Exhibit 1
XXXXXX FINANCIAL, INC.
$5,000,000,000
Medium-Term Notes, Series I
Due From 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
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September 1, 1998
XXXXXXX XXXXX & CO., FIRST CHICAGO CAPITAL
XXXXXXX LYNCH, PIERCE, XXXXXX & MARKETS, INC.
XXXXX INCORPORATED The First National Bank of Chicago
Xxxxxxx Xxxxx World Headquarters One First National Plaza
North Tower Mail Suite 0084
World Financial Center Chicago, Illinois 60670-0084
New York, New York 10281-1310
CHASE SECURITIES INC. XXXXXXX, XXXXX & CO.
000 Xxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
CITICORP SECURITIES, INC. XXXXXX BROTHERS
000 Xxxx Xxxxxx XXXXXX BROTHERS INC.
New York, New York 10043 Three World Financial Center, 12th Floor
New York, New York 10285-1200
CREDIT SUISSE FIRST BOSTON X.X. XXXXXX SECURITIES INC.
CORPORATION 00 Xxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
BANCAMERICA XXXXXXXXX XXXXXXXX WARBURG DILLON READ LLC
000 Xxxxx XxXxxxx Xxxxxx, 00X 000 Xxxxxxxxxx Xxxx.
Chicago, Illinois 60697 Stamford, CT 06912
Dear Sirs:
Xxxxxx Financial, Inc., a Delaware corporation (the "Company"), confirms
its agreement with you (the "Agents") (either acting directly or through one or
more affiliates) with respect to the issue and sale by the Company of up to
$5,000,000,000 aggregate principal amount of its Medium-Term Notes, Series I
(the "Notes"). The Notes are to be issued under a senior indenture dated as of
September 1, 1995 between the Company and State Street Bank and Trust Company,
as trustee (the "Trustee") (as amended, the
"Indenture"). The Notes will have the maturities, annual interest rates,
redemption provisions and other terms specified in a pricing supplement to the
Note Prospectus referred to below.
Subject to the terms and conditions stated herein, the Company hereby
appoints each of you as an agent of the Company for the purpose of soliciting
offers to purchase the Notes; provided, however, that the Company reserves the
right to appoint additional agents and agrees to provide written notice to you
as promptly as is practicable following the execution of any applicable pricing
agreement with any such additional agents, on substantially similar terms as are
set forth herein for the purpose of soliciting offers to purchase the Notes (the
"Other Agents"); and provided further that the Company reserves the right to
sell and may accept offers to purchase the Notes directly on its own behalf.
1. Solicitations by the Agents of Offers To Purchase; Purchases as
Principals.
(a) Following the Commencement Date (referred to below), the Company
shall notify the Agents from time to time as to the commencement of a period
during which the Notes may be offered and sold by the Agents (each period,
commencing with such a notification and ending at such time as the authorization
for offers and sales through the Agents shall have been suspended by the Company
or the Agents as provided hereunder, being herein referred to as an "Offering
Period"). On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, the Agents will use
their respective reasonable best efforts to solicit offers to purchase the Notes
during each Offering Period upon the terms and conditions set forth in the Note
Prospectus as then amended and supplemented.
The Company agrees to pay each Agent, as consideration for soliciting
the sale of the Notes, in the form of a discount, a commission equal to the
applicable percentage set forth on Schedule 1 hereto of the principal amount of
each Note sold by the Company as the result of a solicitation by such Agent;
provided, however, that either the Agents or the Company may upon not less than
30 days' notice request that the commissions be renegotiated, and if no
agreement is reached within such 30-day period this Agreement shall be
terminated subject to Section 8 hereof.
The Agents are authorized to solicit orders for the Notes only in
denominations of $1,000 or any amount in excess thereof which is a multiple of
$1,000 and, unless otherwise agreed to by the Company, at a purchase price equal
to 100% of their principal amount. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer or indication of interest received
by it to purchase Notes. The Company shall have the sole right to accept offers
to purchase the Notes and may reject any such offer in whole or in part. Each
Agent shall have the right to reject, in its discretion reasonably exercised,
any offer received by it to purchase the Notes, in whole or in part, and any
such rejection shall not be deemed a breach of its agreements contained herein.
In soliciting offers to purchase the Notes hereunder, the Agents are acting
solely as agents for the Company, and not as principals. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but no Agent shall have any liability to the Company in
the event any such purchase is not consummated for
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any reason. Under no circumstances will the Agents be obligated to purchase any
Notes for their own accounts, unless a Terms Agreement has been entered into
pursuant to Section 1(b) hereof.
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Medium-Term
Note, Series I, Administrative Procedures attached hereto as Exhibit A (the
"Procedures"). The Procedures may be amended only by written agreement of the
Company and the Agents.
The documents required to be delivered by Section 5 of this Agreement
shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxx, counsel for the
Agents, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on such date as may be
agreed to by the Company and the Agents (the "Commencement Date").
(b) Subject to the terms and conditions stated herein, the Company agrees
that, whenever the Company determines to sell Notes directly to an Agent as
principal for resale to others, it will enter into a Terms Agreement (which may
be either oral, to be confirmed in writing, or written) relating to such sale in
accordance with the provisions of this Section 1(b). Each sale of Notes to an
Agent as principal shall be made in accordance with the terms of this Agreement
and a supplemental agreement which will provide for the sale of such Notes to,
and the purchase and reoffering thereof by, such Agent. Each such supplemental
agreement (which shall be either oral, to be confirmed in writing, or written,
and in either case the confirmation or the supplemental agreement shall be
substantially in the form of Exhibit B hereto and may take the form of an
exchange of any standard form of written telecommunication between the
applicable Agent and the Company) is herein referred to as a "Terms Agreement".
An Agent's commitment to purchase Notes pursuant to any Terms Agreement 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 describe the Notes to be purchased
pursuant thereto by the Agent who is a party to such Terms Agreement, specify
the principal amount of such Notes, the price to be paid to the Company for such
Notes, the rate at which interest will be paid on the Notes, the date and time
of delivery of payment for such Notes (the "Purchase Date"), the place of
delivery of the Notes and payment therefor, the method of payment and any
modification of the requirements for the delivery of the opinions of counsel,
the certificates from the Company, and the letter from Xxxxxx Xxxxxxxx LLP,
pursuant to Section 5(B)(b). Agents acting as principals may utilize a selling
or dealer group in connection with the resale of Notes purchased. The Agents may
reallow any portion of the commission payable pursuant hereto to dealers or
purchasers in connection with the offer and sale of any Notes.
Delivery of the certificates for Notes sold to an Agent pursuant to
any Terms Agreement shall be made as agreed to between the Company and such
Agent as specified in the Terms Agreement, not later than the Purchase Date set
forth in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form
specified in the Terms Agreement.
2. Other Activities of Agents. The Company acknowledges that nothing in
this Agreement shall prohibit any Agent from (i) acting as broker for the sale
of Notes by
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customers other than the Company, (ii) soliciting the sale of Notes through such
Agent as broker for the seller, soliciting the sale of Notes to such Agent as
principal and soliciting offers to buy Notes, (iii) purchasing Notes, and (iv)
offering and selling as principal for its own account Notes which such Agent has
purchased.
3. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Agents that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form (File No. 333-58723) for the registration under the Act of certain
senior preferred stock, warrants to purchase debt securities and debt
securities, including the Notes. Such registration statement, at the time of
filing, at the time it became effective, and at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies
in all other material respects with said Rule. Such registration statement,
including the exhibits thereto, other than the Form T-1 Statements of
Eligibility and Qualification of the Trustees under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), when it became effective, is
hereinafter called the "Registration Statement", and the prospectus in the form
in which it appears in the Registration Statement is hereinafter called the
"Prospectus". The term "preliminary prospectus" as used herein means a
prospectus filed as part of any post-effective amendment to the Registration
Statement prior to the effective date of such post-effective amendment, as
contemplated in Rule 430 under the Act. The Company proposes to file with the
Commission from time to time, pursuant to Rule 424(b) under the Act, supplements
to the Prospectus, which will describe certain terms of the Notes and prior to
any such filing will advise the Agents of all further information (financial and
other) with respect to the Company to be set forth therein. The Prospectus as so
supplemented from time to time is hereinafter called the "Note Prospectus". Any
preliminary form of supplemental prospectus which may be filed pursuant to Rule
424(b) under the Act is hereinafter called a "preliminary supplemental
prospectus". Any reference herein to the Registration Statement, any preliminary
prospectus, any preliminary supplemental prospectus, the Prospectus, or the Note
Prospectus as amended and supplemented, shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
(except for any documents or portions thereof which are deemed, under Rule 412
of the rules and regulations of the Commission under the Act, not to be
incorporated) which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the effective date of the
Registration Statement, or the issue date of such preliminary prospectus,
preliminary supplemental prospectus, supplemental prospectus, the Prospectus or
the Note Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment", or "supplement" with respect to the Registration
Statement, any preliminary prospectus, any preliminary supplemental prospectus,
any supplemental prospectus, the Prospectus or the Note Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the effective date of the Registration Statement or the issue date of any
preliminary prospectus, any preliminary supplemental prospectus, any
supplemental prospectus, the Prospectus or the Note Prospectus, as the case may
be, deemed to be incorporated therein by reference.
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(b) When the Registration Statement became effective, when any
amendment to the Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration Statement), when
any supplement to the Prospectus (other than a supplement specifying the terms
of debt securities other than the Notes) or the Note Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act, on each day during an
Offering Period, and at the time of delivery of any Notes to any purchaser or
his agent whose offer to purchase such Notes was delivered to the Company during
an Offering Period:
(i) The Registration Statement, as amended as of any such time,
and the Note Prospectus, as amended and supplemented as of any such time, and
the Indenture does and will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder.
(ii) Neither the Registration Statement nor the Note Prospectus,
each as amended and supplemented as of any such time, contains or will contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Note Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of the Agents or the Other Agents
specifically for use in the Registration Statement and the Note Prospectus or
any amendment thereof or supplement thereto.
(iii) The documents incorporated by reference in the
Registration Statement or the Note Prospectus, when they became effective or
were filed with the Commission, as the case may be, under the Exchange Act,
conformed, and any documents so filed and incorporated by reference in the
Registration Statement or the Note Prospectus, each as amended or supplemented
as of any such time, after the date of this Agreement will, when they are filed
with the Commission, conform, in all material respects to the requirements of
the Act and the Exchange Act, as applicable, and all rules and regulations of
the Commission thereunder.
(iv) The consolidated financial statements and consolidated
financial schedules of the Company and any subsidiaries included or incorporated
by reference in the Registration Statement and the Note Prospectus, each as
amended or supplemented as of any such time, fairly present the financial
condition of such companies as of the dates indicated and the results of
operations and changes in financial position for the periods therein specified
in conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein). Xxxxxx
Xxxxxxxx LLP, which has examined certain of such financial statements and
schedules, as set forth in their reports included or incorporated by reference
in the Registration Statement and the Note Prospectus, each as amended or
supplemented as of any such time, are, to the best of the Company's knowledge,
independent public accountants with respect to the Company and its subsidiaries
as required by the Act and the rules and regulations thereunder.
