Commercial Paper Dealer Agreement
Exhibit 10.1
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Commercial
Paper
Dealer
Agreement
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4(2)
Program - Domestic Issuer
Between:
NORFOLK SOUTHERN CORPORATION,
as Issuer, and
X.X. XXXXXX SECURITIES INC.,
as Dealer
Concerning
Notes to be issued pursuant to an Issuing and Paying Agency Agreement
dated as
of May 1, 1990, between the Issuer and JPMorgan Chase Bank. N.A.
(successor to Xxxxxx Guaranty Trust
Company of New York), as Issuing and Paying Agent
Dated
as of
January 23, 2008
4(2)
Program
This
agreement (the “Agreement”) sets forth the understandings
between the Issuer and the Dealer, each named on the cover page hereof,
in connection with the issuance and sale by the Issuer of its short-term
promissory notes (the “Notes”) through the Dealer.
Certain
terms used in this Agreement are defined in Section 6 hereof.
The
Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this
Agreement and made fully a part hereof.
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1.
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Offers,
Sales and Resales of Notes.
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1.1.
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While
(i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any
sale of the Notes for the account of the Issuer, and (ii) the
Dealer has and shall have no obligation to purchase the Notes
from the Issuer or to arrange any sale of the Notes for the
account of the Issuer, the parties hereto agree that in any
case where the Dealer purchases Notes from the Issuer, or
arranges for the sale of Notes by the Issuer, such Notes will
be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the
Issuer contained herein or made pursuant hereto and on the
terms and conditions and in the manner provided herein.
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1.2.
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So
long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer
shall not, without the consent of the Dealer, offer, solicit
or accept offers to purchase, or sell, any Notes except (a) in
transactions with one or more dealers which may from time to
time after the date hereof become dealers with respect to the
Notes by executing with the Issuer one or more agreements
which contain provisions substantially identical to those
contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b)
in transactions with the other dealers listed on the Addendum
hereto, which are executing agreements with the Issuer which
contain provisions substantially identical to Section 1 of
this Agreement contemporaneously herewith. In no
event shall the Issuer offer, solicit or accept offers to
purchase, or sell, any Notes directly on its own behalf in
transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
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1.3.
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The
Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such
interest rates, if interest bearing, or will be sold at such
discount from their face amounts, as shall be agreed upon by
the Dealer and the Issuer, shall have a maturity not exceeding
397 days from the date of issuance and may have such terms as
are specified in Exhibit C hereto or the Private Placement
Memorandum. The Notes shall not contain any provision for
extension, renewal or automatic “rollover.”
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1.4.
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The authentication and issuance of,
and payment for, the Notes shall be effected in accordance
with the Issuing and Paying Agency Agreement, and the Notes
shall be either individual physical certificates or book-entry
notes evidenced by one or more master notes (each, a “Master
Note”) registered in the name of The Depository Trust
Company (“DTC”) or its nominee.
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1.5.
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If
the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note
arranged by the Dealer (including, but not limited to,
agreement with respect to the date of issue, purchase price,
principal amount, maturity and interest rate or interest rate
index and margin (in the case of interest-bearing Notes) or
discount thereof (in the case of Notes issued on a discount
basis), and appropriate compensation for the Dealer’s
services hereunder) pursuant to this Agreement, the Issuer
shall cause such Note to be issued and delivered in accordance
with the terms of the Issuing and Paying Agency Agreement and
payment for such Note shall be made by the purchaser thereof,
either directly or through the Dealer, to the Issuing and
Paying Agent, for the account of the Issuer. Except
as otherwise agreed, in the event that the Dealer is acting as
an agent and a purchaser shall either fail to accept delivery
of or make payment for a Note on the date fixed for
settlement, the Dealer shall promptly notify the Issuer, and
if the Dealer has theretofore paid the Issuer for the Note,
the Issuer will promptly return such funds to the Dealer
against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case
of a book-entry Note. If such failure occurred for
any reason other than default by the Dealer, the Issuer agrees
to reimburse the Dealer on an equitable basis for the Dealer’s
loss of the use of such funds for the period such funds were
credited to the Issuer’s account.
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1.6.
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The
Dealer and the Issuer hereby establish and agree to observe
the following procedures, and only the following procedures,
in connection with offers, sales and subsequent resales or
other transfers of the Notes:
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(a)
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Offers
and sales of the Notes by or through the Dealer shall be made
only to: (i) investors reasonably believed by the Dealer to be
Qualified Institutional Buyers, Institutional Accredited
Investors or Sophisticated Individual Accredited Investors and
(ii) non-bank fiduciaries or agents that will be purchasing
Notes for one or more accounts, each of which is reasonably
believed by the Dealer to be an Institutional Accredited
Investor or Sophisticated Individual Accredited Investor.
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(b)
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Resales
and other transfers of the Notes by the holders thereof shall
be made only in accordance with the restrictions in the legend
described in clause (e) below.
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(c)
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No
general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without
limiting the generality of the foregoing, without the prior
written approval of the Dealer (not to be unreasonably
withheld or delayed), the Issuer shall not issue any press
release or place or publish any “tombstone” or
other advertisement relating to the Notes.
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(d)
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No
sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued
in a smaller principal or face amount. If the
purchaser is a non-bank fiduciary acting on behalf of others,
each person for whom such purchaser is acting must purchase at
least $250,000 principal or face amount of Notes.
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(e)
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Offers
and sales of the Notes by the Issuer through the Dealer acting
as agent for the Issuer shall be made in accordance with Rule
506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A
hereto. A legend substantially to the effect of
such Exhibit A shall appear as part of the Private Placement
Memorandum used in connection with offers and sales of Notes
hereunder, as well as on each individual certificate
representing a Note and each Master Note representing
book-entry Notes offered and sold pursuant to this Agreement.
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(f)
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The
Dealer shall furnish or shall have furnished to each purchaser
of Notes for which it has acted as the dealer a copy of the
then-current Private Placement Memorandum unless such
purchaser has previously received a copy of the Private
Placement Memorandum as then in effect. The Private
Placement Memorandum shall expressly state that any person to
whom Notes are offered shall have an opportunity to ask
questions of, and receive information from the Issuer and the
Dealer and shall provide the names, addresses and telephone
numbers of the persons from whom information regarding the
Issuer may be obtained.
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(g)
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The
Issuer agrees for the benefit of the Dealer and each of the
holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to
Section 13 or 15(d) of the Exchange Act, the Issuer will
furnish, upon request and at its expense, to the Dealer and to
holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule
144A(d).
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(h)
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In
the event that any Note offered or to be offered by the Dealer
would be ineligible for resale under Rule 144A, the Issuer
shall immediately notify the Dealer (by telephone, confirmed
in writing) of such fact and shall promptly prepare and
deliver to the Dealer an amendment or supplement to the
Private Placement Memorandum describing the Notes that are
ineligible, the reason for such ineligibility and any other
relevant information relating thereto.
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(i)
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The
Issuer represents that it is not currently issuing commercial
paper in the United States market in reliance upon the
exemption provided by Section 3(a)(3) of the Securities Act. The
Issuer agrees that, if it shall issue commercial paper after
the date hereof in reliance upon such exemption (a) the
proceeds from the sale of the Notes will be segregated from
the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will
institute appropriate corporate procedures to ensure that the
offers and sales of notes issued by the Issuer, as the case
may be, pursuant to the Section 3(a)(3) exemption are not
integrated with offerings and sales of Notes hereunder; and
(c) the Issuer will comply with each of the requirements of
Section 3(a)(3) of the Securities Act in selling commercial
paper or other short-term debt securities other than the Notes
in the United States.
