EXHIBIT 1(b)(i)
XXXXXX FINANCIAL, INC.
$2,500,000,000
MEDIUM-TERM NOTES, SERIES G
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
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October 17, 1995
XXXXXXX XXXXX & CO., XXXXXXX, XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX 00 Xxxxx Xxxxxx
& XXXXX XXXXXXXXXXXX Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1310
CHASE SECURITIES, INC. XXXXXX BROTHERS
0 Xxxxx Xxxxxxxxx Xxxxx XXXXXX BROTHERS INC.
New York, New York 10081 Three World Financial Center
12th Floor
New York, New York 10285-1200
CHEMICAL SECURITIES, INC. X.X. XXXXXX SECURITIES INC.
000 Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 Xxx Xxxx, Xxx Xxxx 00000
CITICORP SECURITIES, INC. UBS SECURITIES INC.
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
FIRST CHICAGO CAPITAL
MARKETS, INC.
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0084
Dear Sirs:
Xxxxxx Financial, Inc., a Delaware corporation (the "Company"), confirms
its agreement with you (the "Agents") (either acting directly or through one or
more
affiliates) with respect to the issue and sale by the Company of up to
$2,500,000,000 aggregate principal amount of its Medium-Term Notes, Series G
(the "Notes"). The Notes are to be issued under an Indenture dated as of
September 1, 1995 between the Company and Shawmut Bank Connecticut, National
Association, as trustee (the "Trustee") (the "Indenture"). The Notes will have
the maturities, annual interest rates, redemption provisions and other terms
specified in a pricing supplement to the Note Prospectus referred to below.
Subject to the terms and conditions stated herein, the Company hereby
appoints each of you as an agent of the Company for the purpose of soliciting
offers to purchase the Notes; provided, however, that the Company reserves the
right to appoint additional agents and agrees to provide written notice to you
as promptly as is practicable following the execution of any applicable pricing
agreement with any such additional agents, on substantially similar terms as
are set forth herein for the purpose of soliciting offers to purchase the Notes
(the "Other Agents"); and provided further that the Company reserves the right
to sell and may accept offers to purchase the Notes directly on its own behalf.
1. Solicitations by the Agents of Offers To Purchase; Purchases as
Principals.
(a) Following the Commencement Date (referred to below), the Company
shall notify the Agents from time to time as to the commencement of a period
during which the Notes may be offered and sold by the Agents (each period,
commencing with such a notification and ending at such time as the authorization
for offers and sales through the Agents shall have been suspended by the Company
or the Agents as provided hereunder, being herein referred to as an "Offering
Period"). On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, the Agents will use
their respective reasonable best efforts to solicit offers to purchase the Notes
during each Offering Period upon the terms and conditions set forth in the Note
Prospectus as then amended and supplemented.
The Company agrees to pay each Agent, as consideration for soliciting
the sale of the Notes, in the form of a discount, a commission equal to the
applicable percentage set forth on Schedule 1 hereto of the principal amount of
each Note sold by the Company as the result of a solicitation by such Agent;
provided, however, that either the Agents or the Company may upon not less than
30 days' notice request that the commissions be renegotiated, and if no
agreement is reached within such 30-day period this Agreement shall be
terminated subject to Section 8 hereof.
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The Agents are authorized to solicit orders for the Notes only in
denominations of $1,000 or any amount in excess thereof which is a multiple of
$1,000 and, unless otherwise agreed to by the Company, at a purchase price equal
to 100% of their principal amount. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer or indication of interest received
by it to purchase Notes. The Company shall have the sole right to accept offers
to purchase the Notes and may reject any such offer in whole or in part. Each
Agent shall have the right to reject, in its discretion reasonably exercised,
any offer received by it to purchase the Notes, in whole or in part, and any
such rejection shall not be deemed a breach of its agreements contained herein.
In soliciting offers to purchase the Notes hereunder, the Agents are acting
solely as agents for the Company, and not as principals. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but no Agent shall have any liability to the Company in
the event any such purchase is not consummated for any reason. Under no
circumstances will the Agents be obligated to purchase any Notes for their own
accounts, unless a Terms Agreement has been entered into pursuant to Section
1(b) hereof.
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Medium-Term
Note, Series G, Administrative Procedures attached hereto as Exhibit A (the
"Procedures"). The Procedures may be amended only by written agreement of the
Company and the Agents.
The documents required to be delivered by Section 5 of this Agreement
shall be delivered at the office of XxXxxxxxx, Xxxx & Xxxxx, counsel for the
Agents, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on such date as may be
agreed to by the Company and the Agents (the "Commencement Date").