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(v) The Company and each of its subsidiaries (other than
subsidiaries which, considered in the aggregate as a single subsidiary, would
not constitute a "significant subsidiary" as defined in Rule 1-02(v) of
Regulation S-X promulgated by the Commission) have been duly incorporated and
are validly existing as corporations in good standing under the laws of the
respective jurisdictions of their incorporation; each of the Company and such
subsidiaries is duly licensed and duly qualified to do business as a foreign
corporation and is in good standing in all the jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business requires
such qualification, except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole; and each of the Company and such subsidiaries
has full power and authority to own its properties and conduct its business as
described in the Prospectus; all the outstanding shares of capital stock of each
such subsidiary which are owned by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned by the
Company either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and any other security interests, claims, liens
or encumbrances.
(vi) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered; as of the
Commencement Date the Notes will have been duly authorized and, when duly
executed, authenticated, issued and delivered as contemplated hereby and by the
Indenture, will constitute valid and legally binding obligations of the Company
in accordance with their terms subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditor's rights and to general equity principles.
(vii) Each of the agreements listed on Schedule II hereto has
been duly authorized, executed and delivered by the Company and (assuming the
due authorization, execution and delivery thereof by the other party or parties
thereto) constitutes a valid and legally binding obligation of the parties
thereto enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditor's rights and to general equity principles.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) Unless you shall have been otherwise promptly notified by
the Company in writing, except as contemplated in the Note Prospectus, as
amended and supplemented as of any such time, subsequent to the respective dates
as of which information is given in the Registration Statement and the Note
Prospectus, each as amended and supplemented as of any such time, (A) there has
not been any material adverse change in the financial condition, earnings,
business or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business, (B)
neither the Company nor any of its subsidiaries has entered into any transaction
not in the ordinary course of business material to the
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Company and its subsidiaries taken as a whole and (C) neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations, direct or
contingent, not in the ordinary course of business which are material in
relation to the Company and its subsidiaries taken as a whole.
(x) Except as set forth in the Note Prospectus, as amended and
supplemented as of any such time, and except for litigation which, if determined
adversely to the Company or its subsidiaries, would not have a material adverse
effect upon the financial condition or the earnings of the Company and its
subsidiaries (taken as a whole), the Company knows of no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject; to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder and which have not been so filed or which will not be so filed as
required by the Act or such rules or regulations.
(xi) None of the issuance or sale of the Notes by the Company,
the performance of the obligations of the Company under the Notes, the Indenture
and this Agreement, the consummation by the Company of any other of the
transactions herein contemplated, or the fulfillment by the Company of the terms
hereof, will materially conflict with, result in a material breach of or
constitute a material default under any statute, the Company's charter or by-
laws or the terms of any indenture or other agreement or instrument to which the
Company or any of its subsidiaries is a party or is bound, or, to the best of
the Company's knowledge, any order or regulation applicable to the Company or
any of its subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of its
subsidiaries; no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation of the
transactions contemplated in connection with the issuance or sale of the Notes
by the Company, except such as may be required under the Act, the Trust
Indenture Act or state securities laws; and the Company has full power and
authority to authorize, issue and sell the Notes as contemplated by this
Agreement.
4. Agreements of the Company. The Company agrees with the Agents that:
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement, the Company will not file any amendment to the Registration
Statement, any supplement to the Prospectus which would create a Note Prospectus
or any supplement to the Note Prospectus unless the Company has previously
furnished the Agents a copy thereof for their review and will not file any such
proposed amendment or supplement to which any of the Agents reasonably objects.
Subject to the foregoing sentence, the Company will promptly cause the
Prospectus together with each supplement thereto which would create a Note
Prospectus, and each Note Prospectus together with each supplement thereto, to
be transmitted to the Commission for filing electronically by the appropriate
date, or will promptly cause each supplement to the Prospectus or the Note
Prospectus, as the case may be, to be filed with the Commission pursuant to said
Rule. The Company will
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promptly advise the Agents (i) of the filing of any amendment or supplement to
the Prospectus which creates a Note Prospectus, including the filing of
documents incorporated therein by reference, (ii) of the filing of any amendment
or supplement to the Note Prospectus, including the filing of documents
incorporated therein by reference, (iii) of the filing or effectiveness of any
amendment to the Registration Statement, (iv) of any comments from the
Commission relating to or any request by the Commission for any amendment of the
Registration Statement, any amendment of or supplement to the Prospectus which
would create a Note Prospectus, or any amendment of or supplement to the Note
Prospectus, or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which,
in the reasonable opinion of counsel for the Agents or counsel for the Company,
the Registration Statement or the Note Prospectus, as then amended or
supplemented, would not reflect any facts or events which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the Registration Statement or the Note Prospectus, as then amended or
supplemented, and/or would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if, in
the reasonable opinion of either such counsel, it is necessary at any time to
amend or supplement the Registration Statement or the Note Prospectus, as then
amended or supplemented, to comply with the Act, the Company promptly will
notify the Agents and, if so notified by the Company, the Agents shall forthwith
suspend solicitation of offers to purchase Notes and cease using the Note
Prospectus, as then amended or supplemented; the Company will promptly prepare
and file with the Commission, subject to the first sentence of Section 4(a)
above, an amendment or supplement to such Registration Statement or Note
Prospectus which will include such facts or events and/or will correct such
statement or omission or will effect such compliance and will supply such
amended or supplemented Note Prospectus to the Agents in such quantities as the
Agents may reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to the Agents pursuant to Section
4(f) below in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to the Agents, the Agents will,
upon the filing of such amendment or supplement with the Commission or
effectiveness of an amendment to the Registration Statement, resume their
obligations to solicit offers to purchase Notes hereunder.
(c) The Company will make generally available to its security holders
as soon as practicable, but not later than 15 months after the end of a fiscal
quarter of the Company during which any Notes are sold through or purchased by
the Agents, an earnings statement of the Company (which need not be audited)
covering a 12-month period within such 15 months, which earnings statement shall
satisfy the provisions of
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Section 11(a) of the Act and the rules and regulations of the Commission issued
thereunder (including Rule 158 under the Act).
(d) The Company will furnish to each Agent and counsel for the
Agents, without charge, copies of the Registration Statement, the Note
Prospectus and all amendments of and supplements to such documents (including
exhibits thereto and documents incorporated by reference therein), in each case
as soon as available and in such quantities as such Agent reasonably requests
and for so long as delivery of a prospectus by such Agent may be required under
the Act, that the Company will also furnish to each Agent and counsel for the
Agents one manually signed copy of the Registration Statement and all amendments
thereto (including in each case all Exhibits thereto) as soon as available.
(e) The Company will use its best efforts to qualify the Notes for
sale under the securities laws of such jurisdictions as the Agents may
reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes pursuant to this Agreement (except
that the Company shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process in any
State) and will arrange for the determination of the eligibility for investment
of the Notes under the laws of such jurisdictions as the Agents may reasonably
request.
(f) The Company shall furnish to each Agent such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement and the Note Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company and such Agent of their respective obligations
hereunder and thereunder as such Agent may from time to time prior to the
termination of this Agreement reasonably request.
(g) The Company, whether or not any Notes are sold through or
purchased by the Agents and whether or not this Agreement is terminated, shall
pay all expenses incident to the performance of its obligations under this
Agreement, including, without limitation, the fees and disbursements of its
accountants; the cost of printing and delivery of the Registration Statement and
the Note Prospectus, all amendments and supplements thereto, the Indenture, and
all other documents relating to the offering; the cost of preparing, printing,
packaging and delivering the Notes; the fees and disbursements (including fees
of counsel) incurred in connection with the qualification of the Notes for sale
and determination of eligibility for investment of the Notes under the
securities or Blue Sky laws of such jurisdictions as the Agents may designate;
any filing fees of the National Association of Securities Dealers, Inc. relating
to the Notes; the fees and disbursements of the Trustee, the fees of any agency
that rates the Notes; and the fees and expenses in connection with any listing
of the Notes on any stock exchange or market.
(h) The Company shall reimburse each Agent for any out-of-pocket
expenses (including, without limitation, advertising expenses approved by the
Company in its discretion and the reasonable fees and disbursements of counsel
to the Agents) incurred heretofore or hereafter by such Agent in connection with
the offering, purchase and sale of
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the Notes. Any such out-of-pocket expenses shall be payable upon the receipt by
the Company from such Agent of any itemized statement therefor.
(i) Each time the Registration Statement or the Note Prospectus is
amended (which term for the purposes of this Section 4 shall include the filing
by the Company of materials incorporated by reference in the Registration
Statement or the Note Prospectus) or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates on the Notes or
for a change deemed immaterial in the reasonable opinion of the Agents), or the
Prospectus is supplemented to create a Note Prospectus, the Company will, at the
request of any Agent in such Agent's sole discretion, deliver or cause to be
delivered forthwith to each Agent a certificate of the Company signed by the
Chairman of the Board, the President or any Vice President and by the principal
financial or accounting officer of the Company, dated the date of the
effectiveness of such amendment or the date of filing of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the Agents,
to the effect that the statements contained in the certificate referred to in
Section 5(A)(d) that was last furnished to the Agents (either pursuant to
Section 5(A)(d) or pursuant to this Section 4(i)) are true and correct at the
time of the effectiveness of such amendment (which for the purposes of this
Agreement in the case of the filing of materials incorporated by reference shall
be the date of the filing of such materials) or the date of filing of such
supplement, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement as
amended at the time of effectiveness of such amendment, and to the Prospectus or
the Note Prospectus (as the case may be) as amended and supplemented at the date
of such certificate) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(A)(d) but modified, if
necessary, to relate to the Registration Statement as amended at the time of the
effectiveness of such amendment, and to the Prospectus or the Note Prospectus
(as the case may be) as amended and supplemented at the date of such
certificate.
(j) Each time the Registration Statement or the Note Prospectus is
amended or supplemented, including by the filing by the Company of materials
incorporated by reference, or the Prospectus is supplemented to create a Note
Prospectus, the Company shall, at the request of any Agent in such Agent's sole
discretion, furnish to or cause to be furnished forthwith to each Agent a
written opinion of the General Counsel, any Group General Counsel or any
Associate General Counsel of the Company, or other United States counsel to the
Company reasonably satisfactory to the Agents, to the effect set forth in
Exhibit C hereto; provided, however, that such opinion need not be furnished
with respect to an amendment or supplement (i) providing solely for a change in
the interest rates on the Notes or for a change deemed immaterial in the
reasonable opinion of the Agents, or (ii) setting forth or incorporating by
reference financial statements or other information as of and for a fiscal
quarter, unless in the reasonable judgment of the Agents, such financial
statements or other information are of such a nature that an opinion of counsel
should be furnished. Any such opinion shall be dated the date of the
effectiveness of such amendment or the date of filing of such supplement, as the
case may be, in form satisfactory to the Agents. In lieu of such opinion, such
counsel may furnish to each Agent a letter to the effect that the Agents may
rely on such counsel's last opinion to the same extent as though it were dated
the date of such letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the
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Registration Statement as amended at the time of the effectiveness of such
amendment, and to the Prospectus or the Note Prospectus (as the case may be) as
amended and supplemented at the date of such letter).
