Exhibit 1.2
ALBERTSON'S, INC.
$
MEDIUM-TERM NOTES
-------------
DISTRIBUTION AGREEMENT
, 199
-------------- --
XXXXXXX, SACHS & CO.
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
X.X. XXXXXX SECURITIES INC.
00 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
WORLD FINANCIAL CENTER
XXXXX XXXXX
XXX XXXX, XXX XXXX 00000-0000
Dear Sirs:
Albertson's, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to the amount of debt securities registered under the
Registration Statement (as defined in Section 1(a) hereof) reduced by the
aggregate amount of debt securities so registered to be or that have been sold
otherwise than pursuant to this Agreement or any Terms Agreement (as defined
below) and agrees with each of you (individually, an "Agent", and collectively,
the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement,
which may take the form of an oral agreement confirmed in writing to the Company
by such Agent or a written agreement substantially in the form of Annex I hereto
(each a "Terms Agreement"), relating to such sale in accordance with Section
2(b) hereof.
The Securities will be issued under an indenture, dated as of May 1, 1992
(the "Indenture"), between the Company and First Trust of New York, N. A., as
successor in interest to the corporate trust business of Xxxxxx Guaranty Trust
Company of New York, and Trustee (the "Trustee") under the Indenture. The
Securities shall have the maturity ranges, interest rates, if any, redemption
provisions and other terms set forth in the Prospectus referred to below as
it may be amended or supplemented from time to time. The Securities will be
issued, and the terms and rights thereof established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent that:
(a) A registration statement on Form S-3 in respect of $500,000,000
aggregate principal amount of debt securities of the Company, including the
Securities, has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to such
Agents, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, has
been declared effective by the Commission in such form; no other document
with respect to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective but excluding the Form T-1 (as hereinafter defined) and, if
applicable, including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act,
each as amended at the time such part of the registration statement became
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus
that sets forth only the terms of a particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities sold pursuant to this
Agreement, in the form filed with the Commission pursuant to Rule 424(b)
under the Act and in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of such filing).
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and any
further documents so filed and incorporated by reference in the Prospectus,
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to state
a material fact required to be state therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by any Agent expressly for use in the Prospectus as
amended or supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendment or supplement to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Prospectus as amended or supplemented to relate to a particular
issuance of Securities or the information contained in the Statement of
Eligibility and Qualification of the Trustee under the Trust Indenture Act
filed as an exhibit to the Registration Statement (the "Form T-1");
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood, windstorm, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described in the
Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) None of the Company's subsidiaries is required pursuant to Item 601
of Regulation S-K to be listed in Exhibit 21 to the Registration Statement
or to the Company's Annual Report on Form 10-K for the most recent fiscal
year.
(h) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and constitutes
a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating
to or affecting creditors' rights generally and to general principles of
equity; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained
in the Prospectus as amended or supplemented to relate to such issuance of
Securities;
(i) The issue and sale of the Securities, the compliance by the Company
with all of the provisions of the Securities, the Indenture, this Agreement
and any Terms Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended, or the
By-Laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any court or governmental
agency or body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have been
prior to the Commencement Date (as defined in Section 3 hereof), obtained
under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the solicitation by
such Agent of offers to purchase Securities from the Company and with
purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(j) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is the subject, which are required to be disclosed in the
Prospectus, or which could reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and
(k) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities which shall
have been issued and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. (a) On the basis of the representations and warranties, and subject to
the terms and conditions herein set forth, each of the Agents hereby severally
and not jointly agrees, as agent of the Company, to use its reasonable efforts
to solicit and receive offers to purchase the Securities from the Company upon
the terms and conditions set forth in the Prospectus as amended or supplemented
from time to time. So long as this Agreement shall remain in effect with respect
to any Agent, the Company shall not, without the consent of such Agent, solicit
or accept offers to purchase, or sell, any debt securities with a maturity at
the time of original issuance of 9 months to 30 years except pursuant to this
Agreement, any Terms Agreement, or except pursuant to a private placement not
constituting a public offering under the Act or except in connection with a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities. However, the
Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf and, in the case of any such
sale not resulting from a solicitation made by any Agent, no commission will be
payable with respect to such sale. These provisions shall not limit Section 4(f)
hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation offers to purchase
Securities from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed. During such period, the Company
shall not be required to comply with the provisions of Sections 4(h), 4(i), 4(j)
and 4(k). Upon advising the Agent that such solicitation may be resumed,
however, the Company shall simultaneously provide the documents required to be
delivered by Sections 4(h), 4(i), 4(j) and 4(k), and the Agent shall have no
obligation to solicit offers to purchase the Securities until such documents