(b) Subject to the terms and conditions stated herein, the Company
agrees that, whenever the Company determines to sell Notes directly to an Agent
as principal for resale to others, it will enter into a Terms Agreement (which
may be either oral, to be confirmed in writing, or written) relating to such
sale in accordance with the provisions of this Section 1(b). Each sale of Notes
to an Agent as principal shall be made in accordance with the terms of this
Agreement and a supplemental agreement which will provide for the sale of such
Notes to, and the purchase and reoffering thereof by, such Agent. Each such
supplemental agreement (which shall be either oral, to be confirmed in writing,
or written, and in either case the confirmation or the supplemental agreement
shall be substantially in the form of Exhibit B hereto and may take the form of
an exchange of any standard form of written telecommunication between the
applicable Agent and the Company) is herein referred to as a "Terms Agreement".
An Agent's commitment to purchase Notes pursuant to any Terms Agreement shall be
deemed to have been
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made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall describe the Notes to be purchased pursuant thereto
by the Agent who is a party to such Terms Agreement, specify the principal
amount of such Notes, the price to be paid to the Company for such Notes, the
rate at which interest will be paid on the Notes, the date and time of delivery
of payment for such Notes (the "Purchase Date"), the place of delivery of the
Notes and payment therefor, the method of payment and any modification of the
requirements for the delivery of the opinions of counsel, the certificates from
the Company, and the letter from Xxxxxx Xxxxxxxx LLP, pursuant to Section
5(B)(b). Agents acting as principals may utilize a selling or dealer group in
connection with the resale of Notes purchased. The Agents may reallow any
portion of the commission payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Notes.
Delivery of the certificates for Notes sold to an Agent pursuant to
any Terms Agreement shall be made as agreed to between the Company and such
Agent as specified in the Terms Agreement, not later than the Purchase Date set
forth in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form
specified in the Terms Agreement.
2. Other Activities of Agents. The Company acknowledges that nothing
in this Agreement shall prohibit any Agent from (i) acting as broker for the
sale of Notes by customers other than the Company, (ii) soliciting the sale of
Notes through such Agent as broker for the seller, soliciting the sale of Notes
to such Agent as principal and soliciting offers to buy Notes, (iii) purchasing
Notes, and (iv) offering and selling as principal for its own account Notes
which such Agent has purchased.
3. Representations and Warranties. The Company represents and warrants
to, and agrees with, the Agents that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form (File No. 33-62479) for the registration under the Act of certain
debt securities, including the Notes. Such registration statement, at the time
of filing, at the time it became effective, and at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies
in all other material respects with said Rule. Such registration statement,
including the exhibits thereto, other than the Form T-1 Statements of
Eligibility and Qualification of the trustees under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), when it became effective, is
hereinafter called the "Registration Statement", and the prospectus in the form
in which it appears in the
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Registration Statement is hereinafter called the "Prospectus". The term
"preliminary prospectus" as used herein means a prospectus filed as part of any
post-effective amendment to the Registration Statement prior to the effective
date of such post-effective amendment, as contemplated in Rule 430 under the
Act. The Company proposes to file with the Commission from time to time,
pursuant to Rule 424(b) under the Act, supplements to the Prospectus, which will
describe certain terms of the Notes and prior to any such filing will advise the
Agents of all further information (financial and other) with respect to the
Company to be set forth therein. The Prospectus as so supplemented from time to
time is hereinafter called the "Note Prospectus". Any preliminary form of
supplemental prospectus which may be filed pursuant to Rule 424(b) under the Act
is hereinafter called a "preliminary supplemental prospectus". Any reference
herein to the Registration Statement, any preliminary prospectus, any
preliminary supplemental prospectus, the Prospectus, or the Note Prospectus as
amended and supplemented, shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 (except for
any documents or portions thereof which are deemed, under Rule 412 of the rules
and regulations of the Commission under the Act, not to be incorporated) which
were filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the effective date of the Registration Statement, or the
issue date of such preliminary prospectus, preliminary supplemental prospectus,
supplemental prospectus, the Prospectus or the Note Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment", or "supplement"
with respect to the Registration Statement, any preliminary prospectus, any
preliminary supplemental prospectus, any supplemental prospectus, the Prospectus
or the Note Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the effective date of the Registration
Statement or the issue date of any preliminary prospectus, any preliminary
supplemental prospectus, any supplemental prospectus, the Prospectus or the Note
Prospectus, as the case may be, deemed to be incorporated therein by reference.
(b) When the Registration Statement became effective, when any
amendment to the Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration Statement), when
any supplement to the Prospectus (other than a supplement specifying the terms
of debt securities other than the Notes) or the Note Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act, on each day during an
Offering Period, and at the time of delivery of any Notes to any purchaser or
his agent whose offer to purchase such Notes was delivered to the Company during
an Offering Period:
(i) The Registration Statement, as amended as of any such time, and
the Note Prospectus, as amended and supplemented as of any such time, and the
Indenture does and will comply in all material respects with the applicable
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requirements of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder.