(k) Each time that the Registration Statement or the Note Prospectus
is amended or supplemented to set forth amended or supplemental financial
information, the Company shall, at the request of any Agent in such Agent's sole
discretion, cause Xxxxxx Xxxxxxxx LLP, its independent public accountants,
forthwith to furnish the Agents a letter, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, as the case may be, in
form satisfactory to the Agents, of the same tenor as the letter referred to in
Section 5(A)(e) and clause (1) of Exhibit D hereto but modified to relate to the
Registration Statement and the Note Prospectus, as amended and supplemented to
the date of such letter, and of the same tenor as the portions of the letter
referred to in clauses (2) and (3) of Exhibit D hereto 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; provided, that
if the Registration Statement or the Note Prospectus is amended or supplemented
solely to include or incorporate by reference financial information with respect
to a fiscal quarter, Xxxxxx Xxxxxxxx LLP may limit the scope of such letter to
the unaudited financial statements included in such amendment or supplement
unless any other information included or incorporated by reference therein of an
accounting, financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such other
information.
(l) Each acceptance by the Company of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent, or the applicable Agent, of the Notes
relating to such acceptance as though made at and as of each such time (and it
is understood that such representations and warranties shall relate to the
Registration Statement and the Note Prospectus as amended and supplemented to
each such time).
(m) Unless otherwise specified in a Terms Agreement, during the
period, commencing on the date of the Terms Agreement and ending on the
settlement date with respect thereto, the Company shall not, without the prior
consent of the Agent who is a party to such Terms Agreement, issue or announce
the proposed issuance of any of its debt securities, including Notes, with terms
substantially similar to those of the Notes being purchased pursuant to the
Terms Agreement.
(n) The Company will deliver to the Agents at their respective
addresses specified in Section 9 below, so long as this Agreement shall remain
in effect, copies of any published reports of the Company to its securities
holders, including, without limitation, any annual reports and quarterly reports
of the Company and any other financial reports made generally available to its
securities holders, at the same time as such reports are published or made
available to securities holders.
11
5. Conditions to the Obligations of the Agents. (A) The obligations of
each Agent to solicit offers to purchase the Notes pursuant to Section 1(a)
hereof will be subject to the accuracy of the representations and warranties on
the part of the Company made herein as of the date hereof, the Commencement Date
and at the times set forth in Section 4(l), to the accuracy of the statements of
the Company's officers made in each certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to such Agent the opinions of
the General Counsel or Associate General Counsel of the Company, or other United
States counsel to the Company reasonably satisfactory to the Agents, dated the
Commencement Date, to the effect set forth in Exhibit C hereto.
(c) Such Agent shall have received from Xxxxxx Xxxxxx & Xxxxx,
counsel for the Agents, an opinion dated the Commencement Date with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
as amended as of the Commencement Date, the Note Prospectus, as amended and
supplemented as of the Commencement Date, and other related matters as such
Agent may reasonably require; and the Company shall have furnished to such
counsel such documents as they may request for the purpose of enabling them to
pass on such matters.
(d) The Company shall have furnished to such Agent a certificate of
the Company, signed by the Chairman of the Board, the President or any Vice
President, and by the principal financial or accounting officer of the Company
(or another officer acceptable to such Agent), dated the Commencement Date, to
the effect that the signers of such certificate have examined the Registration
Statement, as amended as of the date of such certificate, the Note Prospectus,
as amended and supplemented as of the date of such certificate, and this
Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the date of
such certificate with the same effect as if made on the date of such
certificate, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a condition to
the obligations of such Agent under this Agreement;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Note Prospectus, as amended and supplemented, there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the
12
Company and its subsidiaries, whether or not arising from transactions in the
ordinary course of business, nor any material change in the debt maturing more
than one year after the date of issue of the Company and its consolidated
subsidiaries, other than those changes reflected in or contemplated by the Note
Prospectus, as amended and supplemented as of the date of the certificate.
(e) Xxxxxx Xxxxxxxx LLP shall have furnished to such Agent a letter
or letters, dated the Commencement Date, in form and substance satisfactory to
such Agent, confirming that they are independent accountants within the meaning
of the Act and the Exchange Act and the respective applicable published rules
and regulations thereunder, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and to the effect set forth
in Exhibit D hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Note Prospectus, as amended and
supplemented, there shall not have been (i) any change or decrease specified in
the certificate referred to in paragraph (A)(d) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the judgment of such
Agent, so material and adverse as to make it impractical or inadvisable to
proceed with the soliciting of offers to purchase the Notes as contemplated by
the Registration Statement and the Note Prospectus (or, in the case of a Terms
Agreement, to proceed with the offering or the delivery of the Notes to be
purchased as contemplated by the Terms Agreement).
(g) The Company shall have furnished to such Agent such further
information, certificates and documents as such Agent may reasonably request
from time to time. Any certificate signed by any officer of the Company and
delivered to such Agent or its counsel and delivered explicitly pursuant to the
terms of this Agreement shall be deemed a representation and a warranty by the
Company to such Agent as to matters covered thereby, as if set forth herein.
(B) The obligations of an Agent to purchase Notes pursuant to any Terms
Agreement entered into by it pursuant to Section 1(b) hereof will be subject to
the accuracy of the representations and warranties on the part of the Company
herein as of the date of such Terms Agreement and as of the Purchase Date
thereunder, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements contained herein
and in such Terms Agreement on its part to be performed and observed and to the
following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) Except to the extent modified by such Terms Agreement, such Agent
shall have received, appropriately updated and modified, (i) a certificate of
the Company, dated as of the Purchase Date, to the effect set forth in Section
5(A)(d), (ii) the opinion of
13
the General Counsel or Associate General Counsel of the Company, or other United
States counsel to the Company reasonably satisfactory to such Agent, dated as of
the Purchase Date, to the effect set forth in Section 5(A)(b), (iii) the opinion
of Xxxxxx Xxxxxx & Xxxxx, counsel for the Agents, dated as of the Purchase Date,
to the effect set forth in Section 5(A)(c) and (iv) the letter of Xxxxxx
Xxxxxxxx LLP, dated as of the Purchase Date, to the effect set forth in Section
5(A)(e).
(c) The conditions set forth in Section 5(A)(f) shall have been
satisfied.
(d) Prior to the Purchase Date, the Company shall have furnished to
such Agent such further information, certificates and documents as such Agent
may reasonably request.
If any of the conditions specified in this Section 5(B) shall not have been
fulfilled in all material respects when and as provided in this Agreement and in
such Terms Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement and in such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to such Agent
and its counsel, such Terms Agreement and all obligations of such Agent
thereunder may be canceled at, or at any time prior to, the Purchase Date by
such Agent. Notice of such cancellation shall be given to the Company in writing
or by telephone or telecopy confirmed in writing.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person who controls any Agent within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities and
reasonable expenses (including reasonable costs of investigation), as incurred,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
prospectus, any preliminary supplemental prospectus, the Prospectus, the Note
Prospectus or in any amendment thereof or supplement thereto, or arising out of
or 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; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon any untrue statement or omission, or allegation
thereof, which has been made therein or omitted therefrom in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such Agent specifically for use therein, and (ii) such indemnity with respect
to any preliminary prospectus, any preliminary supplemental prospectus, the
Prospectus or the Note Prospectus shall not inure to the benefit of such Agent
(or any person controlling such Agent), if the Company shall have delivered
sufficient quantities of the Note Prospectus, as amended and supplemented, to
such Agent within a reasonable time prior to the earlier of the delivery of the
written confirmation of the sale of such Notes or the delivery of such Notes to
the person asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Note Prospectus as so amended and
14
supplemented (excluding documents incorporated by reference) was not sent or
given to such person at or prior to the earlier of the delivery of the written
confirmation of the sale of such Notes or the delivery of such Notes to such
person in any case where such sending or giving of a prospectus is required by
the Act and the untrue statement or omission of a material fact contained in
such preliminary prospectus, such preliminary supplemental prospectus, such
Prospectus or such Note Prospectus was corrected in the Note Prospectus, as so
amended and supplemented, provided to such Agent. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Agent agrees to indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of either the
Act or the Exchange Act, each director of the Company and each officer of the
Company who signs the Registration Statement or any amendment thereto to the
same extent as the foregoing indemnity from the Company to such Agent, but only
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which was made therein in reliance upon and in conformity with written
information supplied to the Company by or on behalf of such Agent with respect
to such Agent specifically for use therein. This indemnity agreement will be in
addition to any liability which the Agents may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
Section 6(a) or 6(b). In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party 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
indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than local counsel), approved by the Agents in the case
of paragraph (a) of this Section 6, representing the indemnified parties under
such paragraph (a) who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to
15
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 6 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 the relevant
Agent, on the other, from the offering of the Notes 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, 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 such 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 such Agent, on the other, shall be deemed to be in the same
proportion as the proceeds from the sale of such Notes (before deducting
expenses) received by the Company bear to the total commissions (total
discounts, in the case of a Terms Agreement) received by such Agent in respect
thereof pursuant to Section 1. The relative fault shall be determined by
reference to, among other things, whether the indemnified party failed to give
the notice required under paragraph (c) of this Section 6, including the
consequences of such failure, and 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 such Agent, on the other, and the relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, of the Company, on the one hand, or such Agent, on the other. The
Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) of this Section 6 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this paragraph (d)
of this Section 6. The 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 paragraph (d) of this Section 6 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 (which shall be limited as provided in paragraph (c) of this Section 6
if the indemnifying party has assumed the defense of any such action in
accordance with the provisions thereof). Notwithstanding the provisions of this
paragraph (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which such Notes were sold to or through
it 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
16
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. For purposes of this Section 6, each person who controls an
Agent within the meaning of the Act shall have the same rights to contribution
as such Agent, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement or any amendment thereto and each director of
the Company shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against any other party or parties under this
paragraph (d) of this Section 6, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d) of this Section 6. The obligations of the Agents to contribute
under this paragraph (d) of this Section 6 are several in proportion to the
respective commissions received by the relevant Agents from the offering the
Notes to which the loss, claim, damage or liability (or action in respect
thereof) relates.