have been received by the Agent. In addition, any failure by the Company to
comply with its obligations hereunder, including without limitation its
obligations to deliver the documents required by Sections 4(h), 4(i), 4(j) and
4(k), shall automatically terminate the Agent's obligations hereunder, including
without limitation its obligations to solicit offers to purchase the Securities
hereunder as agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of settlement
of any sale of a Security by the Company as a result of a solicitation made by
such Agent, in an amount equal to the following applicable percentage of the
principal amount of such Security sold:
COMMISSION
(PERCENTAGE OF
AGGREGATE
PRINCIPAL AMOUNT
RANGE OF MATURITIES OF SECURITIES SOLD)
From 9 months to less than 1 year . . . . . . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . . . . . . . .150%
From 18 months to less than 2 years . . . . . . . . . . . . . . . . .200%
From 2 years to less than 3 years . . . . . . . . . . . . . . . . . .250%
From 3 years to less than 4 years . . . . . . . . . . . . . . . . . .350%
From 4 years to less than 5 years . . . . . . . . . . . . . . . . . .450%
From 5 years to less than 6 years . . . . . . . . . . . . . . . . . .500%
From 6 years to less than 7 years . . . . . . . . . . . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . . . . . . . . . . . .600%
From 10 years to less than 15 years . . . . . . . . . . . . . . . . .625%
From 15 years to less than 20 years . . . . . . . . . . . . . . . . .675%
20 years and more . . . . . . . . . . . . . . . . . . . . . . . . . .750%
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent. The commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such
Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be purchased
by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation, 000
Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, at 8:00 a.m., California time, on the
date of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall
be disapproved by any Agent promptly after reasonable notice thereof or (B)
after the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of Delivery
which shall be disapproved by any Agent party to such Terms Agreement or so
purchasing as principal promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file such
Pricing Supplement pursuant to Rule 424(b)(3) under the Act not later than
the close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used; (iii) to make no
amendment or supplement to the Registration Statement or the Prospectus,
other than any Pricing Supplement, at any time prior to having afforded each
Agent a reasonable opportunity to review and comment thereon; (iv) to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise such Agent, promptly
after the Company receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of
the qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amendment or supplement of the
Registration Statement or the Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein
for as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement and
each amendment thereto, with copies of the Prospectus as each time amended
or supplemented, other than any Pricing Supplement (except as provided in
the Administrative Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, and with copies of the
documents incorporated by reference therein, all in such quantities as such
Agent may reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities (including Securities purchased from the Company by such
Agent as principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify such Agent and request such Agent, in its capacity as agent of the
Company, to suspend solicitation of offers to purchase Securities from the
Company (and, if so notified, such Agent shall cease such solicitations as
soon as practicable, but in any event not later than one business day
later); and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, to
so advise such Agent promptly by telephone (with confirmation in writing)
and to prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or the Prospectus as
then amended or supplemented that will correct such statement or omission or
effect such compliance; provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by such
Agent as principal or such Agent is otherwise required to deliver a
prospectus in respect of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an amendment or
supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such Agent
copies of all reports or other communications (financial or other) furnished
to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
public information concerning the business and financial condition of the
Company as such Agent may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or other
agreement by such Agent to purchase Securities as principal and continuing
to and including the earlier of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the
Company by such Agent and (ii) the related Time of Delivery, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which both mature more than 9 months after such Time of Delivery and
are substantially similar to the Securities, without the prior written
consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and correct
as of the date of such acceptance or of such Terms Agreement, as the case
may be, as though made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the settlement
date for the Securities relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made at and as
of such date (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration Statement
or the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time a document filed under the Act or the Exchange Act
is incorporated by reference into the Prospectus, and each time the Company
sells Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of an opinion or opinions by
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the
Agents, as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish to such counsel such papers and
information as they may reasonably request to enable them to furnish to such
Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Company sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to such Agent a
written opinion of Xxxxxx X. Xxxxxx, Esq., Executive Vice President,
Administration and General Counsel to the Company, or other counsel for the
Company reasonably satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such
sale, as the case may be, in form reasonably satisfactory to such Agent,
to the effect that such Agent may rely on the opinion of such counsel
referred to in Section 6(c) hereof which was last furnished to such Agent to
the same extent as though it were dated the date of such letter authorizing
reliance (except that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion of the
same tenor as the opinion of such counsel referred to in Section 6(c)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date.