(ii) Neither the Registration Statement nor the Note Prospectus, each
as amended and supplemented as of any such time, contains or will contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Note Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Agents or the Other Agents specifically for use
in the Registration Statement and the Note Prospectus or any amendment thereof
or supplement thereto.
(iii) The documents incorporated by reference in the Registration
Statement or the Note Prospectus, when they became effective or were filed with
the Commission, as the case may be, under the Exchange Act, conformed, and any
documents so filed and incorporated by reference in the Registration Statement
or the Note Prospectus, each as amended or supplemented as of any such time,
after the date of this Agreement will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act and the
Exchange Act, as applicable, and all rules and regulations of the Commission
thereunder.
(iv) The consolidated financial statements and consolidated financial
schedules of the Company and any subsidiaries included or incorporated by
reference in the Registration Statement and the Note Prospectus, each as amended
or supplemented as of any such time, fairly present the financial condition of
such companies as of the dates indicated and the results of operations and
changes in financial position for the periods therein specified in conformity
with generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise stated therein). Xxxxxx Xxxxxxxx LLP,
which has examined certain of such financial statements and schedules, as set
forth in their reports included or incorporated by reference in the Registration
Statement and the Note Prospectus, each as amended or supplemented as of any
such time, are, to the best of the Company's knowledge, independent public
accountants with respect to the Company and its subsidiaries as required by the
Act and the rules and regulations thereunder.
(v) The Company and each of its subsidiaries (other than subsidiaries
which, considered in the aggregate as a single subsidiary, would not constitute
a "significant subsidiary" as defined in Rule 1-02(v) of Regulation S-X
promulgated by the Commission) have been duly incorporated and are validly
existing as corporations in good standing under the laws of the respective
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jurisdictions of their incorporation; each of the Company and such subsidiaries
is duly licensed and duly qualified to do business as a foreign corporation and
is in good standing in all the jurisdictions in which it owns or leases
substantial properties or in which the conduct of its business requires such
qualification, except where the failure to be so qualified, considering all such
cases in the aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole; and each of the Company and such subsidiaries
has full power and authority to own its properties and conduct its business as
described in the Prospectus; all the outstanding shares of capital stock of each
such subsidiary which are owned by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned by the
Company either directly or through wholly owned subsidiaries free and clear of
any perfected security interest and any other security interests, claims, liens
or encumbrances.
(vi) The Indenture has been duly qualified under the Trust Indenture
Act and, as of the Commencement Date, will have been duly authorized, executed
and delivered; as of the Commencement Date the Notes will have been duly
authorized and, when duly executed, authenticated, issued and delivered as
contemplated hereby and by the Indenture, will constitute valid and legally
binding obligations of the Company in accordance with their terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditor's rights and to general equity
principles.
(vii) Each of the agreements listed on Schedule II hereto has been
duly authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the other party or parties
thereto) constitutes a valid and legally binding obligation of the parties
thereto enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditor's rights and to general equity principles.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) Unless you shall have been otherwise promptly notified by the
Company in writing, except as contemplated in the Note Prospectus, as amended
and supplemented as of any such time, subsequent to the respective dates as of
which information is given in the Registration Statement and the Note
Prospectus, each as amended and supplemented as of any such time, (A) there has
not been any material adverse change in the financial condition, earnings,
business or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business, (B)
neither the
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Company nor any of its subsidiaries has entered into any transaction not in the
ordinary course of business material to the Company and its subsidiaries taken
as a whole and (C) neither the Company nor any of its subsidiaries has incurred
any liabilities or obligations, direct or contingent, not in the ordinary course
of business which are material in relation to the Company and its subsidiaries
taken as a whole.
(x) Except as set forth in the Note Prospectus, as amended and
supplemented as of any such time, and except for litigation which, if determined
adversely to the Company or its subsidiaries, would not have a material adverse
effect upon the financial condition or the earnings of the Company and its
subsidiaries (taken as a whole), the Company knows of no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject; to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder and which have not been so filed or which will not be so filed as
required by the Act or such rules or regulations.
(xi) None of the issuance or sale of the Notes by the Company, the
performance of the obligations of the Company under the Notes, the Indenture and
this Agreement, the consummation by the Company of any other of the transactions
herein contemplated, or the fulfillment by the Company of the terms hereof, will
materially conflict with, result in a material breach of or constitute a
material default under any statute, the Company's charter or by-laws or the
terms of any indenture or other agreement or instrument to which the Company or
any of its subsidiaries is a party or is bound, or, to the best of the Company's
knowledge, any order or regulation applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of its
subsidiaries; no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation of the
transactions contemplated in connection with the issuance or sale of the Notes
by the Company, except such as may be required under the Act, the Trust
Indenture Act or state securities laws; and the Company has full power and
authority to authorize, issue and sell the Notes as contemplated by this
Agreement.