7. Termination.
(a) This Agreement may be terminated at any time either by the
Company as to any of the Agents or by any of the Agents insofar as this
Agreement relates to such Agent upon the giving of written notice of such
termination to such Agent or Agents or to the Company, as the case may be. In
the event of such termination, no terminating party or party with respect to
which this Agreement is terminated shall have any liability to the other parties
hereto, except as provided in second paragraph of Section 1(a) and Sections
4(c), 4(g), 4(h), 6, 8 and 11 and except that, (i) if at the time of termination
an offer to purchase any of the Notes has been accepted by the Company but the
time of delivery to the purchaser or its Agent of the Note or Notes relating
thereto has not occurred or (ii) if the Agent or Agents shall then own any Note
or Notes purchased pursuant to a Terms Agreement, the Company's representations
and warranties stated in Section 3(b) and its obligations under the fourth
paragraph of Section 1(a) and Sections 4(a), 4(b), 4(e), 4(f), 4(i), 4(j), 4(k),
4(l), 4(m) and 4(n), with respect to clause (i) above, shall also remain in full
force and effect and not be terminated and, with respect to clause (ii) above,
shall remain in full force and effect and not be terminated until the earlier of
such resale or the expiration of 90 days from such termination.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Agent who is a party thereto, by notice given to the
Company prior to delivery of any payment for Notes to be purchased thereunder,
if prior to such time (i) trading in securities generally or of the Company on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared by either Federal or New York State authorities, (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets or the
United States is such as to make it, in the judgment of such Agent,
impracticable to market such Notes or enforce contracts for sale of such Notes,
(iv) there shall have been
17
any decrease in the ratings of any of the Company's debt securities by Xxxxx'x
Investors Service, Inc., Standard & Poor's Corporation or Duff & Xxxxxx, Inc.,
or any such rating agency shall have announced publicly that it has placed any
of such debt securities on what is commonly termed a "Watch List" for possible
downgrading or (v) any condition set forth in Section 5(B) shall not have been
satisfied or waived.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agents or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Notes.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Company, will be mailed or
delivered or sent by facsimile transmission and confirmed to it at 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of the Treasurer, facsimile
transmission number (000) 000-0000, and if sent to any of the Agents, will be
mailed or delivered or sent by facsimile transmission or telegraph and confirmed
to them at their respective addresses and facsimile transmission numbers, as
follows: (a) if to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, to it at
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-1310, Attention: Xxxxx
Xxxxxxxx/MTN Product Management, facsimile transmission number (000) 000-0000;
(b) if to Chase Securities Inc., to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: Medium-Term Note Desk, facsimile transmission number (212) 834-
6081; (c) if to Citicorp Securities, Inc., to it at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxx Xxxxxxx, facsimile transmission number (212) 291-
3910; (d) if to First Chicago Capital Markets Inc., to it at Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Corporate
Securities Structuring, facsimile transmission number (000) 000-0000; (e) if to
Xxxxxxx, Xxxxx & Co., to it at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Credit Department-Credit Control, Medium-Term Notes, facsimile
transmission number (000) 000-0000; (f) if to X.X. Xxxxxx Securities Inc., to it
at 00 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 10260, Attention: MTN Trading
Desk, facsimile transmission number (000) 000-0000; (g) if to Xxxxxx Brothers
Inc. to it at Three World Financial Center, 12th Floor, New York, New York
10285-1200, Attention: Medium-Term Note Department, facsimile transmission
number (000) 000-0000; (h) if to Warburg Dillon Read LLC, to it at 000
Xxxxxxxxxx Xxxx., Xxxxxxxx, XX 00000, Attention: Xxxxx Xxxxx, facsimile
transmission number (000) 000-0000; (i) if to BancAmerica Xxxxxxxxx Xxxxxxxx, to
it at 000 Xxxxx XxXxxxx Xxxxxx, 00xx xxxxx, Xxxxxxx, Xxxxxxxx, Attention:
Xxxxxxx Xxxxx, Medium Term Note Product, facsimile transmission number (312)
974-8936; and (j) if to Credit Suisse First Boston Corporation, to it at Xxxxxx
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Short and Medium Term
Finance, facsimile transmission number (000) 000-0000. Any party hereto may
change its address or facsimile number set out in this Section 9 by a notice
given to the other parties in accordance herewith.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 6 hereof, and no
other person will have any right or obligation hereunder.
18
11. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
principles of conflicts of laws.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
XXXXXX FINANCIAL, INC.
By: Xxxx X. Xxxxxx
------------------------
Title: Senior Vice President
------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: Xxxxx Xxxxxxxx
----------------------------
Title:
----------------------------
CHASE SECURITIES INC.
By: Xxxxx X. XxXxxx
----------------------------
Title: Managing Director
----------------------------
CITICORP SECURITIES, INC.
By: Xxxxx Xxxxxx
----------------------------
Title: VP Syndicate
-----------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: Xxxxxx Xxxxxxx
----------------------------
Title: Vice President
----------------------------
19
BANCAMERICA XXXXXXXXX XXXXXXXX
By: Xxxxx Xxxxxxxx
------------------------------
Title: Managing Director
------------------------------
FIRST CHICAGO CAPITAL MARKETS, INC.
By: Xxxxxx X. Xxxxxx
------------------------------
Title: Vice President
------------------------------
XXXXXXX, XXXXX & CO.
By: Xxxxxxx, Xxxxx & Co.
------------------------------
Title:
------------------------------
XXXXXX BROTHERS INC.
By: Xxxx XxXxxx
------------------------------
Title: Managing Director
------------------------------
X.X. XXXXXX SECURITIES INC.
By: X. Xxxxxx Xxxxxx
------------------------------
Title:
------------------------------
WARBURG DILLON READ LLC
By: Xxxxx Xxxxx
------------------------------
Title: Managing Director
------------------------------
Capital Markets
20
SCHEDULE I
XXXXXX FINANCIAL, INC.
Medium-Term Notes, Series I, Commission Schedule
Commission
Term Rate
---- ----
9 months to less than 1 year .125%
1 year to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to 30 years .750%
SCHEDULE II
XXXXXX FINANCIAL, INC.
Medium-Term Notes, Series I
The agreements covered by the representation and warranty of the Company
set out in Section 3(b)(vii) are as follows:
1. Exchange Rate Agent Agreement between the Company and State Street
Bank and Trust Company dated as of _____________, 1998.
2. Determination Agent Agreement between the Company and State Street
Bank and Trust Company dated as of _____________, 1998.
3. Paying Agent and Securities Registrar Agreement between the Company
and State Street Bank and Trust Company dated as of ______________, 1998.
EXHIBIT A
XXXXXX FINANCIAL, INC.
Medium-Term Note, Series I Administrative Procedures
_____________, 1998
The Medium-Term Notes, Series I due from Nine Months to Thirty Years from
Date of Issue (the "Notes") of Xxxxxx Financial, Inc. (the "Company") are to be
offered on a continuing basis. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated., BancAmerica Xxxxxxxxx Xxxxxxxx, Xxxxx Securities Inc., Citicorp
Securities, Inc., Credit Suisse First Boston Corporation on, First Chicago
Capital Markets, Inc., Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers, X.X. Xxxxxx
Securities Inc. and Warburg Dillon Read LLC., as agents (the "Agents") (either
acting directly or through one or more affiliates), have agreed to use their
reasonable best efforts to solicit offers to purchase Notes from the Company.
The Agents may also purchase Notes as principals for resale. The Notes are being
sold pursuant to a Distribution Agreement between the Company and the Agents
dated as of the date hereof (the "Distribution Agreement"). The Notes will rank
equally with all other unsecured and unsubordinated debt of the Company and have
been registered with the Securities and Exchange Commission (the "Commission").
The Notes will be issued under the senior indenture dated as of September 1,
1995 (as amended, the "Indenture"), between the Company and State Street Bank
and Trust Company ("State Street"), as trustee (in such capacity, the
"Trustee"). The Company has appointed State Street as Paying Agent and
Securities Registrar under the Indenture with respect to the Notes. In addition,
the Trustee has appointed State Street as Authenticating Agent under the
Indenture with respect to the Notes.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to State Street, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note"), or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Only Notes denominated and
payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a Book-
Entry Note will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. The Company will advise the Agents and State Street
in writing of those persons handling administrative responsibilities with whom
the Agents and State Street are to communicate regarding orders to purchase
Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture, the Notes, and
the Prospectus Supplement (dated _____________) relating to the Notes shall be
used herein as therein defined. Notes for which interest is calculated on the
basis of a fixed interest rate are referred to herein as "Fixed Rate Notes".
Notes for which interest is calculated on the basis of a floating interest
EXHIBIT A
rate are referred to herein as "Floating Rate Notes". To the extent the
procedures set forth below conflict with the provisions of the Notes, the
Indenture or the Distribution Agreement, the relevant provisions of the Notes,
the Indenture and the Distribution Agreement shall control.
A-2
EXHIBIT A
PART I
Administrative Procedures for Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, State Street will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and State Street to DTC dated as of
_____________ and a Medium-Term Note Certificate Agreement between State Street
and DTC dated as of September 27, 1988, and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000
principal amount of all such Notes that have the same
tenor and terms, including (i) in the case of Fixed
Rate Notes, the same Original Issue Date, original
issue discount provisions, if any, interest rate,
Interest Payment Dates, Interest Payment Period,
redemption provisions, if any, and Stated Maturity
Date, (ii) in the case of Floating Rate Notes, the same
Original Issue Date, Basic Rate, Initial Interest Rate,
Stated Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier, if any, Minimum
Interest Rate, if any, and Maximum Interest Rate, if
any and (iii) in the case of Currency Indexed Notes,
the same Denominated Currency, Indexed Currency, Face
Amount and Base Exchange Rate (in each case,
collectively, the "Terms"). Each Global Security will
be dated and issued as of the date of its
authentication by the Authenticating Agent. Each Global
Security will bear an interest accrual date (an
"Interest Accrual Date"), which will be (i) with
respect to an original Global Security (or any portion
thereof), its original issuance date and (ii) with
respect to any Global Security (or portion thereof)
issued subsequently upon exchange of a Global Security
or in lieu of a destroyed, lost or stolen Global
Security, the most recent Interest Payment Date to
which interest has been paid or duly provided for on
the predecessor Global Security or Securities (or if no
such payment or provision has been made, the original
issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global
A-3
EXHIBIT A
Security. No Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry Notes or (ii)
any Certificated Note.
Identification Numbers: The Company has previously arranged with the CUSIP
Service Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers), which
series consists of approximately 900 CUSIP numbers and
relates to Global Securities representing Book-Entry
Notes and book-entry medium-term notes issued by the
Company with other series designations. The Company and
DTC have obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers. The
Company will assign CUSIP numbers to Global Securities
as described below under Settlement Procedure "B", DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global Securities, State Street will notify the Company
at any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Securities, and, if
it deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Global Securities. Upon
obtaining such additional CUSIP numbers, the Company
shall deliver a list of such additional CUSIP numbers
to State Street and DTC.
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global Security
will be registered in the name of CEDE & CO., as a
nominee for DTC, on the securities register for the
Notes maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect
to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-
entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such beneficial owner in such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded through
the records of such Participants or through the
A-4
EXHIBIT A
separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchange: State Street may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed
Rate Book-Entry Notes having the same Terms and for
which interest has been paid to the same date or (B)
Floating Rate Book-Entry Notes having the same Terms
and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days
before the next Interest Payment Date for such Book-
Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its
participants (including State Street) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, State Street will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and such new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, State Street
will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a new
Interest Accrual Date and the CUSIP numbers of the
exchanged Global Securities will, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed U.S.
$200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent
each U.S. $200,000,000 of principal amount of the
exchanged Global Securities and an additional Global
Security will be authenticated and
A-5
EXHIBIT A
issued to represent any remaining principal amount of
such Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less
than nine months nor more than thirty years after the
settlement date for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
U.S. $1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000. Global Securities
will be denominated in principal amounts not in excess
of U.S. $200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of U.S.
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be authenticated and issued to
represent each U.S. $200,000,000 principal amount of
such Book-Entry Note or Notes and an additional Global
Security will be authenticated and issued to represent
any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry Note
will accrue from the Interest Accrual Date of the
Global Security representing such Note and will be
calculated and paid in the manner described in such
Note and in the Note Prospectus (as defined in the
Distribution Agreement), as supplemented by the
applicable Pricing Supplement. Unless otherwise
specified therein, each payment of interest on a Book-
Entry Note will include interest accrued to but
excluding the Interest Payment Date or Stated Maturity
(other than a Stated Maturity of a Fixed Rate Book-
Entry Note occurring on the 31st day of a month, in
which case such payment of interest will include
interest accrued to but excluding the 30th day of such
month). Interest payable at the Stated Maturity of a
Book-Entry Note will be payable to the Person to whom
the principal of such Note is payable. Standard &
Poor's Corporation will use the information received in
the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other information
regarding the related Global Security
A-6
EXHIBIT A
in the appropriate weekly bond report published by
Standard & Poor's Corporation.