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1.7.
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The
Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as
follows:
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(a)
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The
Issuer hereby confirms to the Dealer that (except as permitted
by Section 1.6(i)) within the preceding six months neither the
Issuer nor any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof acting on behalf of
the Issuer has offered or sold any Notes, or any substantially
similar security of the Issuer (including, without limitation,
medium-term notes issued by the Issuer), to, or solicited
offers to buy any such security from, any person other than
the Dealer or the other dealers referred to in Section 1.2
hereof. The Issuer also agrees that (except as
permitted by Section 1.6(i)), as long as the Notes are being
offered for sale by the Dealer and the other dealers referred
to in Section 1.2 hereof as contemplated hereby and until at
least six months after the offer of Notes hereunder has been
terminated, neither the Issuer nor any person other than the
Dealer or the other dealers referred to in Section 1.2 hereof
(except as contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the Issuer for
sale to, or solicit offers to buy any such security from, any
person other than the Dealer or the other dealers referred to
in Section 1.2 hereof, it being understood that such agreement
is made with a view to bringing the offer and sale of the
Notes within the exemption provided by Section 4(2) of the
Securities Act and Rule 506 thereunder and shall survive any
termination of this Agreement. The Issuer hereby
represents and warrants that it has not taken or omitted to
take, and will not take or omit to take, any action that would
cause the offering and sale of Notes hereunder to be
integrated with any other offering of securities, whether such
offering is made by the Issuer or some other party or parties.
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(b)
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The
Issuer represents and agrees that the proceeds of the sale of
the Notes are not currently contemplated to be used for the
purpose of buying, carrying or trading securities within the
meaning of Regulation T and the interpretations thereunder by
the Board of Governors of the Federal
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(b)
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Reserve
System. In the event that the Issuer determines
to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an
acquisition of another company or otherwise, the Issuer
shall give the Dealer at least five business days’
prior written notice to that effect. The Issuer
shall also give the Dealer prompt notice of the actual date
that it commences to purchase securities with the proceeds
of the Notes. Thereafter, in the event that the
Dealer purchases Notes as principal and does not resell such
Notes on the day of such purchase, to the extent necessary
to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes either (i) only
to offerees it reasonably believes to be Qualified
Institutional Buyers or to Qualified Institutional Buyers it
reasonably believes are acting for other Qualified
Institutional Buyers, in each case in accordance with Rule
144A or (ii) in a manner which would not cause a violation
of Regulation T and the interpretations thereunder.
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2.
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Representations
and Warranties of the Issuer.
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The
Issuer represents and warrants that:
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2.1
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The
Issuer is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and has all the requisite power and authority to
execute, deliver and perform its obligations under the Notes,
this Agreement and the Issuing and Paying Agency Agreement.
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2.2
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This
Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and
constitute legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, and subject, as
to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or
at law).
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2.3
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The
Notes have been duly authorized, and when issued as provided
in the Issuing and Paying Agency Agreement, will be duly and
validly issued and will constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights
generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
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2.4
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The
offer and sale of the Notes in the manner contemplated hereby
do not require registration of the Notes under the Securities
Act, pursuant to the exemption from registration contained in
Section 4(2) thereof, and no indenture in respect of the Notes
is required to be qualified under the Trust Indenture Act of
1939, as amended.
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2.5
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The
Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
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2.6
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No
consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including
the SEC, is required to authorize, or is otherwise required in
connection with the execution, delivery or performance of,
this Agreement, the Notes or the Issuing and Paying Agency
Agreement, except as may be required by the securities or Blue
Sky laws of the various states in connection with the offer
and sale of the Notes.
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2.7
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Neither
the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor
the fulfillment of or compliance with the terms and provisions
hereof or thereof by the Issuer, will (i) result in the
creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the
properties or assets of the Issuer, or (ii) violate or result
in a breach or a default under any of the terms of the Issuer’s
charter documents or by-laws, any contract or instrument to
which the Issuer is a party or by which it or its property is
bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which it
or its property is bound, which breach or default might have a
material adverse effect on the financial condition of the
Issuer or the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying
Agency Agreement.
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2.8
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There
is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the
Issuer or any of its subsidiaries which might result in a
material adverse change in the financial condition of the
Issuer or the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying
Agency Agreement.
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2.9
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The
Issuer is not an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.1
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2.10
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Neither
the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material
fact or omits to state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading.
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2.11
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Each
(a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement
Memorandum shall be deemed a representation and warranty
by the Issuer to the Dealer, as of the date thereof, that,
both before and after giving effect to such issuance and
after giving effect to such amendment or supplement, (i)
the representations and warranties given by the Issuer set
forth in this Section 2 remain true and correct on and as
of such date as if made on and as of such date, (ii) in
the case of an issuance of Notes, the Notes being issued
on such date have been duly and validly issued and
constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors’ rights
generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), (iii) in the
case of an issuance of Notes, since the date of the most
recent Private Placement Memorandum, there has been no
material adverse change in the financial condition of the
Issuer which has not been disclosed to the Dealer in
writing and (iv) the Issuer is not in default of any
of its obligations hereunder or under the Notes or the
Issuing and Paying Agency Agreement.
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1 The
phrase “or an entity controlled by an investment
company” is not included in this representation. See
the Bond Market Association Model Commercial Paper Dealer
Agreement (the “BMA Model”) Guidance
Note to Section 2.11 for a description of the limited
circumstances where this phrase should be included.
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3.
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Covenants
and Agreements of the Issuer.
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The
Issuer covenants and agrees that:
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3.1
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The
Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any
amendment to, modification of or waiver with respect to, the
Notes or the Issuing and Paying Agency Agreement, including a
complete copy of any such amendment, modification or waiver.
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3.2
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The
Issuer shall, whenever there shall occur any change in the
Issuer’s financial condition or any other development or
occurrence in relation to the Issuer that would have a
material adverse effect on the holders of the Notes or
potential holders of the Notes (including any downgrading or
receipt of any notice of intended or potential downgrading in
the rating accorded any of the Issuer’s securities by
any nationally recognized statistical rating organization
which has published a rating of the Notes), promptly, and in
any event prior to any subsequent issuance of Notes hereunder,
notify the Dealer (by telephone, confirmed in writing) of such
change, development or occurrence.
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3.3
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The
Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including,
without limitation, any press releases or material provided by
the Issuer to any national securities exchange, regarding (i)
the Issuer’s operations and financial condition and (ii)
the due authorization and execution of the Notes, (iii) the
Issuer’s ability to pay the Notes as they mature.
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3.4
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The
Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes
will comply with any applicable state Blue Sky laws; provided,
however, that the Issuer shall not be obligated to file any
general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified or subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject.
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3.5
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The
Issuer will not be in default of any of its obligations
hereunder, under the Notes or under the Issuing and Paying
Agency Agreement, at any time that any of the Notes are
outstanding.
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3.6
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The
Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) one or more opinions of counsel to the
Issuer, addressed to the Dealer, substantively covering the
matters set forth in Exhibit D hereto, (b) a copy of the
executed Issuing and Paying Agency Agreement as then in
effect, (c) a copy of the resolutions adopted by the Boards of
Directors of the Issuer, satisfactory in form and substance to
the Dealer and certified by the Secretary or similar officer
of the Issuer, authorizing consummation by the Issuer of the
transactions contemplated hereby, (d) prior to the issuance of
any book-entry Notes represented by a master note registered
in the name of DTC or its nominee, a copy of the executed
Letter of Representations among the Issuer, the Issuing and
Paying Agent and DTC and of the executed master note, (e)
prior to the issuance of any Notes in physical form, a copy of
such form (unless attached to this Agreement or the Issuing
and Paying Agency Agreement) and (f) such other
certificates, opinions, letters and documents as the Dealer
shall have reasonably requested.