4. Agreements of the Company. The Company agrees with the Agents that:
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement, the Company will not file any amendment to the Registration
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Statement, any supplement to the Prospectus which would create a Note Prospectus
or any supplement to the Note Prospectus unless the Company has previously
furnished the Agents a copy thereof for their review and will not file any such
proposed amendment or supplement to which any of the Agents reasonably objects.
Subject to the foregoing sentence, the Company will promptly cause the
Prospectus together with each supplement thereto which would create a Note
Prospectus, and each Note Prospectus together with each supplement thereto, to
be transmitted to the Commission for filing pursuant to Rule 424(b) by a means
reasonably calculated to result in filing by the appropriate date, or will
promptly cause each supplement to the Prospectus or the Note Prospectus, as the
case may be, to be filed with the Commission pursuant to said Rule. The Company
will promptly advise the Agents (i) of the filing of any amendment or supplement
to the Prospectus which creates a Note Prospectus, including the filing of
documents incorporated therein by reference, (ii) of the filing of any amendment
or supplement to the Note Prospectus, including the filing of documents
incorporated therein by reference, (iii) of the filing or effectiveness of any
amendment to the Registration Statement, (iv) of any comments from the
Commission relating to or any request by the Commission for any amendment of the
Registration Statement, any amendment of or supplement to the Prospectus which
would create a Note Prospectus, or any amendment of or supplement to the Note
Prospectus, or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which,
in the reasonable opinion of counsel for the Agents or counsel for the Company,
the Registration Statement or the Note Prospectus, as then amended or
supplemented, would not reflect any facts or events which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the Registration Statement or the Note Prospectus, as then amended or
supplemented, and/or would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if, in
the reasonable opinion of either such counsel, it is necessary at any time to
amend or supplement the Registration Statement or the Note Prospectus, as then
amended or supplemented, to comply with the Act, the Company promptly will
notify the Agents and, if so notified by the Company, the Agents shall forthwith
suspend solicitation of offers to purchase Notes and cease using the Note
Prospectus, as then amended or supplemented; the Company will promptly prepare
and file with the Commission, subject to the first
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sentence of Section 4(a) above, an amendment or supplement to such Registration
Statement or Note Prospectus which will include such facts or events and/or will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Note Prospectus to the Agents in such quantities as
the Agents may reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to the Agents pursuant to Section
4(f) below in connection with the preparation or filing of such amendment or
supplement, are satisfactory in all respects to the Agents, the Agents will,
upon the filing of such amendment or supplement with the Commission or
effectiveness of an amendment to the Registration Statement, resume their
obligations to solicit offers to purchase Notes hereunder.
(c) The Company will make generally available to its security holders
as soon as practicable, but not later than 15 months after the end of a fiscal
quarter of the Company during which any Notes are sold through or purchased by
the Agents, an earnings statement of the Company (which need not be audited)
covering a 12-month period within such 15 months, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act and the rules and regulations
of the Commission issued thereunder (including Rule 158 under the Act).
(d) The Company will furnish to each Agent and counsel for the Agents,
without charge, copies of the Registration Statement, the Note Prospectus and
all amendments of and supplements to such documents (including exhibits thereto
and documents incorporated by reference therein), in each case as soon as
available and in such quantities as such Agent reasonably requests and for so
long as delivery of a prospectus by such Agent may be required under the Act,
that the Company will also furnish to each Agent and counsel for the Agents one
manually signed copy of the Registration Statement and all amendments thereto
(including in each case all Exhibits thereto) as soon as available.
(e) The Company will use its best efforts to qualify the Notes for
sale under the securities laws of such jurisdictions as the Agents may
reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes pursuant to this Agreement (except
that the Company shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process in any
State) and will arrange for the determination of the eligibility for investment
of the Notes under the laws of such jurisdictions as the Agents may reasonably
request.
(f) The Company shall furnish to each Agent such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement and the Note Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures and the
performance by the
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Company and such Agent of their respective obligations hereunder and thereunder
as such Agent may from time to time prior to the termination of this Agreement
reasonably request.
