A under the Securities
Act) following the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement, as
applicable) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third business day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another business day after the acceptance of such offer or (b) with respect to
an offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New York City time,
on the business day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent,
the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated Securities to the Purchasing Agent against delivery of
payment for such Certificated Securities in immediately available funds to the
Company in an amount equal to the issue price of the Certificated Securities
less the Purchasing Agent's discount.
II-9
37
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-10
38
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Registration Statement or the Prospectus as most
recently amended or supplemented comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus as most recently amended or supplemented as indicated in their
reports thereon copies of which have been furnished to the Agents; and on
the basis of specified procedures including inquiries of officials of the
Company, who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in
all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
as most recently amended or supplemented agrees with the corresponding
amounts (after restatement where applicable) in the audited consolidated
financial statements for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d) respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements
III-1
39
and other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited financial statements included in the
Prospectus as amended or supplemented, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus as most recently amended or
supplemented do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus as most recently
amended or supplemented for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus as most recently amended or
supplemented do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial
statements included in the Prospectus as most recently amended or
supplemented;
(C) the unaudited financial statements which were not included
in the Prospectus as most recently amended or supplemented but from
which were derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus as most recently
amended or supplemented and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for
the audited financial statements included in the Prospectus as most
recently amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus as most recently amended or
supplemented do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included in the Prospectus as most recently
amended or supplemented) (or partners' capital as applicable) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case as
compared with amounts comparable shown in the latest balance sheet
included in the Prospectus as most recently amended or supplemented,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
III-2
40
(F) for the period from the date of the latest financial
statements included in the Prospectus as most recently amended or
supplemented to the specified date referred to in clause (E) there
were any decreases in consolidated total revenues or consolidated
revenues, net of interest expense, pre-tax earnings or total or per
share amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the Agents,
in each case as compared with the comparable items in the comparable
period of the preceding year and with any other period of
corresponding length specified by the Agents, except in each case
for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Agents which are derived from the general
accounting records of the Company and its subsidiaries which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Agents, and have compared certain
of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex III to the Prospectus shall be deemed to refer to
the Prospectus as defined in the Distribution Agreement as of the Commencement
Date referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented as of the date of the amendment, supplement or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-3