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3.7
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The
Issuer shall reimburse the Dealer for all of the Dealer’s
out-of-pocket expenses related to this Agreement, including
expenses incurred in connection with its preparation and
negotiation, and the transactions contemplated hereby
(including, but not limited to, the printing and distribution
of the Private Placement Memorandum), and, if applicable, for
the reasonable fees and out-of-pocket expenses of the Dealer’s
counsel.
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4.
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Disclosure.
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4.1
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The
Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the
Issuer. The Private Placement Memorandum shall
contain a statement expressly offering an opportunity for each
prospective purchaser to ask questions of, and receive answers
from, the Issuer concerning the offering of Notes and to
obtain relevant additional information which the Issuer
possesses or can acquire without unreasonable effort or
expense.
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4.2
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The
Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes available.
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4.3
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(a) The
Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer
that would cause the Company Information then in existence to
include an untrue statement of a material fact or to omit to
state a material fact necessary in order to make the
statements contained therein, in light of the circumstances
under which they are made, not misleading.
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(b) In
the event that the Issuer gives the Dealer notice pursuant
to Section 4.3(a) and the Dealer notifies the Issuer that
it then has Notes it is holding in inventory, the Issuer
agrees promptly to supplement or amend the Private
Placement Memorandum so that the Private Placement
Memorandum, as amended or supplemented, shall not contain
an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading, and the Issuer shall make such
supplement or amendment available to the Dealer.
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(c) In
the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does
not notify the Issuer that it is then holding Notes in
inventory and (iii) the Issuer chooses not to
promptly amend or supplement the Private Placement
Memorandum in the manner described in clause (b)
above, then all solicitations and sales of Notes shall
be suspended until such time as the Issuer has so
amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement
available to the Dealer.
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(d) Without
limiting the generality of Section 4.3(a), the
Issuer shall review, amend and supplement the
Private Placement Memorandum on a periodic basis,
but no less than at least once annually, to
incorporate current
financial information of the Issuer to the
extent necessary to ensure that the information
provided in the Private Placement Memorandum is
accurate and complete.
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5.
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Indemnification
and Contribution.
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5.1
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The
Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or
other entity controlling the Dealer, any affiliate of the
Dealer or any such controlling entity and their respective
directors, officers, employees, partners, incorporators,
shareholders, servants,
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trustees
and agents (hereinafter the “Indemnitees”)
against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses
(including, without limitation, reasonable fees and
disbursements of counsel) or judgments of whatever kind or
nature (each a “Claim”), imposed upon, incurred
by or asserted against the Indemnitees arising out of or
based upon (i) any allegation that the Private Placement
Memorandum, the Company Information or any information
provided by the Issuer to the Dealer included (as of any
relevant time) or includes an untrue statement of a material
fact or omitted (as of any relevant time) or omits to state
any material fact necessary to make the statements therein,
in light of the circumstances under which they were made,
not misleading or (ii) the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to
this Agreement. This indemnification shall not
apply to the extent that the Claim arises out of or is based
upon Dealer Information or is determined to have resulted
from an Indemnitee’s gross negligence or willful
misconduct.
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5.2
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Provisions
relating to claims made for indemnification under this Section
5 are set forth in Exhibit B to this Agreement.
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5.3
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In
order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in
this Section 5 is held to be unavailable or insufficient to
hold harmless the Indemnitees, although applicable in
accordance with the terms of this Section 5, the Issuer shall
contribute to the aggregate costs incurred by the Dealer in
connection with any Claim in the proportion of the respective
economic interests of the Issuer and the Dealer; provided,
however, that such contribution by the Issuer shall be in an
amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by
the Dealer hereunder with respect to the issue or issues of
Notes to which such Claim relates. The respective
economic interests shall be calculated by reference to the
aggregate proceeds to the Issuer of the Notes issued hereunder
and the aggregate commissions and fees earned by the Dealer
hereunder.
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6.
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Definitions.
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6.1
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“Claim”
shall have the meaning set forth in Section 5.1.
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6.2
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“Company
Information” at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable,
(i) the Issuer’s most recent report on Form 10-K filed
with the SEC and each report on Form 10-Q or 8-K filed by the
Issuer with the SEC since the most recent Form 10-K, (ii) the
Issuer’s most recent annual audited financial statements
and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii)
the Issuer’s and its affiliates’ other publicly
available recent reports, including, but not limited to, any
publicly available filings or reports provided to their
respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any
information prepared or approved by the Issuer for
dissemination to investors or potential investors in the
Notes.
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6.3
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“Dealer
Information” shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in
the Private Placement Memorandum.
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6.4
|
“Exchange
Act” shall mean the U.S. Securities Exchange Act of
1934, as amended.
|
9
|
|
6.5
|
“Indemnitee”
shall have the meaning set forth in Section 5.1.
|
|
|
6.6
|
“Institutional
Accredited Investor” shall mean an institutional
investor that is an accredited investor within the meaning of
Rule 501 under the Securities Act and that has such knowledge
and experience in financial and business matters that it is
capable of evaluating and bearing the economic risk of an
investment in the Notes, including, but not limited to, a
bank, as defined in Section 3(a)(2) of the Securities Act, or
a savings and loan association or other institution, as
defined in Section 3(a)(5)(A) of the Securities Act, whether
acting in its individual or fiduciary capacity.
|
|
|
6.7
|
“Issuing
and Paying Agency Agreement” shall mean the issuing and
paying agency agreement described on the cover page of this
Agreement, as such agreement may be amended or supplemented
from time to time.
|
|
|
6.8
|
“Issuing
and Paying Agent” shall mean the party designated as
such on the cover page of this Agreement, as issuing and
paying agent under the Issuing and Paying Agency Agreement, or
any successor thereto in accordance with the Issuing and
Paying Agency Agreement.
|
|
|
6.9
|
“Non-bank
fiduciary or agent” shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the
Securities Act, or (b) a savings and loan association, as
defined in Section 3(a)(5)(A) of the Securities Act.
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|
|
6.10
|
“Private
Placement Memorandum” shall mean offering materials
prepared in accordance with Section 4 (including materials
referred to therein or incorporated by reference therein,
if any) provided to purchasers and prospective purchasers
of the Notes, and shall include amendments and supplements
thereto which may be prepared from time to time in
accordance with this Agreement (other than any amendment
or supplement that has been completely superseded by a
later amendment or supplement).
|
|
|
6.11
|
“Qualified
Institutional Buyer” shall have the meaning assigned
to that term in Rule 144A under the Securities Act.
|
|
|
6.12
|
“Rule
144A” shall mean Rule 144A under the Securities
Act.
|
|
|
6.13
|
“SEC”
shall mean the U.S. Securities and Exchange
Commission.
|
|
|
6.14
|
“Securities
Act” shall mean the U.S. Securities Act of
1933, as amended.
|
|
|
6.15
|
“Sophisticated
Individual Accredited Investor” shall
mean an individual who (a) is an
accredited investor within the meaning of
Regulation D under the Securities Act and (b)
based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the
Dealer to be a sophisticated investor (i)
possessing such knowledge and experience (or
represented by a fiduciary or agent possessing
such knowledge and experience) in financial
and business matters that he or she is capable
of evaluating and bearing the economic risk of
an investment in the Notes and (ii) having not
less than $5 million in investments (as
defined, for purposes of this section, in Rule
2a51-1 under the Investment Company Act of
1940, as amended).