(g) The Company, whether or not any Notes are sold through or
purchased by the Agents and whether or not this Agreement is terminated, shall
pay all expenses incident to the performance of its obligations under this
Agreement, including, without limitation, the fees and disbursements of its
accountants, the cost of printing and delivery of the Registration Statement and
the Note Prospectus, all amendments and supplements thereto, the Indenture, and
all other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes, the fees and disbursements (including fees
of counsel) incurred in connection with the qualification of the Notes for sale
and determination of eligibility for investment of the Notes under the
securities or Blue Sky laws of such jurisdictions as the Agents may designate,
any filing fees of the National Association of Securities Dealers, Inc. relating
to the Notes, the fees and disbursements of the Trustee, the fees of any agency
that rates the Notes and the fees and expenses in connection with any listing of
the Notes on any stock exchange.
(h) The Company shall reimburse each Agent for any out-of-pocket
expenses (including, without limitation, advertising expenses approved by the
Company in its discretion and the reasonable fees and disbursements of counsel
to the Agents) incurred heretofore or hereafter by such Agent in connection with
the offering, purchase and sale of the Notes. Any such out-of-pocket expenses
shall be payable upon the receipt by the Company from such Agent of any itemized
statement therefor.
(i) Each time the Registration Statement or the Note Prospectus is
amended (which term for the purposes of this Section 4 shall include the filing
by the Company of materials incorporated by reference in the Registration
Statement or the Note Prospectus) or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates on the Notes or
for a change deemed immaterial in the reasonable opinion of the Agents), or the
Prospectus is supplemented to create a Note Prospectus, the Company will, at the
request of any Agent in such Agent's sole discretion, deliver or cause to be
delivered forthwith to each Agent a certificate of the Company signed by the
Chairman of the Board, the President or any Vice President and by the principal
financial or accounting officer of the Company, dated the date of the
effectiveness of such amendment or the date of filing of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the Agents,
to the effect that the statements contained in the certificate referred to in
Section 5(A)(d) that was last furnished to the Agents (either pursuant to
Section 5(A)(d) or pursuant to this Section 4(i)) are true and correct at the
time of the effectiveness of such amendment (which for the
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purposes of this Agreement in the case of the filing of materials incorporated
by reference shall be the date of the filing of such materials) or the filing of
such amendment or supplement, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement as amended at the time of effectiveness of such
amendment, and to the Prospectus or the Note Prospectus (as the case may be) as
amended and supplemented at the date of such certificate) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(A)(d) but modified, if necessary, to relate to the Registration
Statement as amended at the time of the effectiveness of such amendment, and to
the Prospectus or the Note Prospectus (as the case may be) as amended and
supplemented at the date of such certificate.
(j) Each time the Registration Statement or the Note Prospectus is
amended or supplemented, including by the filing by the Company of materials
incorporated by reference, or the Prospectus is supplemented to create a Note
Prospectus, the Company shall, at the request of any Agent in such Agent's sole
discretion, furnish to or cause to be furnished forthwith to each Agent a
written opinion of the General Counsel of the Company, or other United States
counsel to the Company reasonably satisfactory to the Agents, to the effect set
forth in Exhibit C hereto; provided, however, that such opinion need not be
furnished with respect to an amendment or supplement (i) providing solely for a
change in the interest rates on the Notes or for a change deemed immaterial in
the reasonable opinion of the Agents, or (ii) setting forth or incorporating by
reference financial statements or other information as of and for a fiscal
quarter, unless in the reasonable judgment of the Agents, such financial
statements or other information are of such a nature that an opinion of counsel
should be furnished. Any such opinion shall be dated the date of the
effectiveness of such amendment or the date of filing of such supplement, as the
case may be, in form satisfactory to the Agents. In lieu of such opinion, such
counsel may furnish to each Agent a letter to the effect that the Agents may
rely on such counsel's last opinion to the same extent as though it were dated
the date of such letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the Registration
Statement as amended at the time of the effectiveness of such amendment, and to
the Prospectus or the Note Prospectus (as the case may be) as amended and
supplemented at the date of such letter).
(k) Each time that the Registration Statement or the Note Prospectus
is amended or supplemented to set forth amended or supplemental financial
information, the Company shall, at the request of any Agent in such Agent's sole
discretion, cause Xxxxxx Xxxxxxxx LLP, its independent public accountants,
forthwith to furnish the Agents a letter, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, as the case may be, in
form satisfactory to the Agents, of the same tenor as the letter
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referred to in Section 5(A)(e) and clause (1) of Exhibit D hereto but modified
to relate to the Registration Statement and the Note Prospectus, as amended and
supplemented to the date of such letter, and of the same tenor as the portions
of the letter referred to in clauses (2) and (3) of Exhibit D hereto with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company; provided,
that if the Registration Statement or the Note Prospectus is amended or
supplemented solely to include or incorporate by reference financial information
with respect to a fiscal quarter, Xxxxxx Xxxxxxxx LLP may limit the scope of
such letter to the unaudited financial statements included in such amendment or
supplement unless any other information included or incorporated by reference
therein of an accounting, financial or statistical nature is of such a nature
that, in the reasonable judgment of the Agents, such letter should cover such
other information.