Regular Record Dates. Unless otherwise specified in
the applicable Pricing Supplement, the regular record
date with respect to any Interest Payment Date shall be
the date fifteen calendar days immediately preceding
such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Book-Entry Notes will
be made either semiannually on March 1 and September 1
of each year or annually on February 1 of each year
and, in either case, at Stated Maturity; provided,
however, that in the case of a Fixed Rate Book-Entry
Note issued between a regular record date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding regular record date; and provided further,
that any payment otherwise required to be made in
respect of a Fixed Rate Note on a date that is not a
Business Day for such Fixed Rate Note need not be made
on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made
on such date, and no additional interest shall accrue
as a result of such delayed payment.
Floating Rate Book-Entry Notes. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semi-annually or annually. Unless otherwise
agreed upon, interest will be payable, in the case of
Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month:
with a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of
each year: with a semi-annual Interest Payment Period
on the third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below: and with an
annual Interest Payment Period, on the third Wednesday
of the month specified pursuant to Settlement Procedure
"A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry Note would
otherwise be a day that is not a Business Day with
respect to such Floating Rate Book-
A-7
EXHIBIT A
Entry Note, such Interest Payment Date will be the next
succeeding Business Day with respect to such Floating
Rate Book-Entry Note (except that in the case of a
Floating Rate Book-Entry Note for which the Base Rate
is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day);
provided further, that in the case of a Floating Rate
Book-Entry Note issued between a regular record date
and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding regular record date; and
provided further, that if the Stated Maturity of a
Floating Rate - Book Entry Note falls on a day that is
not a Business Day, the payment of principal, premium,
if any, 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
Stated Maturity Date.
Notice of Interest Payment and Regular Record Dates. On
the first Business Day of January, April, July and
October of each year, State Street will deliver to the
Company and, if requested by DTC, to DTC, a written
list of regular record dates and Interest Payment Dates
that will occur with respect to Book-Entry Notes during
the six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date
for Floating Rate Book-Entry Notes, the Company will
notify Standard & Poor's Corporation of the interest
rates determined on such Interest Determination Date.
Calculation of Interest: Fixed Rate Book-Entry Notes. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book-Entry Notes, except as otherwise set forth
therein, will be calculated on the basis of actual days
elapsed and a year of 360 days, except that, in the
case of a Floating Rate Book-Entry Note for which the
Base Rate is Treasury Rate, interest will be calculated
on the basis of the actual number of days in the year.
A-8
EXHIBIT A
Payments of Principal
and Interest: Payment of Interest Only. Promptly after each regular
record date, State Street will deliver to the Company
and, if requested by DTC, to DTC, a written notice
setting forth, by CUSIP number, the amount of interest
to be paid on each Global Security on the following
Interest Payment Date (other than an Interest Payment
Date coinciding with Stated Maturity) and the total of
such amounts. DTC will confirm the amount payable on
each Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. The Company will pay to
State Street, as Paying Agent, the total amount of
interest due on such Interest Payment Date (other than
at Stated Maturity), and State Street will pay such
amount to DTC, at the times and in the manner set forth
below under "Manner of Payment". If any Interest
Payment Date for a Book-Entry Note is not a Business
Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and after
such Interest Payment Date (except that in the case of
a Floating Rate Note for which the Base Rate is LIBOR,
if such Business Day with respect to such Floating Rate
Note is in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding
Business Day).
Payments at Stated Maturity. On or about the first
Business Day of each month, State Street will deliver
to the Company and, if requested by DTC, to DTC, a
written list of principal and interest to be paid on
each Global Security maturing (on a Stated Maturity
Redemption or Repayment Date or otherwise) in the
following month. State Street, the Company and DTC will
confirm the amounts of such principal and interest
payments with respect to each such Global Security on
or about the fifth Business Day preceding the Stated
Maturity of such Global Security. The Company will pay
to State Street, as Paying Agent, the principal amount
of such of such Global Security, together with interest
due at such Stated Maturity. State Street will pay such
amount to DTC at the times and in the manner set forth
below under "Manner of Payment". If any Stated Maturity
of a Global Security representing
A-9
EXHIBIT A
Book-Entry Notes is not a Business Day, the payment due
on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Stated
Maturity. Promptly after payment to DTC of the
principal and interest due at Stated Maturity of such
Global Security, State Street, as the Authenticating
Agent, will cancel such Global Security in accordance
with the Indenture and so advise the Company. On the
first Business Day of each month, State Street will
deliver to the Trustee a written statement indicating
the total principal amount of Outstanding Global
Securities as of the immediately preceding Business
Day.
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at Stated Maturity shall be paid by the
Company to State Street in immediately available funds
on such date. The Company will make such payment on
such Global Securities by instructing State Street to
withdraw funds from an account maintained by the
Company at State Street or by wire transfer to State
Street. The Company will confirm any such instructions
in writing to State Street. Prior to 10 A.M. (New York
City time) on the date of Stated Maturity or as soon as
possible thereafter, State Street will pay by separate
wire transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate use
by DTC, each payment of principal (together with
interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Stated Maturity) interest payments shall be made to DTC
in funds available for immediate use by DTC in
accordance with existing arrangements between State
Street and DTC. Thereafter on each such date, DTC will
pay, in accordance with its SDFS operating procedures
then in effect, such amounts in funds available for
immediate use to the respective Participants in whose
names the Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. None of the Company (as issuer or as
paying agent), the Trustee or State Street shall have
any direct responsibility or
A-10
EXHIBIT A
liability for the payment by DTC to such
Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Procedure for Rate Setting
Posting: The Company and the Agents will discuss from time
to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Book-Entry Notes that may be sold as a
result of the solicitation of orders by the Agents.
If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which
the Agents are to solicit orders (the setting of
such prices and rates to be referred to herein as
"posting") or if the Company decides to change
prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates
to be posted.
Acceptance and
Rejection of Orders: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all orders to purchase Book-Entry Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed by the Company
and such Agent, the Company has the right to accept
orders to purchase Book-Entry Notes and may reject
any such orders in whole or in part.
Preparation of Pricing
Supplement: If any order to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to have ten copies thereof
filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the soliciting
Agent at the address set forth in the penultimate
A-11
EXHIBIT A
sentence of this paragraph. The Company will cause
at least one copy of each such Pricing Supplement
to be promptly delivered to the Agents so that the
Agents receive such Pricing Supplement not later
than 11:00 a.m. New York City time on the first
Business Day following the acceptance of any such
order. Such Pricing Supplement shall promptly be
delivered by courier to such Agent at the following
address: (a) if to Xxxxxxx Xxxxx & Co., to: Tritech
Services, 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Prospectus Operations/Xxxxxxx
Xxxxxxxxx, (000) 000-0000, telecopier (908) 885-
2774/5/6; (b) if to Chase Securities Inc., to it at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Medium-Term Note Desk, facsimile
transmission number (000) 000-0000; (c) if to
Citicorp Securities Inc., to it at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx,
facsimile transmission number (000) 000-0000; (d)
if to First Chicago Capital Markets Inc., to it c/o
Operations Manager, Medium-Term Notes, One First
National Plaza, Mail Suite 0237, Chicago, Illinois
60670, Attention: Xxxxxx XxXxxxxx, facsimile
transmission number (000) 000-0000; (e) if to
Xxxxxxx, Xxxxx & Co., to it at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx,
facsimile transmission number (000) 000-0000; (f)
if to X.X. Xxxxxx Securities Inc., to it at 00 Xxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 10260,
Attention: MTN Trading Desk, facsimile transmission
number (000) 000-0000; (g) if to Xxxxxx Brothers
Inc. by telecopy, to it c/o ADP, Prospectus
Services, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000, facsimile transmission number (516) 249-
7942, and by hand to it at Three World Financial
Center, 9th Floor, New York, New York 10285-0900,
Attention: Xxxxxx Xxxxxxx; (h) if to Warburg Dillon
Read LLC, to it at 000 Xxxxxxxxxx Xxxx., Xxxxxxxx,
XX 00000, Attention: Xxxxx Xxxxx, facsimile
transmission number (000) 000-0000; (i) if to
BancAmerica Xxxxxxxxx Xxxxxxxx Inc., to it at 000
Xxxxx XxXxxxx Xxxxxx, 00xx xxxxx, Xxxxxxx, Xxxxxxxx
00000, attention Xxxxxxx Xxxxx, Medium Term Note
Product, facsimile transmission number (312) 974-
8936; and (j) if to Credit Suisse First Boston
Corporation, to it at Xxxxxx Xxxxxxx Xxxxxx, 0xx
Floor, New York, New York 10010, attention Short
and Medium Term Finance, facsimile transmission
number (000) 000-0000. The Agent that has solicited
such order
A-12
EXHIBIT A
will cause a Note Prospectus and Pricing Supplement
to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agents will provide a Pricing
Supplement and Note Prospectus to the purchaser of
the Note or its agent. Pursuant to Rule 434 ("Rule
434") of the Act, the Pricing Supplement may be
delivered separately from the Note Prospectus.
Outdated Pricing Supplements (other than those
retained for files), will be destroyed.
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agents to suspend at
any time, for any period of time or permanently,
the solicitation of orders to purchase Notes. Upon
receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Trustee, the Agents and State
Street whether such orders may be settled and
whether copies of the Note Prospectus as in effect
at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Note Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the
Distribution Agreement) or the Note Prospectus, it
will promptly advise the Agents, and furnish the
Agents with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Distribution
Agreement. Subject to the provisions of the
Distribution Agreement, the Company may file with
the Commission any such supplement to the Note
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and State Street
with
A-13
EXHIBIT A
copies of any such supplement, and confirm to the
Agents that such supplement has been filed with the
Commission pursuant to the applicable paragraph of Rule
424(b).
Procedures for Changes: When the Company has determined to change the interest
rates of Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend
solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the
Agents of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded. Within five
Business Days after any sale of Notes, the Company will
file with the Commission a Pricing Supplement to the
Note Prospectus relating to such Notes that reflects
the applicable interest rates and other terms and will
deliver copies of such Pricing Supplement to the
Agents.
Delivery of Prospectus: A copy of the Note Prospectus and a Pricing Supplement
relating to a Book-Entry Note, which pursuant to Rule
434, may be delivered separately from the Note
Prospectus, must accompany or precede the earliest of
any written offer of such Note, confirmation of the
purchase of such Note and payment for such Note by its
purchaser. If notice of a change in the terms of the
Book-Entry Notes is received by an Agent between the
time an order for a Book-Entry Note is placed and the
time written confirmation thereof is sent by such Agent
to a customer or his agent, such confirmation shall be
accompanied by a Note Prospectus and Pricing Supplement
setting forth the terms in effect when the order was
placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, each Agent will deliver
a Note Prospectus and Pricing Supplement as herein
described with respect to each Book-Entry Note sold by
it. State Street will make such delivery if such Note
is sold directly by the Company to a purchaser (other
than an Agent).