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10
|
7.
|
General
|
|
|
7.1
|
Unless
otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be
effective when received at the address of the respective party
set forth in the Addendum to this Agreement.
|
|
|
7.2
|
This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its
conflict of laws provisions.
|
|
|
7.3
|
The
Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising
out of this Agreement or the Notes or the offer and sale of
the Notes shall be brought solely in the United States federal
courts located in the Borough of Manhattan or the courts of
the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY
IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
|
|
|
7.4
|
This
Agreement may be terminated, at any time, by the Issuer, upon
one business day’s prior notice to such effect to the
Dealer, or by the Dealer upon one business day’s prior
notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the
Issuer under Sections 3.7, 5 and 7.3 hereof or the respective
representations, warranties, agreements, covenants, rights or
responsibilities of the parties made or arising prior to the
termination of this Agreement.
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|
|
7.5
|
This
Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that
the Dealer may assign its rights and obligations under this
Agreement to any affiliate of the Dealer with the consent of
the Issuer, which consent shall not be unreasonably withheld
or delayed.
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|
|
7.6
|
This
Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
|
|
|
7.7
|
This
Agreement is for the exclusive benefit of the parties hereto,
and their respective permitted successors and assigns
hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person
whatsoever.
|
|
|
7.8
|
The
Issuer acknowledges and agrees that the Dealer is acting
solely in the capacity of an arm's length contractual
counterparty to the Issuer with respect to the offering of the
Notes contemplated hereby (including in connection with
determining the price and terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of (except to
the extent explicitly set forth herein), the Issuer or any
other person. The Dealer has not assumed an
advisory or fiduciary responsibility in favor of the Issuer
with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Dealer
has advised or is currently advising the Issuer on other
matters) or any other obligation to the Issuer except the
obligations expressly set forth in this Agreement. Additionally,
the Dealer is not advising the Issuer or any other person as
to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Issuer shall
consult with its own advisors concerning such matters and
shall be responsible for making its own independent
investigation and
|
11
|
|
|
appraisal
of the transactions contemplated hereby, and the Dealer
shall have no responsibility or liability to the Issuer with
respect thereto. Any review by the Dealer of the Issuer, the
transactions contemplated hereby or other matters relating
to such transactions will be performed solely for the
benefit of the Dealer and shall not be on behalf of the
Issuer.
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|
|
7.9
|
This
Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Issuer and the Dealer
with respect to the subject matter hereof.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
|
Norfolk Southern
Corporation, as Issuer
|
X.X. Xxxxxx
Securities Inc., as
Dealer
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxx |
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx X. Xxxxx | |
|
Title:
|
Vice
President and Treasurer
|
Title:
|
Vice President | |
12
Addendum
The
following additional clauses shall apply to the Agreement and be deemed
a part thereof.
1. The
other dealers referred to in clause (b) of Section 1.2 of the Agreement
are
Xxxxxxx Sachs &
Co. AND NO OTHERS.
2. The
following changes are hereby made to the Agreement: None
3. The
addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
|
For
the Issuer:
|
||
|
Address:
|
Three
Commercial Place, Norfolk, Virginia 23510
|
|
|
Attention:
|
Vice
President and Treasurer
|
|
|
Telephone
number:
|
(000)
000-0000
|
|
|
Fax
number:
|
(000)
000-0000
|
|
|
For
the Dealer:
|
||
|
Address:
|
000
Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000
|
|
|
Attention:
|
Short
Term Fixed Income Division
|
|
|
Telephone
number:
|
(000)
000-0000
|
|
|
Fax
number:
|
(000)
000-0000
|
Exhibit
A
Form
of Legend for Private Placement Memorandum and Notes
THE
NOTES THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE SECURITIES
LAW, AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A
NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT THAT (I) IT HAS BEEN
AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER
AND THE NOTES, (II) IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND (III) IT IS EITHER (A)(1) AN INSTITUTIONAL
INVESTOR OR SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT AND WHICH, IN
THE CASE OF AN INDIVIDUAL, (i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE
IN FINANCIAL AND BUSINESS MATTERS THAT HE OR SHE IS CAPABLE OF
EVALUATING AND BEARING THE ECONOMIC RISK OF AN INVESTMENT IN THE NOTES
AND (ii) HAS NOT LESS THAN $5 MILLION IN INVESTMENTS (AN “INSTITUTIONAL
ACCREDITED INVESTOR” OR “SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR”, RESPECTIVELY) AND (2)(i) PURCHASING NOTES FOR ITS OWN
ACCOUNT, (ii) A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A
SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION
3(a)(5)(A) OF THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR
(iii) A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN
ASSOCIATION) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH
ACCOUNTS IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR; OR (B) A QUALIFIED INSTITUTIONAL BUYER (“QIB”)
WITHIN THE MEANING OF RULE 144A UNDER THE ACT THAT IS ACQUIRING NOTES
FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH ACCOUNTS
IS A QIB; AND THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE
SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION PROVISIONS OF
SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS ACCEPTANCE
OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE DEEMED TO AGREE THAT ANY
RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE ISSUER OR TO A
PLACEMENT AGENT DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE
NOTES (COLLECTIVELY, THE “PLACEMENT AGENTS”), NONE OF WHICH
SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT
AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT
MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF
$250,000.
Exhibit
B
Further
Provisions Relating to Indemnification
|
(a)
|
The
Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and
external counsel) as they are incurred by it in connection
with investigating or defending any loss, claim, damage,
liability or action in respect of which indemnification may be
sought under Section 5 of the Agreement (whether or not it is
a party to any such proceedings).
|
|
(b)
|
Promptly
after receipt by an Indemnitee of notice of the existence of a
Claim, such Indemnitee will, if a claim in respect thereof is
to be made against the Issuer, notify the Issuer in writing of
the existence thereof; provided that (i) the omission to so
notify the Issuer will not relieve it from any liability which
it may have hereunder unless and except to the extent it did
not otherwise learn of such Claim and such failure results in
the forfeiture by it of substantial rights and defenses, and
(ii) the omission to so notify the Issuer will not relieve it
from liability which it may have to an Indemnitee otherwise
than on account of this indemnity agreement. In
case any such Claim is made against any Indemnitee and it
notifies the Issuer of the existence thereof, the Issuer will
be entitled to participate therein, and to the extent that it
may elect by written notice delivered to the Indemnitee, to
assume the defense thereof, with counsel reasonably
satisfactory to such Indemnitee; provided that if the
defendants in any such Claim include both the Indemnitee and
the Issuer, and the Indemnitee shall have concluded that there
may be legal defenses available to it which are different from
or additional to those available to the Issuer, the Issuer
shall not have the right to direct the defense of such Claim
on behalf of such Indemnitee, and the Indemnitee shall have
the right to select separate counsel to assert such legal
defenses on behalf of such Indemnitee. Upon receipt
of notice from the Issuer to such Indemnitee of the election
of the Issuer to assume the defense of such Claim and approval
by the Indemnitee of counsel, the Issuer will not be liable to
such Indemnitee for expenses incurred thereafter by the
Indemnitee in connection with the defense thereof (other than
reasonable costs of investigation) unless (i) the Indemnitee
shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however,
that the Issuer shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel in
the jurisdiction in which any Claim is brought), approved by
the Dealer, representing the Indemnitee who is party to such
Claim), (ii) the Issuer shall not have employed counsel
reasonably satisfactory to the Indemnitee to represent the
Indemnitee within a reasonable time after notice of existence
of the Claim or (iii) the Issuer has authorized in writing the
employment of counsel for the Indemnitee. The
indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability
the Issuer may otherwise have to an Indemnitee and shall be
binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Issuer and
any Indemnitee. The Issuer agrees that without the
Dealer’s prior written consent, it will not settle,
compromise or consent to the entry of any judgment in any
Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not
the Dealer or any other Indemnitee is an actual or potential
party to such Claim), unless such settlement, compromise or
consent (i) includes an unconditional release of each
Indemnitee from all liability arising out of such Claim and
(ii) does not include a statement as to or an admission of
fault, culpability or failure to act, by or on behalf of any
Indemnitee.