(l) Each acceptance by the Company of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent, or the applicable Agent, of the Notes
relating to such acceptance as though made at and as of each such time (and it
is understood that such representations and warranties shall relate to the
Registration Statement and the Note Prospectus as amended and supplemented to
each such time).
(m) Unless otherwise specified in a Terms Agreement, during the
period, commencing on the date of the Terms Agreement and ending on the
settlement date with respect thereto, the Company shall not, without the prior
consent of the Agent who is a party to such Terms Agreement, issue or announce
the proposed issuance of any of its debt securities, including Notes, with terms
substantially similar to those of the Notes being purchased pursuant to the
Terms Agreement.
(n) The Company will deliver to the Agents at their respective
addresses specified in Section 9 below, so long as this Agreement shall remain
in effect, copies of any published reports of the Company to its securities
holders, including, without limitation, any annual reports and quarterly reports
of the Company and any other financial reports made generally available to its
securities holders, at the same time as such reports are published or made
available to securities holders.
5. Conditions to the Obligations of the Agents. (A) The obligations
of each Agent to solicit offers to purchase the Notes pursuant to Section 1(a)
hereof will be subject to the accuracy of the representations and warranties on
the part of the Company made herein as of the date hereof, the Commencement Date
and at
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the times set forth in Section 4(l), to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to such Agent the opinions of the
General Counsel or Associate General Counsel of the Company, or other United
States counsel to the Company reasonably satisfactory to the Agents, dated the
Commencement Date, to the effect set forth in Exhibit C hereto.
(c) Such Agent shall have received from XxXxxxxxx, Will & Xxxxx,
counsel for the Agents, an opinion dated the Commencement Date with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
as amended as of the Commencement Date, the Note Prospectus, as amended and
supplemented as of the Commencement Date, and other related matters as such
Agent may reasonably require; and the Company shall have furnished to such
counsel such documents as they may request for the purpose of enabling them to
pass on such matters.
(d) The Company shall have furnished to such Agent a certificate of
the Company, signed by the Chairman of the Board, the President or any Vice
President, and by the principal financial or accounting officer of the Company
(or another officer acceptable to such Agent), dated the Commencement Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, as amended as of the date of such certificate, the Note
Prospectus, as amended and supplemented as of the date of such certificate, and
this Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the date of
such certificate with the same effect as if made on the date of such
certificate, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a condition to
the obligations of such Agent under this Agreement;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
-14-
(iii) since the date of the most recent financial statements
included in the Note Prospectus, as amended and supplemented, there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, nor any material
change in the debt maturing more than one year after the date of issue of the
Company and its consolidated subsidiaries, other than those changes reflected in
or contemplated by the Note Prospectus, as amended and supplemented as of the
date of the certificate.
(e) Xxxxxx Xxxxxxxx LLP shall have furnished to such Agent a letter or
letters, dated the Commencement Date, in form and substance satisfactory to such
Agent, confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published rules and
regulations thereunder, that the response to Item 10 of the Registration
Statement is correct insofar as it relates to them and to the effect set forth
in Exhibit D hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Note Prospectus, as amended and
supplemented, there shall not have been (i) any change or decrease specified in
the letter referred to in paragraph (A)(d) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the business
or properties of the Company and its subsidiaries, the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of such Agent,
so material and adverse as to make it impractical or inadvisable to proceed with
the soliciting of offers to purchase the Notes as contemplated by the
Registration Statement and the Note Prospectus (or, in the case of a Terms
Agreement, to proceed with the offering or the delivery of the Notes to be
purchased as contemplated by the Terms Agreement).
(g) The Company shall have furnished to such Agent such further
information, certificates and documents as such Agent may reasonably request
from time to time. Any certificate signed by any officer of the Company and
delivered to such Agent or its counsel and delivered explicitly pursuant to the
terms of this Agreement shall be deemed a representation and a warranty by the
Company to such Agent as to matters covered thereby, as if set forth therein.