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus, in
either case to set forth financial information included in or derived from
the Company's consolidated financial statements or accounting records, and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of a
letter under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 6(d) hereof
but modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available as of a
date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as though
made at and as of such date, rather than repeat, statements with respect to
such financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, and each time the Company sells Securities to
such Agent as principal and the applicable Terms Agreement specifies the
delivery of a certificate under this Section 4(k) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a certificate,
dated the date of such supplement, amendment, incorporation or Time of
Delivery relating to such sale, as the case may be, in such form and
executed by such officers of the Company as shall be satisfactory to such
Agent, to the effect that the statements contained in the certificate
referred to in Section 6(g) hereof which was last furnished to such Agent
are true and correct at such date as though made at and as of such date
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or,
in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(g) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and
(l) To offer to any person who has agreed to purchase Securities as the
result of an offer to purchase solicited by such Agent the right to refuse
to purchase and pay for such Securities if, on the related settlement date
fixed pursuant to the Administrative Procedure, any condition set forth in
Section 6(a), 6(e) or 6(f) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the satisfaction
of the condition shall be substituted, for purposes of this Section 4(l),
for the respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(a), 6(e) and 6(f), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment permitted
under such Sections 6(a), 6(e) and 6(f) on behalf of any such person).
5. The Company covenants and agrees with each Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the reasonable fees, disbursements and expenses of counsel for the
Agents in connection with the establishment of the program contemplated hereby,
any opinions to be rendered by such counsel hereunder and the transactions
contemplated hereunder; (iii) the cost of printing, producing or reproducing
this Agreement, any Terms Agreement, any indenture, any Blue Sky Survey, any
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iv) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities and Blue Sky laws as provided in Section 4(b) hereof, including
the reasonable fees and disbursements of counsel for the Agents in connection
with such qualification and in connection with the Blue Sky Survey and the Legal
Investment Memoranda; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of counsel for any Trustee
or such agent in connection with any indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
by the Company; and (x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. Except as provided in Sections 7 and 8 hereof, each Agent shall
pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein, (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 4(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) Wilson, Sonsini, Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel to the Agents, shall have furnished to such Agent (i) such opinion
or opinions, dated the Commencement Date, with respect to the incorporation
of the Company, the validity of the Indenture, the Securities, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as such Agent may reasonably request, and (ii) if and to the
extent requested by such Agent, with respect to each applicable date
referred to in Section 4(h) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, an opinion or opinions, dated
such applicable date, to the effect that such Agent may rely on the opinion
or opinions which were last furnished to such Agent pursuant to this Section
6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same
tenor as the opinion or opinions referred to in clause (i) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date, and in each case such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel for the Company, or
other counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent their written opinion, dated the Commencement Date
and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance reasonably satisfactory to such Agent, to the effect
that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described in
the Prospectus as amended or supplemented; and the Company has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification and where the failure to be so qualified or
in good standing would have a material adverse effect on the operations
or financial condition of the Company and its subsidiaries, taken as a
whole;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
to which any property of the Company or any of its subsidiaries is the
subject which are required to be disclosed in the Prospectus, or which
could reasonably be expected, individually or in the aggregate, to have
a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(v) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, when executed by the
Company and authenticated by the Trustee in the manner provided for in
the Indenture and delivered against the purchase price therefor
specified herein, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture; and
the Indenture conforms and the Securities will conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery
by the Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, moratorium
and other similar laws relating to or affecting creditors' rights
generally and to general principles of equity; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Terms Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
known to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, which conflict, breach or default would singly or
in the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws, as amended, of the Company
or any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by an Agent of offers to purchase Securities from the
Company and with purchases of Securities by an Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, 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, and they have no reason to
believe that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, 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, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement of