|
Exhibit
C
Statement
of Terms for Interest – Bearing Commercial Paper Notes of Norfolk
Southern Corporation
THE
PROVISIONS SET FORTH BELOW ARE QUALIFIED TO THE EXTENT APPLICABLE BY THE
TRANSACTION SPECIFIC [PRICING] [PRIVATE PLACEMENT MEMORANDUM] SUPPLEMENT
(THE “SUPPLEMENT”) (IF ANY) SENT TO EACH PURCHASER AT THE
TIME OF THE TRANSACTION.
1. General. (a) The
obligations of the Issuer to which these terms apply (each a “Note”)
are represented by one or more Master Notes (each, a “Master Note”)
issued in the name of (or of a nominee for) The Depository Trust Company
(“DTC”), which Master Note includes the terms and provisions
for the Issuer's Interest-Bearing Commercial Paper Notes that are set
forth in this Statement of Terms, since this Statement of Terms
constitutes an integral part of the Underlying Records as defined and
referred to in the Master Note.
(b) “Business Day”
means any day other than a Saturday or Sunday that is neither a legal
holiday nor a day on which banking institutions are authorized or
required by law, executive order or regulation to be closed in New York
City and, with respect to LIBOR Notes (as defined below) is also a
London Business Day. “London Business Day” means
a day, other than a Saturday or Sunday, on which dealings in deposits in
U.S. dollars are transacted in the London interbank market.
2. Interest. (a) Each
Note will bear interest at a fixed rate (a “Fixed Rate Note”)
or at a floating rate (a “Floating Rate Note”).
(b) The
Supplement sent to each holder of such Note will describe the following
terms: (i) whether such Note is a Fixed Rate Note or a Floating Rate
Note and whether such Note is an Original Issue Discount Note (as
defined below); (ii) the date on which such Note will be issued (the
“Issue Date”); (iii) the Stated Maturity Date (as defined
below); (iv) if such Note is a Fixed Rate Note, the rate per annum at
which such Note will bear interest, if any, and the Interest Payment
Dates; (v) if such Note is a Floating Rate Note, the Base Rate, the
Index Maturity, the Interest Reset Dates, the Interest Payment Dates and
the Spread and/or Spread Multiplier, if any (all as defined below), and
any other terms relating to the particular method of calculating the
interest rate for such Note; and (vi) any other terms applicable
specifically to such Note. “Original Issue Discount
Note” means a Note which has a stated redemption price at the
Stated Maturity Date that exceeds its Issue Price by more than a
specified de minimis
amount and which the Supplement indicates will be an “Original
Issue Discount Note”.
(c) Each
Fixed Rate Note will bear interest from its Issue Date at the rate per
annum specified in the Supplement until the principal amount thereof is
paid or made available for payment. Interest on each Fixed
Rate Note will be payable on the dates specified in the Supplement (each
an “Interest Payment Date” for a Fixed Rate Note) and on the
Maturity Date (as defined below). Interest on Fixed Rate
Notes will be computed on the basis of a 360-day year of twelve 30-day
months.
If
any Interest Payment Date or the Maturity Date of a Fixed Rate Note
falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and/or interest will be payable on the next
succeeding Business Day, and no additional interest will accrue in
respect of the payment made on that next succeeding Business Day.
(d) The
interest rate on each Floating Rate Note for each Interest Reset Period
(as defined below) will be determined by reference to an interest rate
basis (a “Base Rate”) plus or minus a number of basis points
(one basis point equals one-hundredth of a percentage point) (the
“Spread”), if any, and/or multiplied by a certain percentage
(the “Spread Multiplier”), if any, until the principal
thereof is paid or made available for payment. The Supplement
will designate which of the following Base Rates is applicable to the
related Floating Rate Note: (a) the CD Rate (a “CD Rate Note”),
(b) the Commercial Paper Rate (a “Commercial Paper Rate Note”),
(c) the Federal Funds Rate (a “Federal Funds Rate Note”),
(d) LIBOR (a “LIBOR Note”), (e) the Prime Rate (a “Prime
Rate Note”), (f) the Treasury Rate (a “Treasury Rate Note”)
or (g) such other Base Rate as may be specified in such Supplement.
The
rate of interest on each Floating Rate Note will be reset daily, weekly,
monthly, quarterly or semi-annually (the “Interest Reset Period”). The
date or dates on which interest will be reset (each an “Interest
Reset Date”) will be, unless otherwise specified in the
Supplement, in the case of Floating Rate Notes which reset daily, each
Business Day, in the case of Floating Rate Notes (other than Treasury
Rate Notes) that reset weekly, the Wednesday of each week; in the case
of Treasury Rate Notes that reset weekly, the Tuesday of each week; in
the case of Floating Rate Notes that reset monthly, the third Wednesday
of each month; in the case of Floating Rate Notes that reset quarterly,
the third Wednesday of March, June, September and December; and in the
case of Floating Rate Notes that reset semiannually, the third Wednesday
of the two months specified in the Supplement. If any
Interest Reset Date for any Floating Rate Note is not a Business Day,
such Interest Reset Date will be postponed to the next day that is a
Business Day, except that in the case of a LIBOR Note, if such Business
Day is in the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day. Interest on each
Floating Rate Note will be payable monthly, quarterly or semiannually
(the “Interest Payment Period”) and on the Maturity Date. Unless
otherwise specified in the Supplement, and except as provided below, the
date or dates on which interest will be payable (each an “Interest
Payment Date” for a Floating Rate Note) will be, in the case of
Floating Rate Notes with a monthly Interest Payment Period, on the third
Wednesday of each month; in the case of Floating Rate Notes with a
quarterly Interest Payment Period, on the third Wednesday of March,
June, September and December; and in the case of Floating Rate Notes
with a semiannual Interest Payment Period, on the third Wednesday of the
two months specified in the Supplement. In addition, the
Maturity Date will also be an Interest Payment Dat
If
any Interest Payment Date for any Floating Rate Note (other than an
Interest Payment Date occurring on the Maturity Date) would otherwise be
a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next day that is a Business Day, except that in the
case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date of a Floating
Rate Note falls on a day that is not a Business Day, the payment of
principal and interest will be made on the next succeeding Business Day,
and no interest on such payment shall accrue for the period from and
after such maturity.