(B) The obligations of an Agent to purchase Notes pursuant to any Terms
Agreement entered into by it pursuant to Section 1(b) hereof will be subject to
the accuracy of the representations and warranties on the part of the Company
herein as of the date of such Terms Agreement and as of the Purchase Date
thereunder, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements contained herein
and in such Terms
-15-
Agreement on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) Except to the extent modified by such Terms Agreement, such Agent
shall have received, appropriately updated and modified, (i) a certificate of
the Company, dated as of the Purchase Date, to the effect set forth in Section
5(A)(d), (ii) the opinion of the General Counsel or Associate General Counsel of
the Company, or other United States counsel to the Company reasonably
satisfactory to such Agent, dated as of the Purchase Date, to the effect set
forth in Section 5(A)(b), (iii) the opinion of XxXxxxxxx, Xxxx & Xxxxx, counsel
for the Agents, dated as of the Purchase Date, to the effect set forth in
Section 5(A)(c) and (iv) the letter of Xxxxxx Xxxxxxxx LLP, dated as of the
Purchase Date, to the effect set forth in Section 5(A)(e).
(c) The conditions set forth in Section 5(A)(f) shall have been
satisfied.
(d) Prior to the Purchase Date, the Company shall have furnished to
such Agent such further information, certificates and documents as such Agent
may reasonably request.
If any of the conditions specified in this Section 5(B) shall not have
been fulfilled in all material respects when and as provided in this Agreement
and in such Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement and in such Terms Agreement shall
not be in all material respects reasonably satisfactory in form and substance to
such Agent and its counsel, such Terms Agreement and all obligations of such
Agent thereunder may be canceled at, or at any time prior to, the Purchase Date
by such Agent. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person who controls any Agent within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities and
reasonable expenses (including reasonable costs of investigation), as incurred,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally
-16-
filed or in any amendment thereof, or in any preliminary prospectus, any
preliminary supplemental prospectus, the Prospectus, the Note Prospectus or in
any amendment thereof or supplement thereto, or arising out of or based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises out of
or is based upon any untrue statement or omission, or allegation thereof, which
has been made therein or omitted therefrom in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such Agent
specifically for use therein, and (ii) such indemnity with respect to any
preliminary prospectus, any preliminary supplemental prospectus, the Prospectus
or the Note Prospectus shall not inure to the benefit of such Agent (or any
person controlling such Agent), if the Company shall have delivered sufficient
quantities of the Note Prospectus, as amended and supplemented, to such Agent
within a reasonable time prior to the earlier of the delivery of the written
confirmation of the sale of such Notes or the delivery of such Notes to the
person asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Note Prospectus as so amended and
supplemented (excluding documents incorporated by reference) was not sent or
given to such person at or prior to the earlier of the delivery of the written
confirmation of the sale of such Notes or the delivery of such Notes to such
person in any case where such sending or giving of a prospectus is required by
the Act and the untrue statement or omission of a material fact contained in
such preliminary prospectus, such preliminary supplemental prospectus, such
Prospectus or such Note Prospectus was corrected in the Note Prospectus, as so
amended and supplemented, provided to such Agent. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Agent agrees to indemnify and hold harmless the Company, each
person, if any, who controls the Company within the meaning of either the Act or
the Exchange Act, each director of the Company and each officer of the Company
who signs the Registration Statement or any amendment thereto to the same extent
as the foregoing indemnity from the Company to such Agent, but only insofar as
such losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which was
made therein in reliance upon and in conformity with written information
supplied to the Company by or on behalf of such Agent with respect to such Agent
specifically for use therein. This indemnity agreement will be in addition to
any liability which the Agents may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
-17-
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
Section 6(a) or 6(b). In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (other than local counsel), approved by the
Agents in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 6 in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the relevant Agent
on the other from the offering of the Notes to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to
-18-
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and such Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Agent on the other shall be deemed to be in the same
proportion as the proceeds from the sale of such Notes (before deducting
expenses) received by the Company bear to the total commissions (total
discounts, in the case of a Terms Agreement) received by such Agent in respect
thereof pursuant to Section 1. The relative fault shall be determined by
reference to, among other things, whether the indemnified party failed to give
the notice required under paragraph (c) of this Section 6, including the
consequences of such failure, and whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the Company on the one
hand or by such Agent on the other, and the relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission,
of the Company on the one hand or such Agent on the other. The Company and the
Agents agree that it would not be just and equitable if contribution pursuant to
this paragraph (d) of this Section 6 were determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this paragraph (d) of this Section 6 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim (which shall be limited as
provided in paragraph (c) of this Section 6 if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof). Notwithstanding the provisions of this paragraph (d), no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes sold to or through it exceeds the amount of any damages
which such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls an Agent within the meaning of the Act shall have the same rights to
contribution as such Agent, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement or any amendment thereto and each
director of the Company shall have the same rights to contribution as the
Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement
-19-
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against any other party or parties under this
paragraph (d) of this Section 6, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d) of this Section 6.