Confirmation: For each order to purchase a Book-Entry Note solicited
by an Agent and accepted by or on behalf of the
Company, such Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
A-14
EXHIBIT A
the details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following the date of sale of such Note pursuant to the
timetable for settlement set forth below unless the
Company and the purchaser agree to settlement on
another day which shall be no earlier than the next
Business Day following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through any soliciting Agent,
as agent, shall be as follows:
A. The soliciting Agent will advise the Company by
telephone (confirmed in writing) of the following
settlement information:
1. Principal amount.
2. Stated Maturity Date.
3. (a) In the case of a Fixed Rate Book-Entry
Note, the interest rate; and (b) in the case
of a Floating Rate Book-Entry Note, the Base
Rate, Initial Interest Rate (if known at such
time), Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any),
Interest Determination Dates, Calculation
Date, Calculation Agent (if other than the
Company).
4. In the case of a Currency Indexed Book-Entry
Note, the Denominated Currency, Indexed
Currency, Face Amount and Base Exchange
Rate.
A-15
EXHIBIT A
5. Interest Payment Dates and the Interest
Payment Period.
6. Redemption provisions, if any.
7. Settlement date.
8. Price.
9. Agent's commission, determined as provided in
Schedule I of the Distribution Agreement.
10. Whether the Note is issued at an original
issue discount and, if so, the total amount
of OID, the yield to maturity and the initial
accrual period OID.
11. If the Note is an Amortizing Note, the
repayment provisions.
B. The Company will assign a CUSIP number to the
Global Security representing such Note and then
advise State Street by telephone (confirmed in
writing at any time on the same date) or
electronic transmission of the information set
forth in Settlement Procedure "A" above, such
CUSIP number and the name of the soliciting Agent.
The Company will also notify the soliciting Agent
by telephone of such CUSIP number as soon as
practicable. Each such communication by the
Company shall constitute a representation and
warranty by the Company to State Street, the
Authenticating Agent (if other than State Street),
the Trustee and the soliciting Agent that (i) such
Note is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and
sale by the Company, (ii) such Note, and the
Global Security representing such Note, will
conform with the terms of the Indenture and (iii)
upon authentication and delivery of such Global
Security, the aggregate principal amount of all
Notes issued under the Indenture will not exceed
U.S. $5,000,000,000 or the equivalent thereof in
other currencies.
A-16
EXHIBIT A
C. State Street will enter a pending deposit message
through DTC's Participant Terminal System
providing the following settlement information to
DTC, the soliciting Agent, Standard & Poor's
Corporation and, upon request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Identification as a Currency Indexed Note,
if applicable.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds
the related regular record date (which in
the case of the floating rate Notes that
reset daily or weekly, shall be the DTC
Record Date which is the date 5 calendar
days immediately preceding the applicable
Interest Payment Date and in the case of all
other Notes shall be the regular record date
as defined in the Notes) and amount of
interest payable on such Interest Payment
Date.
5. The Interest Payment Period.
6. CUSIP number of the Global Security
representing such Note.
7. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
8. The number of participant accounts
maintained by DTC on behalf of State Street,
the Trustee and the Agents.
D. The Authenticating Agent will complete such Note,
stamp the appropriate legend, if not
A-17
EXHIBIT A
already set forth thereon, and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to State Street's
participant account at DTC.
F. State Street will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to State
Street's participant account and credit such Note
to the soliciting Agent's participant account and
(ii) debit the soliciting Agent's settlement
account and credit State Street's settlement
account for an amount equal to the price of such
Note less the soliciting Agent's commission. The
entry of such a deliver order shall constitute a
representation and warranty by State Street to DTC
that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated
and (ii) State Street is holding such Global
Security pursuant to the Medium-Term Note
Certificate Agreement between State Street and
DTC.
G. The soliciting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note 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 Note.
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. State Street will wire transfer to the account of
the Company maintained at Mellon Bank, Pittsburgh,
Pennsylvania (Account No. 183-5261, in the name of
Xxxxxx Financial, Inc.), or such other bank as the
Company may designate,
A-18
EXHIBIT A
funds available for immediate use in the amount
transferred to State Street in accordance with
Settlement Procedure "F".
J. Periodically, State Street will send to the
Company and the Trustee a statement setting forth
the principal amount of Notes Outstanding as of
that date and setting forth a brief description of
any sales of which the Company has advised State
Street but which have not yet been settled.
K. The soliciting Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent
and accepted by the Company for settlement on the first
Business Day after the sale date, Settlement Procedures
"A" through "K" 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 Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but not
later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
A-19
EXHIBIT A
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 12:00
Noon and 2:00 P.M., respectively, on the second
Business Day before 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 SDFS operating procedures
in effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or canceled, State
Street will deliver to DTC, through DTC's Participant
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 State Street fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", State Street may deliver to
DTC through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such Note to State Street's participant account.
DTC will process the withdrawal message, provided that
State Street's participant account contains a principal
amount of the Global Security representing such Note
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 Notes represented by a
Global Security, the Authenticating Agent will cancel
such Global Security in accordance with the Indenture
and so advise the Company and State Street, and State
Street will make appropriate entries in its records.
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 Notes
represented by a Global Security, State Street will
exchange such Book-Entry Notes for two Global
Securities, one of which shall represent the Book-Entry
Notes designated in the withdrawal message and shall be
canceled immediately after issuance and the other of
which shall represent the other Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
A-20
EXHIBIT A
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the soliciting Agent may
enter SDFS delivery orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "G" and
"F", respectively. Thereafter, State Street will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
represented by a Global Security, State Street will
provide, in accordance with Settlement Procedure
"D", for the authentication and issuance of a
Global Security representing the other Book-Entry
Notes to have been represented by such Global
Security and will make appropriate entries in its
records.
Trustee and State Street
Not to Risk Funds: Nothing herein shall be deemed to require the
Trustee or State Street to risk or expend its own
funds in connection with any payment to the
Company, or any Agent or the purchaser, it being
understood by all parties that payments made by the
Trustee or State Street to either the Company or an
Agent shall be made only to the extent that funds
are provided to the Trustee or State Street for
such purpose.
Authenticity of Signatures: The Company will cause the Authenticating Agent to
furnish the Agents from time to time with the
specimen signatures of each of the Authenticating
Agent's officers, employees or agents who has been
authorized by the Authenticating Agent to
authenticate Book-Entry Notes, but the Agents will
not have any obligation or liability to the Company
or the Authenticating Agent in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the
Authenticating Agent on any Book-Entry Note.
A-21
EXHIBIT A
Payment of Expenses: Each Agent shall forward to the Company from time to
time a statement of the out-of-pocket expenses incurred
by such Agent that are reimbursable to it pursuant to
the terms of the Distribution Agreement. The Company
will remit payment to such Agent promptly after
submission of such a statement.
Advertising Costs: The Company will determine with the Agents the form,
substance and amount of advertising that may be
appropriate in soliciting offers to purchase the Book-
Entry Notes. Advertising expenses will be paid by the
Company or reimbursed to the Agents by the Company.
A-22
EXHIBIT A
PART II
Administrative Procedures for Certificated Notes
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the
Authenticating Agent. Each Certificated Note will
bear an Original Issue Date, which will be (i) with
respect to an original Certificated Note (or any
portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect
to any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the Original Issue
Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer
or exchange at Xxxxxxx Square, 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 or at the office or
agency designated by State Street in The City of
New York. Certificated Notes will be exchangeable
for other Certificated Notes having identical terms
but different authorized denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Note.
Maturities: Each Certificated Note will mature on a date not
less than nine months nor more than thirty years
after the settlement date for such Note.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
any Specified Currency other than U.S. dollars will
be specified pursuant to "Settlement Procedures"
below.
Interest: General. Interest, if any, on each Certificated
Note will be calculated and paid in the manner
described in such Note and in the Note Prospectus,
as supplemented by the applicable Pricing
Supplement. Unless otherwise
A-23
EXHIBIT A
specified herein, each payment of interest on a
Certificated Note will include interest accrued to
but excluding the Interest Payment Date or Stated
Maturity (other than a Stated Maturity of a Fixed
Rate Certificated Note occurring on the 31st day of
a month, in which case such payment of interest
will include interest accrued to but excluding the
30th day of such month).
Regular Record Dates. The regular record dates with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Certificated
Notes will be made either semi-annually on March 1
and September 1 of each year or annually on
February 1 of each year and, in either case, at
Stated Maturity: provided, however, that in the
case of a Fixed Rate Certificated Note issued
between a regular record date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding regular record date; and provided
further, that any payment otherwise required to be
made in respect of a Fixed Rate Certificated Note
on a date that is not a Business Day for such Fixed
Rate Certificated Note need not be made on such
date, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such date, and no additional interest shall
accrue as a result of such delayed payment.
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually.
Unless otherwise agreed by the Company, interest
will be payable, in the case of Floating Rate
Certificated Notes with a monthly Interest Payment
Period, on the third Wednesday of each month; with
a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of
each year; with a semi-annual Interest Payment
Period, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A"
below; and with an annual
A-24
EXHIBIT A
Interest Payment Period, on the third Wednesday of
the month specified pursuant to Settlement
Procedure "A" below, provided, however, that if an
Interest Payment Date for a Floating Rate
Certificated Note would otherwise be a day that is
not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date
will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note
(except that in the case of a Floating Rate
Certificated Note for which the Base Rate is LIBOR,
if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be
the immediately preceding Business Day); provided
further, that in the case of a Floating Rate
Certificated Note issued between a regular record
date and an Interest Payment Date, the first
interest payment will be made on the Interest
Payment Date following the next succeeding regular
record date; and provided further, that if the
Stated Maturity of a Floating Rate Certificated
Note falls on a day that is not a Business Day, the
payment of principal, premium, if any, 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 Stated Maturity
Date.
Calculation of Interest: Fixed Rate Certificate Note. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-
day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of Notes. The Company and
State Street will confirm the amount of the Initial
Interest Payment due on any Floating Rate
Certificated Note for which the Initial Interest
Period is shorter or longer than the Index Stated
Maturity. Interest on Floating Rate Certificated
Notes, except as otherwise set forth therein, will
be calculated on the basis of actual days elapsed
and a year of 360 days, except that, in the case of
a Floating Rate Certificated Note for which the
Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of
days in the year.
A-25
EXHIBIT A
Payments of Principal
and Interest: State Street will pay the principal amount of each
Certificated Note at Stated Maturity upon
presentation of such Note to State Street. Such
payment, together with payment of interest due at
Stated Maturity of such Note, will be made in funds
available for immediate use by State Street and in
turn by the Holder of such Note. Certificated Notes
presented to State Street at Stated Maturity for
payment will be canceled by State Street, as the
Authenticating Agent in accordance with the
Indenture. All interest payments on a Certificated
Note (other than interest due at Stated Maturity)
will be made by check drawn on State Street (or
another Person appointed by State Street) and
mailed by State Street to the Person entitled
thereto as provided in such Note and the Indenture;
provided, however, that the holder of U.S.
$10,000,000 (or the equivalent thereof in other
currencies) or more of Notes with similar tenor and
terms will be entitled to receive payment by wire
transfer in U.S. dollars. Following each Regular
Record Date and Special Record Date, State Street
will furnish the Company and the Paying Agent (if
other than State Street) with a list of interest
payments to be made on the following Interest
Payment Date for each Certificated Note and the
total for all Certificated Notes. Interest at
Stated Maturity will be payable to the Person to
whom the payment of principal is payable. State
Street will provide monthly to the Company lists of
principal and interest, to the extent
ascertainable, to be paid on Certificated Notes
maturing (on a Stated Maturity, Redemption or
Repayment Date or otherwise) in the next month.