Interest
payments on each Interest Payment Date for Floating Rate Notes will
include accrued interest from and including the Issue Date or from and
including the last date in respect of which interest has been paid, as
the case may be, to, but excluding, such Interest Payment Date. On
the Maturity Date, the interest payable on a Floating Rate Note will
include interest accrued to, but excluding, the Maturity Date. Accrued
interest will be calculated by multiplying the principal amount of a
Floating Rate Note by an accrued interest factor. This
accrued interest factor will be computed by adding the interest factors
calculated for each day in the
period
for which accrued interest is being calculated. The interest
factor (expressed as a decimal) for each such day will be computed by
dividing the interest rate applicable to such day by 360, in the cases
where the Base Rate is the CD Rate, Commercial Paper Rate, Federal Funds
Rate, LIBOR or Prime Rate, or by the actual number of days in the year,
in the case where the Base Rate is the Treasury Rate. The
interest rate in effect on each day will be (i) if such day is an
Interest Reset Date, the interest rate with respect to the Interest
Determination Date (as defined below) pertaining to such Interest Reset
Date, or (ii) if such day is not an Interest Reset Date, the interest
rate with respect to the Interest Determination Date pertaining to the
next preceding Interest Reset Date, subject in either case to any
adjustment by a Spread and/or a Spread Multiplier.
The
“Interest Determination Date” where the Base Rate is the CD
Rate or the Commercial Paper Rate will be the second Business Day next
preceding an Interest Reset Date. The Interest Determination
Date where the Base Rate is the Federal Funds Rate or the Prime Rate
will be the Business Day next preceding an Interest Reset Date. The
Interest Determination Date where the Base Rate is LIBOR will be the
second London Business Day next preceding an Interest Reset Date. The
Interest Determination Date where the Base Rate is the Treasury Rate
will be the day of the week in which such Interest Reset Date falls when
Treasury Bills are normally auctioned. Treasury Bills are
normally sold at auction on Monday of each week, unless that day is a
legal holiday, in which case the auction is held on the following
Tuesday or the preceding Friday. If an auction is so held on
the preceding Friday, such Friday will be the Interest Determination
Date pertaining to the Interest Reset Date occurring in the next
succeeding week.
The
“Index Maturity” is the period to maturity of the instrument
or obligation from which the applicable Base Rate is calculated.
The
“Calculation Date,” where applicable, shall be the earlier
of (i) the tenth calendar day following the applicable Interest
Determination Date or (ii) the Business Day preceding the applicable
Interest Payment Date or Maturity Date.
All times referred to herein
reflect New York City time, unless otherwise specified.
The
Issuer shall specify in writing to the Issuing and Paying Agent which
party will be the calculation agent (the “Calculation Agent”)
with respect to the Floating Rate Notes. The Calculation
Agent will provide the interest rate then in effect and, if determined,
the interest rate which will become effective on the next Interest Reset
Date with respect to such Floating Rate Note to the Issuing and Paying
Agent as soon as the interest rate with respect to such Floating Rate
Note has been determined and as soon as practicable after any change in
such interest rate.
All
percentages resulting from any calculation on Floating Rate Notes will
be rounded to the nearest one hundred-thousandth of a percentage point,
with five-one millionths of a percentage point rounded upwards. For
example, 9.876545% (or .09876545) would be rounded to 9.87655% (or
.0987655). All dollar amounts used in or resulting from any
calculation on Floating Rate Notes will be rounded, in the case of U.S.
dollars, to the nearest cent or, in the case of a foreign currency, to
the nearest unit (with one-half cent or unit being rounded upwards).
CD
Rate Notes
“CD
Rate” means the rate on any Interest Determination Date for
negotiable certificates of deposit having the Index Maturity as
published by the Board of Governors of the Federal Reserve System (the
“FRB”) in “Statistical Release H.15(519), Selected
Interest Rates” or any successor publication of the FRB (“H.15(519)”)
under the heading “CDs (Secondary Market)”.
If
the above rate is not published in H.15(519) by 3:00 p.m. on the
Calculation Date, the CD Rate will be the rate on such Interest
Determination Date set forth in the daily update of H.15(519), available
through the world wide website of the FRB at
xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/x00/Xxxxxx, or any successor site
or publication or other recognized electronic source used for the
purpose of displaying the applicable rate (“H.15 Daily Update”)
under the caption “CDs (Secondary Market)”.
If
such rate is not published in either H.15(519) or H.15 Daily Update by
3:00 p.m. on the Calculation Date, the Calculation Agent will determine
the CD Rate to be the arithmetic mean of the secondary market offered
rates as of 10:00 a.m. on such Interest Determination Date of three
leading nonbank dealers2
in negotiable U.S. dollar certificates of deposit in New York City
selected by the Calculation Agent for negotiable U.S. dollar
certificates of deposit of major United States money center banks of the
highest credit standing in the market for negotiable certificates of
deposit with a remaining maturity closest to the Index Maturity in the
denomination of $5,000,000.
If
the dealers selected by the Calculation Agent are not quoting as set
forth above, the CD Rate will remain the CD Rate then in effect on such
Interest Determination Date.
Commercial
Paper Rate Notes
“Commercial
Paper Rate” means the Money Market Yield (calculated as described
below) of the rate on any Interest Determination Date for commercial
paper having the Index Maturity, as published in H.15(519) under the
heading “Commercial Paper-Nonfinancial”.
If
the above rate is not published in H.15(519) by 3:00 p.m. on the
Calculation Date, then the Commercial Paper Rate will be the Money
Market Yield of the rate on such Interest Determination Date for
commercial paper of the Index Maturity as published in H.15 Daily Update
under the heading “Commercial Paper-Nonfinancial”.
If
by 3:00 p.m. on such Calculation Date such rate is not published in
either H.15(519) or H.15 Daily Update, then the Calculation Agent will
determine the Commercial Paper Rate to be the Money Market Yield of the
arithmetic mean of the offered rates as of 11:00 a.m. on such Interest
Determination Date of three leading dealers of U.S. dollar commercial
paper in New York City selected by the Calculation Agent for commercial
paper of the Index Maturity placed for an industrial issuer whose bond
rating is “AA,” or the equivalent, from a nationally
recognized statistical rating organization.
If
the dealers selected by the Calculation Agent are not quoting as
mentioned above, the Commercial Paper Rate with respect to such Interest
Determination Date will remain the Commercial Paper Rate then in effect
on such Interest Determination Date.
“Money Market Yield”
will be a yield calculated in accordance with the following formula:
D
x 360
Money
Market Yield = _________________________ x
100
360
- (D x M)
where
“D” refers to the applicable per annum rate for commercial
paper quoted on a bank discount basis and expressed as a decimal and
“M” refers to the actual number of days in the interest
period for which interest is being calculated.
Federal
Funds Rate Notes
“Federal
Funds Rate” means the rate on any Interest Determination Date for
federal funds as published in H.15(519) under the heading “Federal
Funds (Effective)” and displayed on Moneyline Telerate (or any
successor service) on page 120 (or any other page as may replace the
specified page on that service) (“Telerate Page 120”).
If
the above rate does not appear on Telerate Page 120 or is not so
published by 3:00 p.m. on the Calculation Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
H.15 Daily Update under the heading “Federal Funds/(Effective)”.
If
such rate is not published as described above by 3:00 p.m. on the
Calculation Date, the Calculation Agent will determine the Federal Funds
Rate to be the arithmetic mean of the rates for the last transaction in
overnight U.S. dollar federal funds arranged by each of three leading
brokers of Federal Funds transactions in New York City selected by the
Calculation Agent prior to 9:00 a.m. on such Interest Determination
Date.
If
the brokers selected by the Calculation Agent are not quoting as
mentioned above, the Federal Funds Rate will remain the Federal Funds
Rate then in effect on such Interest Determination Date.
LIBOR
Notes
The
London Interbank offered rate (“LIBOR”) means, with respect
to any Interest Determination Date, the rate for deposits in U.S.
dollars having the Index Maturity that appears on the Designated LIBOR
Page as of 11:00 a.m. London time, on such Interest Determination Date.