a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading;
and
(x) The Registration Statement and the Prospectus as amended and
supplemented and any further amendments and supplements thereto made by
the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust indenture Act and the rules and
regulations thereunder; they have no reason to believe that, as of its
effective date the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of the date of such opinion, the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the date of such
opinion (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Not later than 10:00 a.m., New York time, on the Commencement Date
and on each applicable date referred to in Section 4(j) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date, as the case may
be, in form and substance reasonably satisfactory to such Agent, to the
effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended or supplemented
any loss or interference with its business from fire, explosion, flood,
windstorm, accident or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented and (ii) since the respective dates as of which information is
given in the Prospectus as amended or supplemented there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented, the effect of which, in any such case described
in clause (i) or (ii) is, in the reasonable judgment of such Agent, so
material and adverse as to make it impracticable or inadvisable to proceed
with the solicitation by such Agent of offers to purchase Securities from
the Company or the purchase by such Agent of Securities from the Company as
principal, as the case may be, on the terms and in the manner contemplated
in the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York state
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in your reasonable judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; (iv) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2)under the Act; or
(v) a public announcement by any such organization that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities; and
(g) The Company shall have furnished or cause to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date
and each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
such form and executed by such officers of the Company as shall be
reasonably satisfactory to such Agent, as to the accuracy of the
representations and warranties of the Company herein at and as of the
Commencement Date or such applicable date, as the case may be, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsections (a) and (e) of
this Section 6, and as to such other matters as such Agent may reasonably
request.
7. (a) The Company will indemnify and hold harmless each Agent against any
losses, claims, damages or liabilities, joint or several, to which such Agent
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any reasonable legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and, provided, further, that the Company shall not be
liable to any Agent under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus to the extent that any such loss, claim,
damage or liability of such Agent results from the fact that such Agent sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
such delivery is required under the Act if the Company has previously furnished
copies thereof to such Agent and the loss, claim, damage or liability of such
Agent results from an untrue statement of a material fact contained in the
Preliminary Prospectus which was corrected in such Prospectus as then amended or
supplemented.
(b) Each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the offering of
the Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and each Agent on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent on the
other shall be deemed to be in the same proportion as the total net proceeds
from the sale of Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by any Agent
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by per capita allocation (even
if all Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
an Agent shall not be required to contribute any amount in excess of the amount
by which the total public offering price at which the Securities purchased by or
through it were sold exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under this subsection
(d) to contribute are several in proportion to the respective purchases made by
or through it to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Agent within
the meaning of the Act; and the obligations of each Agent under this Section 7
shall be in addition to any liability which such Agent may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the Company
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties and
other statements by any Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of offers
to purchase Securities from the Company may be suspended or terminated at any
time by the Company as to any Agent or by any Agent as to such Agent upon the
giving of written notice of such suspension or termination to such Agent or the
Company, as the case may be. In the event of such suspension or termination with
respect to any Agent, (x) this Agreement shall remain in full force and effect
with respect to any Agent as to which such suspension or termination has not
occurred, (y) this Agreement shall remain in full force and effect with respect
to the rights and obligations of any party which have previously accrued or
which relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such suspension or termination and (z)
in any event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing;
and if to Xxxxxxx, Xxxxx & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Registration Department; and if to X.X. Xxxxxx Securities Inc. shall
be sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile
Transmission No. (000) 000-0000, Attention: Xxxxx Xxxxxx; and if to Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to World Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Facsimile Transmission No. (000) 000-0000, Attention: MTN Product
Management; and if to the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 000 Xxxxxxxxxx
Xxxxxxxxx, X.0. Xxx 00, Xxxxx, Xxxxx 00000, Facsimile Transmission No.
208) 385-6539, Attention: Chief Financial Officer.
12. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Company, and to the extent provided
in Section 7, Section 8 and Section 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
XXXXXXXXX'X, INC.
By:
----------------------------------------
Name:
Title:
Accepted in New York, New York, as of the date hereof:
XXXXXXX, XXXXX & CO.