State Street will be responsible for withholding
taxes on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date for or the Stated
Maturity of a Certificated Note is not a Business
Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date or Stated
Maturity, as the case may be, except in the case of
an Interest Payment Date on a Floating Rate
Certificated Note for which the Base Rate is LIBOR,
if such Business Day is in the next
A-26
EXHIBIT A
succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business
Day.
Procedure for Rate Setting
and Posting: The Company and the Agents will discuss from time
to time the aggregate principal amount of the
issuance price of, and the interest rates to be
borne by, Notes that may be sold as a result of the
solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
Acceptance and Rejection
of Orders: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all orders to purchase Certificated Notes
received by such Agent, other than those rejected
by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise agreed
by the Company and the Agents, the Company has the
sole right to accept orders to purchase
Certificated Notes and may reject any such orders
in whole or in part.
Preparation of Pricing
Supplement: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to have ten copies thereof
filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the soliciting
Agent at the address set forth in the penultimate
sentence of this paragraph. The Company will cause
at least one copy of each such Pricing Supplement
to be promptly delivered to the Agents so that the
Agents receive such Pricing Supplement not later
than the close of business on the first Business
Day following acceptance of any such order. Such
Pricing Supplement shall promptly be delivered by
courier to such Agent at the following address: (a)
if to Xxxxxxx Xxxxx & Co., to
A-27
EXHIBIT A
Tritech Services, 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, Attention: Prospectus Operations/
Xxxxxxx Xxxxxxxxx, (000) 000-0000, telecopier (908)
885-2774/5/6; (b) if to Chase Securities Inc., to
it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Desk, facsimile
transmission number (000) 000-0000; (c) if to
Citicorp Securities Inc., to it at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx,
facsimile transmission number (000) 000-0000; (d)
if to First Chicago Capital Markets Inc., to it c/o
Operations Manager, Medium-Term Notes, One First
National Plaza, Mail Suite 0237, Chicago, Illinois
60670, Attention: Xxxxxx XxXxxxxx, facsimile
transmission number (000) 000-0000; (e) if to
Xxxxxxx, Xxxxx & Co., to it at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx,
facsimile transmission number (000) 000-0000; (f)
if to X.X. Xxxxxx Securities Inc., to it at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxx, facsimile transmission number (212) 648-
5207; (g) if to Xxxxxx Brothers Inc. by telecopy,
to it c/o ADP, Prospectus Services, 000 Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, facsimile
transmission number (000) 000-0000, and by hand to
it at Three World Financial Center, 9th Floor, New
York, New York 10285-0900, Attention: Xxxxxx
Xxxxxxx; (h) if to Warburg Dillon Read LLC, to it
at 000 Xxxxxxxxxx Xxxx., Xxxxxxxx, XX 00000,
Attention: Xxxxx Xxxxx, facsimile transmission
number (000) 000-0000; (i) if to BancAmerica
Xxxxxxxxx Xxxxxxxx Inc., to it at 000 Xxxxx XxXxxxx
Xxxxxx, 00xx xxxxx, Xxxxxxx, Xxxxxxxx 00000,
attention Xxxxxxx Xxxxx, Medium Term Note Product,
facsimile transmission number (000) 000-0000; and
(j) if to Credit Suisse First Boston Corporation,
to it at Xxxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, New York, attention Short and Medium Term
Finance, facsimile transmission number (212) 325-
8183. The Agent that has solicited such order will
cause a Note Prospectus and Pricing Supplement to
be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent will provide Pricing Supplement
and Note Prospectus prior to the purchaser of the
Note or its agent. Pursuant to Rule 434, the
Pricing Supplement may be delivered separately from
the Note Prospectus.
A-28
EXHIBIT A
Outdated Pricing Supplements (other than those
retained for files), will be destroyed.
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agents to suspend at
any time for any period of time or permanently, the
solicitation of orders to purchase Notes. Upon
receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents, the Trustee and State
Street whether such orders may be settled and
whether copies of the Note Prospectus as in effect
at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Note Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Note Prospectus, it
will promptly advise the Agents and furnish the
Agents with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Distribution
Agreement. Subject to the provisions of the
Distribution Agreement, the Company may file with
the Commission any supplement to the Note
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and State Street
with copies of any such supplement, and confirm to
the Agents that such supplement has been filed with
the Commission pursuant to the applicable paragraph
of Rule 424(b).
Procedure for Rate
Changes: When the Company has determined to change the
interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith
A-29
EXHIBIT A
suspend solicitation of orders. The Agents will
telephone the Company with recommendations as to
the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of
orders. Until such time only "indications of
interest" may be recorded. Within two Business Days
after any sale of Notes, the Company will file with
the Commission a Pricing Supplement to the Note
Prospectus relating to such Notes that reflects the
applicable interest rates and other terms and will
deliver copies of such Pricing Supplement to the
Agents.
Delivery of Prospectus: A copy of the Note Prospectus and a Pricing
Supplement relating to a Certificated Note must
accompany or precede the earliest of any written
offer of such Note, confirmation of the purchase of
such Note and payment for such Note by its
purchaser. If notice of a change in the terms of
the Certificated Notes is received by an Agent
between the time an order for a Certificated Note
is placed and the time written confirmation thereof
is sent by such Agent to a customer of his agent,
such confirmation shall be accompanied by a Note
Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject
to "Suspension of Solicitation: Amendment or
Supplement" above, each Agent will deliver a Note
Prospectus and Pricing Supplement as herein
described with respect to each Certificated Note
sold by it. State Street will make such delivery if
such Note is sold directly by the Company to a
purchaser (other than an Agent).
Confirmation: For each order to purchase a Certificated Note
solicited by an Agent and accepted by or on behalf
of the Company, such Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the soliciting Agent and such
Agent's delivery of such Note against receipt of
immediately available funds shall, with respect to
such Note, constitute "settlement". All orders
accepted by the
A-30
EXHIBIT A
Company will be settled on the third Business Day
following the date of sale pursuant to the timetable
for settlement set forth below, unless the Company and
the purchaser agree to settlement on another day which
shall be no earlier than the next Business Day
following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note sold by the Company through the Agents, as agent,
shall be as follows:
X. Xxxx soliciting Agent will advise the Company by
telephone (confirmed in writing) of the following
settlement information.
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal Amount.
5. Stated Maturity Date.
6. (a) In the case of a Fixed Rate Certificated
Note, the interest rate; and (b) in the case
of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such
time), Base Rate, Index Stated Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), and Maximum
Interest Rate (if any), Calculation Date,
Calculation Agent.
7. In the case of a Currency Indexed
Certificated Note, the Denominated Currency,
Indexed Currency, Face Amount and Base
Exchange Rate.
A-31
EXHIBIT A
8. Interest Payment Dates and the Interest
Payment Period.
9. Specified Currency and whether the option to
elect payment in a Specified Currency
applies and if the Specified Currency is not
U.S. dollars, the authorized denominations.
10. Redemption provisions, if any.
11. Settlement date.
12. Price (including currency).
13. Agent's commission, determined as provided
in Schedule I of the Distribution Agreement.
14. Whether the Note is issued at an original
issue discount, and, if so, the total amount
of OID, the yield to maturity and the
initial accrual period OID.
15. If the Note is an Amortizing Note, the
repayment provision.
B. The Company will advise State Street by telephone
(confirmed in writing at any time on the sale
date) or electronic transmission of the
information set forth in Settlement Procedure "A"
above and the name of the soliciting Agent. Each
such communication by the Company shall constitute
a representation and warranty by the Company to
State Street, the Trustee and the soliciting Agent
that (i) such Note is then, and at the time of
issuance and sale thereof will be, duly authorized
for issuance and sale by the Company, (ii) such
Note will conform with the terms of the Indenture
and (iii) upon authentication and delivery of such
Note, the aggregate principal amount of all Notes
issued under the Indenture will not exceed U.S.
$5,000,000,000 or the equivalent thereof in other
currencies.
A-32
EXHIBIT A
C. The Company will deliver to State Street a pre-
printed four-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
Agents, State Street and the Trustee:
1. Note with customer confirmation.
2. Stub One--For Authenticating Agent.
3. Stub Two--For Soliciting Agent.
4. Stub Three--For the Company.
D. The Authenticating Agent will complete such Note
and will authenticate such Note and deliver it
(with the confirmation) and Stubs One and Two to
the soliciting Agent in the case of: (a) Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, to
NSCC at 00 Xxxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xx Xxxxxxxx; (b)
Chase Securities Inc. at 00 Xxxxx Xxxxxx, Xxxx
000, Xxx Xxxx, Xxx Xxxx, Attention: Windows 17 and
18, (c) Citicorp Securities, Inc., at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxxx; (d) First Chicago Capital Markets, Inc.,
c/o Bankers Trust, 00 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx 00, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxx Xxxxxx; (e) Xxxxxxx, Xxxxx and Co. at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxx, Receive and Deliver; (f) Xxxxxx Brothers
Inc. c/o Chemical Bank, Four New York Plaza,
Ground Floor, Receive Window, FAO Xxxxxx Brothers,
New York, New York Attention: Xxxxxxxx Xxxxx; (g)
X.X. Xxxxxx Securities Inc., at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx;
(h) Xxxxxxx Xxxxxx Read LLC, at 000 Xxxxxxxxxx
Xxxx., Xxxxxxxx, XX 00000, Attention: Xxxxx Xxxxx,
(i) BancAmerica Xxxxxxxxx Xxxxxxxx Inc., c/o The
Bank of New York, Xxx Xxxx Xxxxxx, 3rd floor,
Window B, Attn: Xxx Xxxxxxxxx, New York, New York,
10286, A/C# 016854; and (j) Credit Suisse First
Boston Corporation, at Five World Trade Center,
7th Floor, New York, New York
A-33
EXHIBIT A
10048, Attention: Xxxx Xxxxx, and such Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Authenticating Agent. Such delivery will be made
only against receipt of evidence that instructions
have been given by the soliciting Agent for
payment to the account of the Company at Mellon
Bank, Pittsburgh, Pennsylvania (Account No. 183-
5261, in the name of Xxxxxx Financial Inc.), or
such other bank as the Company may designate, in
funds available for immediate use, of an amount
equal to the price of such Note less such Agent's
commission.
E. The soliciting Agent will deliver such Note (with
the confirmation) to the customer against payment
in immediately payable funds. The soliciting Agent
will obtain the acknowledgment of receipt of such
Note by retaining Stub Two.
F. State Street will send Stub Three to the Company
by first-class mail. Periodically, State Street
will also send to the Company a statement setting
forth the principal amount of the Notes
Outstanding as of that date under the Indenture
and setting forth a brief description of any sales
of which the Company has advised State Street but
which have not yet been settled.