If
no rate appears, LIBOR will be determined on the basis of the rates at
approximately 11:00 a.m., London time, on such Interest Determination
Date at which deposits in U.S. dollars are offered to prime banks in the
London interbank market by four major banks in such market selected by
the Calculation Agent for a term equal to the Index Maturity and in
principal amount equal to an amount that in the Calculation Agent’s
judgment is representative for a single transaction in U.S. dollars in
such market at such time (a “Representative Amount”). The
Calculation Agent will request the principal London office of each of
such banks to provide a quotation of its rate. If at least
two such quotations are provided, LIBOR will be the arithmetic mean of
such quotations. If fewer than two quotations are provided,
LIBOR for such interest period will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m., in New York City, on such Interest
Determination Date by three major banks in New York City, selected by
the Calculation Agent, for loans in U.S. dollars to leading European
banks, for a term equal to the Index Maturity and in a Representative
Amount; provided, however, that if fewer than three banks so selected by
the Calculation Agent are providing such quotations, the then existing
LIBOR rate will remain in effect for such Interest Payment Period.
“Designated
LIBOR Page” means the display designated as page “3750”
on Moneyline Telerate (or such other page as may replace the 3750 page
on that service or such other service or services as may be nominated by
the British Bankers’ Association for the purposes of displaying
London interbank offered rates for U.S. dollar deposits).
Prime
Rate Notes
“Prime
Rate” means the rate on any Interest Determination Date as
published in H.15(519) under the heading “Bank Prime Loan”.
If
the above rate is not published in H.15(519) prior to 3:00 p.m. on the
Calculation Date, then the Prime Rate will be the rate on such Interest
Determination Date as published in H.15 Daily Update opposite the
caption “Bank Prime Loan”.
If
the rate is not published prior to 3:00 p.m. on the Calculation Date in
either H.15(519) or H.15 Daily Update, then the Calculation Agent will
determine the Prime Rate to be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the Reuters
Screen US PRIME1 Page (as defined below) as such bank’s prime rate
or base lending rate as of 11:00 a.m. on that Interest Determination
Date.
If
fewer than four such rates referred to above are so published by 3:00
p.m. on the Calculation Date, the Calculation Agent will determine the
Prime Rate to be the arithmetic mean of the prime rates or base lending
rates quoted on the basis of the actual number of days in the year
divided by 360 as of the close of business on such Interest
Determination Date by three major banks in New York City selected by the
Calculation Agent.
If
the banks selected are not quoting as mentioned above, the Prime Rate
will remain the Prime Rate in effect on such Interest Determination
Date.
“Reuters
Screen US PRIME1 Page” means the display designated as page
“US PRIME1” on the Reuters Monitor Money Rates Service (or
such other page as may replace the US PRIME1 page on that service for
the purpose of displaying prime rates or base lending rates of major
United States banks).
Treasury
Rate Notes
“Treasury
Rate” means:
(1)
the rate from the auction held on the Interest Determination Date (the
“Auction”) of direct obligations of the United States (“Treasury
Bills”) having the Index Maturity specified in the Supplement
under the caption “INVESTMENT RATE” on the display on
Moneyline Telerate (or any successor service) on page 56 (or any other
page as may replace that page on that service) (“Telerate Page 56”)
or page 57 (or any other page as may replace that page on that service)
(“Telerate Page 57”), or
(2)
if the rate referred to in clause (1) is not so published by 3:00 p.m.
on the related Calculation Date, the Bond Equivalent Yield (as defined
below) of the rate for the applicable Treasury Bills as published in
H.15 Daily Update, under the caption “U.S. Government
Securities/Treasury Bills/Auction High”, or
(3)
if the rate referred to in clause (2) is not so published by 3:00 p.m.
on the related Calculation Date, the Bond Equivalent Yield of the
auction rate of the applicable Treasury Bills as announced by the United
States Department of the Treasury, or
(4)
if the rate referred to in clause (3) is not so announced by the United
States Department of the Treasury, or if the Auction is not held, the
Bond Equivalent Yield of the rate on the particular Interest
Determination Date of the applicable Treasury Bills as published in
H.15(519) under the caption “U.S. Government Securities/Treasury
Bills/Secondary Market”, or
(5)
if the rate referred to in clause (4) not so published by 3:00 p.m. on
the related Calculation Date, the rate on the particular Interest
Determination Date of the applicable Treasury Bills as published in H.15
Daily Update, under the caption “U.S. Government
Securities/Treasury Bills/Secondary Market”, or
(6)
if the rate referred to in clause (5) is not so published by 3:00 p.m.
on the related Calculation Date, the rate on the particular Interest
Determination Date calculated by the Calculation Agent as the Bond
Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m. on that Interest Determination
Date, of three primary United States government securities dealers
selected by the Calculation Agent for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity specified in the
Supplement, or
(7)
if the dealers so selected by the Calculation Agent are not quoting as
mentioned in clause (6), the Treasury Rate in effect on the particular
Interest Determination Date.
“Bond
Equivalent Yield” means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D
x N
Bond
Equivalent Yield = ______________________
x 100
360
- (D x M)
where
“D” refers to the applicable per annum rate for Treasury
Bills quoted on a bank discount basis and expressed as a decimal,
“N” refers to 365 or 366, as the case may be, and “M”
refers to the actual number of days in the applicable Interest Reset
Period.
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3.
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Final
Maturity. The Stated Maturity Date for any
Note will be the date so specified in the Supplement, which
shall be no later than 397 days from the date of issuance. On
its Stated Maturity Date, or any date prior to the Stated
Maturity Date on which the particular Note becomes due and
payable by the declaration of acceleration, each such date
being referred to as a Maturity Date, the principal amount of
each Note, together with accrued and unpaid interest thereon,
will be immediately due and payable.
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4.
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Events of
Default. The occurrence of any of the
following shall constitute an “Event of Default”
with respect to a Note: (i) default in any payment
of principal of or interest on such Note (including on a
redemption thereof); (ii) the Issuer or the Guarantor makes
any compromise arrangement with its creditors generally
including the entering into any form of moratorium with its
creditors generally; (iii) a court having jurisdiction shall
enter a decree or order for relief in respect of the Issuer or
the Guarantor in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or there shall be appointed a receiver,
administrator, liquidator, custodian, trustee or sequestrator
(or similar officer) with respect to the whole or
substantially the
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whole
of the assets of the Issuer or the Guarantor and any such
decree, order or appointment is not removed, discharged or
withdrawn within 60 days thereafter; or (iv) the Issuer or
the Guarantor shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consent to the entry of an order
for relief in an involuntary case under any such law, or
consent to the appointment of or taking possession by a
receiver, administrator, liquidator, assignee, custodian,
trustee or sequestrator (or similar official), with respect
to the whole or substantially the whole of the assets of the
Issuer or the Guarantor or make any general assignment for
the benefit of creditors. Upon the occurrence of
an Event of Default, the principal of each obligation
evidenced by such Note (together with interest accrued and
unpaid thereon) shall become, without any notice or demand,
immediately due and payable.3
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5.
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Obligation
Absolute. No provision of the Issuing and
Paying Agency Agreement under which the Notes are issued shall
alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and
interest on each Note at the times, place and rate, and in the
coin or currency, herein prescribed.
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6.
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Supplement. Any
term contained in the Supplement shall supersede any
conflicting term contained herein.
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3 Unlike
single payment notes, where a default arises only at the
stated maturity, interest-bearing notes with multiple
payment dates should contain a default provision permitting
acceleration of the maturity if the Issuer defaults on an
interest payment.