------------------------------------
(Xxxxxxx, Sachs & Co.)
X.X. XXXXXX SECURITIES INC.
By:
---------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:
---------------------------------
Name:
Title:
ANNEX I
XXXXXXXXX'X, INC.
$
[TITLE OF SECURITY]
-------------
TERMS AGREEMENT
, 19
-------------- ----
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Xxxxxxxxx'x, Inc. (the "Company") proposes, subject to the terms and
conditions stated herein and in the Distribution Agreement dated ___________,
199__ (the "Distribution Agreement"), between the Company on the one hand and
Xxxxxxx, Xxxxx & Co., X.X. Xxxxxx Securities Inc. and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Agents") on the other, to issue and sell to
[Xxxxxxx, Sachs & Co.] [X.X. Xxxxxx Securities Inc.] [Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated] the securities specified in the Schedule hereto
(the "Purchased Securities"). Each of the provisions of the Distribution
Agreement not specifically related to the solicitation by the Agents, as agents
of the Company, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase securities
from the Company, solely by virtue of its execution of this Terms Agreement.
Each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
I-1
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Distribution
Agreement incorporated herein by reference, the Company agrees to issue and sell
to [Xxxxxxx, Sachs & Co.] [X.X. Xxxxxx Securities Inc.] [Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated] and [Xxxxxxx, Sachs & Co.] [X.X. Xxxxxx Securities
Inc.] [Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] agree(s) to purchase
from the Company the Purchased Securities, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
I-2
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
XXXXXXXXX'X, INC.
By:
-------------------------------
Name:
Title:
Accepted:
[XXXXXXX, XXXXX & CO.
-------------------------------
(Xxxxxxx, Sachs & Co.)]
[X.X. XXXXXX SECURITIES INC.
By:
----------------------------
Name:
Title: ]
[XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:
----------------------------
Name:
Title: ]
I-3
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes
Aggregate Principal Amount:
[$ or units of other Specified Currency]
Purchase Price by [Xxxxxxx, Sachs & Co.] [X.X. Xxxxxx Securities Inc.] [Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] :
% of the principal amount of the Purchased Securities [, plus accrued
interest from to ] [and accrued amortization, if any, from
to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of May 1, 1992, between the Company and First Trust of
New York, N.A., as Trustee and successor in interest to the corporate trust
business of Xxxxxx Guaranty Trust Company of New York.
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
Interest Payment Dates:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section 4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
I-4
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-5
ANNEX II
XXXXXXXXX'X, INC.
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated __________, 199___(the "Distribution Agreement"),
between Xxxxxxxxx'x, Inc. (the "Company") and Xxxxxxx, Xxxxx & Co. , X.X. Xxxxxx
Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(together, the "Agents"), to which this Administrative Procedure is attached as
Annex II. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Certificated Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Book-Entry Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
II-1
Acceptance of Offers by Company
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the Interest Rate and the
initial Interest Payment Date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Certificated Security, such of the following as
are applicable;
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
II-2
(11) If a Floating Rate Certificated Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement; and
(14) Book-Entry Security or Certificated Security.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement. The Company will supply at least ten copies
of such Pricing Supplement to the Selling Agent or Purchasing Agent, as the case
may be, not later than 5:00 p.m., New York City time, on the business day
following the date of acceptance of such offer, or if the Company and the
Purchaser agree to settlement on the date of such acceptance, not later than
noon, New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth business day following the date on which
such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated
II-3
Security prior to or together with the earlier of the delivery to such purchaser
or its agent of (a) the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing Agent and
accepted by the Company will be settled on a date (the "Settlement Date") which
is the fifth business day after the date of acceptance of such offer, unless the
Company and the purchaser agree to settlement (a) on any other business day
after the acceptance of such offer or (b) with respect to an offer accepted by
the Company prior to 10:00 a.m., New York City time, on the date of such
acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee. All instructions regarding the completion and delivery of
Certificated Securities shall be given by the Company by means of the electronic
timesharing facility known as the Xxxxxx Paper Issue System (the "MPI System");
or such instructions may be given by telephone or by facsimile transmission
(confirmed in writing or by tested telex), tested telex or by other acceptable
written means by the Company if the MPI System is inoperative. The Company will
instruct the Trustee by facsimile transmission or other acceptable written means
to authenticate and deliver the Certificated Securities no later than 2:15 p.m.,
New York City time, on the Settlement Date. Such instruction will be given by
the Company prior to 3:00 p.m., New York City time, on the business day prior to
the Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which case such
instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by an Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided, however,
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
II-4
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-5