Settlement Procedures
Timetables: For orders of Certificated Notes by Agent, as agent,
and accepted by the Settlement Company, Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York
City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the sale date
B 3:00 P.M. on the sale date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
A-34
EXHIBIT A
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the soliciting Agent
will notify the Company and State Street by telephone
and return such Note to the Authenticating Agent (if
other than State Street). Upon receipt of such notice,
the Company will immediately wire transfer to the
account of the soliciting Agent an amount equal to the
amount previously credited to the account of the
Company in respect of such Note. Such wire transfer
will be made on the settlement date, if possible, and
in any event not later than the Business Day following
the settlement date. If the failure shall have occurred
for any reason other than a default by the soliciting
Agent in the performance of its obligations hereunder
and under the Distribution Agreement, then the Company
will reimburse such Agent or State Street, as
appropriate, on an equitable basis for its loss of the
use of the funds during the period when they were
credited to the account of the Company. Immediately
upon receipt of the Certificated Note in respect of
which such failure occurred, the Authenticating Agent
will cancel such note in accordance with the Indenture
and so advise the Company and State Street, and State
Street will make appropriate entries in its records.
Trustee and State Street
Not to Risk Funds: Nothing herein shall be deemed to require the Trustee
or State Street to risk or expend its own funds in
connection with any payment to the Company, or any
Agent or the purchaser, it being understood by all
parties that payments made by the Trustee or State
Street to either the Company or an Agent shall be made
only to the extent that funds are provided to the
Trustee or State Street for such purpose.
Authenticity to
Signatures: The Company will cause the Authenticating Agent to
furnish the Agents from time to time with the specimen
signatures of each of the Authenticating Agent's
officers, employees or agents who has been authorized
by the Authenticating Agent to authenticate
Certificated Notes, but the Agents will have no
obligation or liability to the Company or the
Authenticating Agent in respect of the authenticity of
the signature of any officer, employee or agent of the
Company or the Authenticating Agent on any Certificated
Note.
A-35
EXHIBIT A
Payment of Expenses: Each Agent shall forward to the Company from time to
time a statement of the out-of-pocket expenses incurred
by such Agent that are reimbursable to it pursuant to
the terms of the Distribution Agreement. The Company
will remit payment to the Agents promptly after
submission of such a statement.
Advertising Costs: The Company will determine with the Agents the form,
substance and amount of advertising that may be
appropriate in soliciting orders to purchase the
Certificated Notes. Advertising expenses will be paid
by the Company or reimbursed to the Agents by the
Company.
A-36
EXHIBIT B
XXXXXX FINANCIAL, INC.
Medium Term Notes, Series I
Due From 9 Months to 30 Years from Date of Issue
TERMS AGREEMENT
_____________, 19__
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Subject in all respects to the terms and conditions of the Distribution
Agreement dated __________________ between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, BancAmerica Xxxxxxxxx Xxxxxxxx, Xxxxx Securities Inc., Citicorp
Securities, Inc., Credit Suisse First Boston Corporation, First Chicago Capital
Markets, Inc., Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers Inc., X.X. Xxxxxx
Securities Inc. and Warburg Dillon Read LLC and you (the "Agreement"), the
undersigned agrees to purchase the following Notes of Xxxxxx Financial, Inc.:
Aggregate Principal Amount:
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Date(s):
If Floating Rate Note:
Base Rate:
Initial Interest Rate:
Interest Reset Period(s):
Interest Payment Period(s):
Interest Payment Date(s):
Interest Determination Date(s):
EXHIBIT B
Index Maturity:
Spread, if any:
Spread Multiplier, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Calculation Agent:
Stated Maturity Date:
Purchase Price: ___% of Principal Amount
Settlement Date and Time:
Currency of Denomination:
Currency of Payment:
If Currency Indexed Note:
Face Amount:
Indexed Currency:
Base Exchange Rate:
Determination Agent:
If Amortizing Note:
Repayment provisions:
Optional Redemption, if any:
Initial Redemption Date:
B-2
EXHIBIT B
Redemption Price: initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial Redemption Date
until the Redemption Price is 100% of the Principal Amount.
Optional Repayment, if any:
Optional Repayment Dates:
Optional Repayment Prices:
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
Modification, if any, in the requirements to deliver the documents specified in
Section 5(B)(b) of the Agreement:
Period during which additional Notes may not be sold pursuant to Section
4(m) of the Agreement:
Other Provisions:
[___________________________]
By:
-------------------------
Accepted:
XXXXXX FINANCIAL, INC.
By:
-------------------------
Title:
----------------------
B-3
EXHIBIT C
FORM OF OPINION OF COUNSEL TO
XXXXXX FINANCIAL, INC.
The opinion of counsel for the Company, to be delivered pursuant to Section
4(j), 5(A)(b) or 5(B)(b) of the Distribution Agreement, shall be to the effect
set forth below. In addition, such opinion shall cover such other matters as the
Agent may reasonably require. All references to the "Registration Statement"
shall be to the Registration Statement as amended as of the date of such
opinion, and all references to the "Note Prospectus" shall be to the Note
Prospectus as amended and supplemented as of the date of such opinion.
(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 under the laws of such State to own its properties
and conduct its business as described in the Note Prospectus; is duly qualified
to do business as a foreign corporation in good standing in each state or other
jurisdiction in which, in the opinion of such counsel, such qualification is
required, or if in any jurisdiction the Company is not so qualified, the failure
so to qualify does not, considering all such cases in the aggregate, involve a
material risk to the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole; all of the
issued and outstanding shares of capital stock of each subsidiary of the
Company, other than those which, considered in the aggregate as a single
subsidiary, would not constitute a significant subsidiary (as defined in Rule 1-
02(v) of Regulation S-X promulgated by the Commission), which are owned by the
Company, are owned by the Company free and clear of all claims, liens,
encumbrances and security interests; each of such subsidiaries of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is
qualified to do business and is in good standing in each state or other
jurisdiction in the United States in which, in the opinion of such counsel, such
qualification is required, or if in any jurisdiction any such subsidiary is not
so qualified, the failure so to qualify does not, considering all such cases in
the aggregate, involve a material risk to the business, properties, financial
position or results of operations of the Company and its subsidiaries, taken as
a whole;
(ii) The Indenture has been duly authorized, executed, and delivered,
has been qualified under the Trust Indenture Act, and constitutes a valid and
legally binding instrument in accordance with its terms; the Notes have been
duly authorized, and, when executed and authenticated as specified in the
Indenture and delivered pursuant to the provisions of this Agreement will
constitute, valid and legally binding obligations of the Company in accordance
with their terms and the terms of the Indenture, 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 Notes and the Indenture conform to the description thereof in the Note
Prospectus;
(iii) The Registration Statement has become effective under the Act
and to the best knowledge of such counsel no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or, to the knowledge of such counsel,
threatened by the Commission;
EXHIBIT C
(iv) The Registration Statement and the Note Prospectus, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture Act and the rules
and regulations thereunder; such counsel does not believe that the Registration
Statement, at the time it became effective and as of the date of the opinion, or
the Note Prospectus or any amendment or supplement thereto, as of the date of
the Distribution Agreement or the date of the opinion, contained or contains 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;
and the documents incorporated by reference in the Registration Statement or
Note Prospectus, when they became effective under the Act or were filed with the
Commission under the Exchange Act, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data included in any of the documents mentioned in
this clause;
(v) To the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Note Prospectus, and there is
no contract or other document of a character required to be described in the
Registration Statement or Note Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements included or
incorporated in the Note Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize such matters;
(vi) The Distribution Agreement and any Terms Agreement have been duly
authorized, executed and delivered by the Company;
(vii) The Exchange Rate Agent Agreement and the Determination Agent
Agreement, each dated as of the date hereof and entered into by the Company and
State Street Bank and Trust Company, as Exchange Rate Agent and Determination
Agent, respectively, have each been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery by the
party thereto other than the Company) constitute the valid and legally binding
obligations of the Company, enforceable in accordance with their respective
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;
(viii) The Paying Agent and Securities Registrar Agreement dated as of
the date hereof and entered into by the Company and State Street Bank and Trust
Company, has been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery by the party thereto
other than the Company)
C-2
EXHIBIT C
constitutes the valid and legally binding obligation of the Company, 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;
(ix) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Notes by the Company, except such as have been obtained under the
Act and the Trust Indenture Act and such as may be required under state
securities laws in connection with the sale of the Notes;
(x) None of the issuance and sale of the Notes, the performance of the
obligations of the Company under the Notes, the Indenture, this Agreement and
any Terms Agreement, the consummation of any of the other transactions
contemplated in this Agreement and any Terms Agreement or the fulfillment of the
terms of this Agreement and any Terms Agreement will conflict with, result in a
breach of, or constitute a default under the charter or by-laws of the Company
or the terms of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a party or bound,
or any order or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries.
C-3
EXHIBIT D
FORM OF LETTER OF
XXXXXX XXXXXXXX LLP
INDEPENDENT ACCOUNTANTS TO THE COMPANY
All references to the "Registration Statement" shall be to the Registration
Statement, as amended as of the date of such letter, and all references to the
"Note Prospectus" shall be to the Note Prospectus as amended or supplemented as
of the date of such letter.
(1) In their opinion, the audited financial statements and financial
statement schedules of the Company and its consolidated subsidiaries included or
incorporated in the Registration Statement and the Note Prospectus and reported
on by them 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;
(2) On the basis of a reading of the amounts included or incorporated in
the Registration Statement and the Note Prospectus in response to Item 301 of
Regulation S-K promulgated by the Commission and of the latest unaudited
financial statements made available by the Company and its subsidiaries, their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited interim financial
information; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes (or drafts thereof where approved
minutes were not available) of the meetings of the stockholders, directors and
executive committees of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements included or incorporated in
the Registration Statement and the Note Prospectus, nothing came to their
attention which caused them to believe that:
(a) The amounts in the "Selected Financial Data" included or
incorporated in the Registration Statement and the Note Prospectus, do not agree
with the corresponding amounts in the audited or the unaudited financial
statements from which such amounts were derived, except that, with respect to
the amounts representing the ratio of earnings to fixed charges for each period
presented, such amounts are not accurately derived from worksheets prepared by
the Company;
(b) Any unaudited financial statements of the Company and its
subsidiaries included or incorporated in the Registration Statement and the Note
Prospectus do not comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; or such unaudited
financial statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
EXHIBIT D
audited financial statements included or incorporated in the Registration
Statement and the Note Prospectus; or
(c) With respect to the period subsequent to the date of the most
recent financial statements included or incorporated in the Registration
Statement and the Note Prospectus, there was, at a specified date not more than
five business days prior to the date of the letter, any change in the capital
stock or any increase in the total short-term or total long-term debt of the
Company and its consolidated subsidiaries or there were, as of the month-end
date prior to the date of the letter for which financial statements of the
Company and its consolidated subsidiaries are available, any decreases in its
consolidated total assets or its stockholders' equity, in each case as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Note Prospectus, or for the
period from the date of the most recent financial statements included or
incorporated in the Registration Statement and the Note Prospectus to such
month-end date there were any decreases, as compared with the corresponding
period in the preceding year, in total revenue or income before income taxes or
in the total income of the Company and its consolidated subsidiaries, except in
all instances for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Agent; or
(d) The amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Note Prospectus
do not agree with the amounts set forth in the unaudited financial statements
for the same periods or were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and the Note Prospectus;
and
(3) They have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company) set
forth or incorporated in the Registration Statement and the Note Prospectus, and
in Exhibit 12 to the Registration Statement, including the information included
or incorporated in Items 1 and 7 of the Company's annual report on Form 10-K,
incorporated therein, or in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in any of the
Company's quarterly reports on Form 10-Q incorporated therein, agrees with the
accounting records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
D-2