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Exhibit
D
Model
Opinion of Counsel to Issuer4
[Date]
X.X.
Xxxxxx Securities Inc.
000
Xxxx Xxxxxx, 0xx
xxxxx
Xxx
Xxxx, XX, 00000
Att:
Short Term Fixed Income Division
Ladies
and Gentlemen:
We
have acted as counsel to ________________, a _____________ corporation
(the “Issuer”), in connection with the proposed offering and
sale by the Issuer in the United States of commercial paper in the form
of short-term promissory notes (the “Notes”).
In
our capacity as such counsel, we have examined a specimen form of Note,
an executed copy of the Commercial Paper Dealer Agreement dated
____________, _____ (the “Agreement”) among the Issuer and
X.X. Xxxxxx Securities Inc. (the “Dealer”) and the Issuing
and Paying Agency Agreement dated _____, _____ (the “Issuing and
Paying Agency Agreement”) between the Issuer and _____, as issuing
and paying agent (the “Issuing and Paying Agent”) as well as
originals, or copies certified or otherwise identified to our
satisfaction, of such other records and documents as we have deemed
necessary as a basis for the opinions expressed below. In
such examination, we have assumed the genuineness of all documents
submitted to us as originals, and the conformity to the originals of all
documents submitted to us as copies.
Capitalized terms used herein
without definition are used as defined in the Agreement.
Based upon the foregoing, it is our
opinion that:
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1.
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The
Issuer is a corporation duly organized, validly existing and
in good standing under the laws of the state of _________ and
has all the requisite power and authority to execute, deliver
and perform its obligations under the Notes, the Agreement and
the Issuing and Paying Agency Agreement.
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2.
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Each
of the Agreement and the Issuing and Paying Agency Agreement
has been duly authorized, executed and delivered by the Issuer
and constitutes a legal, valid and binding obligation of the
Issuer enforceable against the Issuer in accordance with its
terms subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally, and subject,
as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law), and except as rights under the Agreement
to indemnity and contribution may be limited by federal or
state laws.
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4
Set forth below are the operative provisions on which the
Dealer will generally expect a legal opinion. Parties
should recognize that there may be additions to the Dealer’s
opinion request, and variations as to the opinion
language, depending on the details of the transaction and
the differing opinion practices of law firms; it may also
be necessary to split the opinion between two or more
counsels where no one counsel is in a position to opine as
to all subjects or in all relevant jurisdictions.
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3.
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The
Notes have been duly authorized, and when issued as provided
in the Issuing and Paying Agency Agreement, will be duly and
validly issued and will constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights
generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
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4.
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The
issuance and sale of Notes under the circumstances
contemplated by the Agreement and the Issuing and Paying
Agency Agreement do not require registration of the Notes
under the Securities Act of 1933, as amended, pursuant to the
exemption from registration contained in Section 4(2) thereof
[and Regulation D thereunder], and do not require compliance
with any provision of the Trust Indenture Act of 1939, as
amended; and the Notes will rank at least pari passu with all
other unsecured and unsubordinated indebtedness of the Issuer.
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5.
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[Except
as provided in Section 1.6(j) of the Agreement,]5 No
consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including
the Securities and Exchange Commission, is required to
authorize, or is otherwise required in connection with the
execution, delivery or performance of, the Agreement, the
Notes or the Issuing and Paying Agency Agreement, except as
may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes.
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6.
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Neither
the execution and delivery of the Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor
the fulfillment of or compliance with the terms and provisions
of either thereof by the Issuer, will (i) result in the
creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the
properties or assets of the Issuer, or (ii) violate or result
in a breach or default under any of the terms of the Issuer’s
charter documents or by-laws, any contract or instrument to
which the Issuer is a party or by which it or its property is
bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which it
or its property is bound.
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7.
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There
is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the
Issuer or any of its subsidiaries which might result in a
material adverse change in the condition (financial or
otherwise), operations or business prospects of the Issuer or
the ability of the Issuer to perform its obligations under the
Agreement, the Notes or the Issuing and Paying Agency
Agreement.
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5
To be added where the parties wish to fully rely on the safe
harbor in Rule 506. See BMA Model Guidance Note
relating to Section 1.6 generally and paragraph 2 in the
Addendum.
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8.
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The
Issuer is not an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.6
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This
opinion may be delivered to the Issuing and Paying Agent, each holder
from time to time of Notes and any nationally recognized rating agency
(in connection with the rating of the Notes), each of which may rely on
this opinion to the same extent as if such opinion were addressed to it.
Very truly yours,
Model
Certificate as to Resolutions7
[Name
of Issuer]
I,
____________, the [Assistant] Secretary of _______________, a
_____________ corporation (the “Issuer”), do hereby certify,
in connection with the issuance and sale of short-term promissory notes
under the Commercial Paper Dealer Agreement dated ____________, ____
(the “Agreement”, the terms defined therein being used
herein as therein defined) between the Issuer and X.X. Xxxxxx Securities
Inc. (the “Dealer”), that:
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1.
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The
following resolution was duly adopted by the Board of
Directors of the Issuer [by unanimous written consent dated
_____, ____] [at a meeting thereof duly called and held on
_______, _____, at which meeting a quorum was present and
acting throughout], and such resolution has not been amended,
modified or revoked and is in full force and effect on the
date hereof:
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RESOLVED,
that the Chairman of the Board, the President, the Executive Vice
President, any Vice President and the Treasurer of the Issuer be, and
each of them hereby is, individually authorized to: (i) borrow for the
use and benefit of the Issuer from time to time through the issuance of
commercial paper notes8; (ii) execute such commercial paper
notes in the name and on behalf of the Issuer and issue such notes in
accordance with the Issuing and Paying Agency Agreement referred to
below; (iii) execute and deliver (A) a Commercial Paper Dealer Agreement
between the Issuer and X.X. Xxxxxx Securities Inc., as Dealer,
providing, among other things, for the sale of commercial paper notes on
behalf of the Issuer and the indemnification of the Dealer in connection
therewith, (B) an Issuing and Paying Agency Agreement between the Issuer
and _____________, as issuing and paying agent, and (C) a Letter of
Representations addressed to The Depository Trust Company; (iv) execute
and file with the Securities and Exchange Commission Form D and any and
all amendments thereto, as required by Section 1.6(j) of the Agreement;9
(v) delegate to any other officers or employees of the Issuer authority
to give instructions to the Dealer pursuant to the Agreement; and (vi)
do such acts and execute such other instruments and documents as may be
necessary and proper to effect the transactions contemplated hereby
including (a) amending documents referred to herein and (b) appointing
additional dealers and successors to any of the parties named.
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7
This model certificate will serve as a guide for
resolutions adopted by the Issuer. Any
resolutions actually adopted, regardless of form, should
cover all the substantive matters covered in this model,
and a certificate substantially to the effect of this
model is required to be delivered to the Dealer under
Section 3.6(c) of the Agreement.
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8
The reference to a specific dollar amount was
removed in order to provide issuers flexibility
with respect to the total amount of commercial
paper issued without having to update the
Resolutions.
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2.
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Each
of the Agreement and the Issuing and Paying Agency Agreement,
as executed and delivered by the Issuer, is substantially in
the form thereof approved by the Board of Directors and
referred to in the resolution set forth in paragraph 1 hereof.
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IN
WITNESS WHEREOF, I have signed this certificate the _____ day of
_______, ________.
_____________________________
[Assistant]
Secretary