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of April 18, 1989 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Book-Entry Securities as a Purchasing
Agent. The Company will have the sole right to accept offers to purchase
Book-Entry Securities and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and
Settlement Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the Interest Rate and initial
Interest Payment Date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency (it being understood that currently the Depositary accepts
deposits of Global Securities denominated in U.S. dollars only);
II-6
(5) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount or
commission, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Book-Entry Security, such of the following as are
applicable;
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(11) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the registered
owner(s);
II-7
(13) Denomination of certificates to be delivered at settlement; and
(14) Book-Entry Security or Certificated Security.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the Company will communicate such Sale Information to the
Trustee. All instructions regarding the completion and delivery of Book-Entry
Securities shall be given by the Company by means of the MPI System; or such
instructions may be given by telephone or by facsimile transmission (confirmed
in writing or by tested telex), tested telex or by other acceptable written
means by the Company if the MPI System is inoperative. The Trustee will assign a
CUSIP number to the Global Security from a list of CUSIP numbers previously
delivered to the Trustee by the Company representing such Book-Entry Security
and then advise the Company and the Selling Agent or Purchasing Agent, as the
case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry Security, number
of days by which such date succeeds the record date for the
Depositary's purposes (which, in the case of Floating Rate
Securities which reset weekly shall be the date five calendar days
immediately preceding the applicable Interest Payment Date and in
the case of all other Book-Entry Securities shall be the Regular
Record Date, as defined in the Security) and, if calculable at that
time, the amount of interest payable on such Interest Payment Date;
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the
II-8
Trustee to the Depositary that (a) the Global Security representing such
Book-Entry Security has been issued and authenticated and (b) the Trustee is
holding such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at Xxxxxx Guaranty Trust Company of New York,
in New York, New York, or such other accounts as the Company may have previously
specified to the Trustee, in funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the receipt of the Sale
Information, or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than the close of business of
the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
II-9
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders accepted by the Company will be settled
on the fifth Business Day 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.
II-10
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent as agent, and
accepted by the Company for settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
SETTLEMENT
PROCEDURE TIME
---------- ----
A 5:00 p.m. On the Business Day following
the acceptance of a offer by the Company
or 10:00 a.m. on the Business Day prior
to the Settlement Date, whichever is
earlier
B 12:00 noon On the Sale Date
C 2:00 p.m. On the Sale Date
SETTLEMENT
PROCEDURE TIME
--------- ----
D 9:00 a.m. On the Settlement Date
E 10:00 a.m. On the Settlement Date
F-G 2:00 p.m. On the Settlement Date
H 4:45 p.m. On the Settlement Date
I 5:00 p.m. On the Settlement Date
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "B" and "C" shall be completed as soon as practicable but
not later than 2:00 p.m. on the first Business Day after the sale date. If the
initial interest rate for a Floating Rate Book-Entry Security has not been
determined at the time that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as such rate has been
determined but no later than 2:00 p.m. on the second Business Day 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 the SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
xxxx such Global Security "canceled", make
II-11
appropriate entries in the Trustee's records and send such canceled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or Securities
and shall be canceled immediately after issuance and the other of which shall
represent the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. The Company will reimburse
such Agent on an equitable basis for the loss of its use of funds during the
period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D" for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
II-12
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Section 4(j) and Section 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information and/or condensed financial statements derived form audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the Agents;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for the five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of earnings,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with the basis for the audited
consolidated statements of earnings, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
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(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
net assets or other items specified by the Agents, or any increases in
any items specified by the Agents, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the Agents, in
each case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by the
Agents, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents that
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Agents or in documents
incorporated by reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
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All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution Agreement as of the Commencement Date referred to in
Section 6(d) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to the
Terms Agreement requiring the delivery of such letter under Section 4(j)
thereof.
III-3