7. Termination.
(a) This Agreement may be terminated at any time either by the Company
as to any of the Agents or by any of the Agents insofar as this Agreement
relates to such Agent upon the giving of written notice of such termination to
such Agent or Agents or to the Company, as the case may be. In the event of
such termination, no terminating party or party with respect to which this
Agreement is terminated shall have any liability to the other parties hereto,
except as provided in the first sentence of the second paragraph of Section 1
and Section 4(c), 4(g), 4(h), 6, 8 and 11 and except that, (i) if at the time of
termination an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or its Agent of the Note or
Notes relating thereto has not occurred or (ii) if the Agent or Agents shall
then own any Note or Notes purchased pursuant to a Terms Agreement, the
Company's representations and warranties stated in Section 3(b) and its
obligations under the fourth paragraph of Section 1(a) and Sections 4(a), 4(b),
4(e), 4(f), 4(i), 4(j), 4(k), 4(m) and 4(n), with respect to clause (i) above,
shall remain in full force and effect and not be terminated and, with respect to
clause (ii) above, shall remain in full force and effect and not be terminated
until the earlier of such resale or the expiration of 90 days from such
termination.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Agent who is a party thereto, by notice given to the
Company prior to delivery of any payment for Notes to be purchased thereunder,
if prior to such time (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by either Federal or New York State authorities, (iii) there shall have occurred
any outbreak or material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets or the United States is such as to
make it, in the judgment of such Agent, impracticable to market such Notes or
enforce contracts for sale of such Notes, (iv) there shall have been any
decrease in the ratings of any of the Company's debt securities by Xxxxx'x
Investors Service, Inc., Standard & Poor's Corporation or Duff & Xxxxxx, Inc.,
or any such rating agency shall have announced publicly that it has placed any
of such debt securities on what is commonly termed a "Watch List" for possible
downgrading or (v) any condition set forth in Section 5(B) shall not have been
satisfied or waived.
-20-
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agents or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Notes.
9. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Company, will be mailed or delivered or
sent by facsimile transmission or telegraph and confirmed to it at 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of the Treasurer, facsimile
transmission number (000) 000-0000, and if sent to any of the Agents, will be
mailed or delivered or sent by facsimile transmission or telegraph and confirmed
to them at their respective addresses and facsimile transmission numbers, as
follows: (a) if to Xxxxxxx Xxxxx & Co., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-1310, Attention: Xxxxx Xxxxxxxx/MTN Product Management, facsimile
transmission number (000) 000-0000; (b) if to Chase Securities, Inc., to it at
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 10081, Attention: Medium-Term Note
Desk, facsimile transmission number (000) 000-0000; (c) if to Chemical
Securities Inc., to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxx Xxxxxx, facsimile transmission number (000) 000-0000; (d) if
to Citicorp Securities Inc., to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxxx, facsimile transmission number (000) 000-0000; (e) if to
First Chicago Capital Markets, Inc., to it at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, facsimile transmission number (212)
373-1391, with a copy to: First Chicago Capital Markets, Inc., Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx,
facsimile transmission number (000) 000-0000; (f) if to Xxxxxxx, Xxxxx & Co., to
it at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Credit Department-
Credit Control, Medium-Term Notes, facsimile transmission number (000) 000-0000;
(g) if to X.X. Xxxxxx Securities Inc., to it at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx X. Xxxxx, facsimile transmission number (212) 837-
5939; (h) if to Xxxxxx Brothers Inc., to it at Three World Financial Center,
12th Floor, New York, New York 10285-1200, Attention: Medium-Term Note
Department, facsimile transmission number (000) 000-0000; and (i) if to UBS
Securities Inc., to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxxx, facsimile transmission number (000) 000-0000. Any party hereto
may change its address or facsimile number set out in this Section 9 by a notice
given to the other parties in accordance herewith.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 6 hereof, and no
other person will have any right or obligation hereunder.
-21-
11. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
XXXXXX FINANCIAL, INC.
By: Xxxxxxx O'X. Xxxxxx
----------------------------------
Title: Senior Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: Xxxxx X. Xxxxxxxx
--------------------------------
Title: Director
-----------------------------
CHASE SECURITIES, INC.
By: Xxxxx X. XxXxxx
--------------------------------
Title: Managing Director
-----------------------------
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CHEMICAL SECURITIES INC.
By: Xxxxxx X. Xxxxxx
--------------------------------
Title: Managing Director
-----------------------------
CITICORP SECURITIES, INC.
By: X.X. Xxxxxxx
--------------------------------
Title: Vice President
-----------------------------
FIRST CHICAGO CAPITAL MARKETS, INC.
By: Xxxxxxxx X. Xxxxxx
--------------------------------
Title: Assistant Vice President
--------------------------
XXXXXXX, XXXXX & CO.
By:
--------------------------------
Title:
-----------------------------
XXXXXX BROTHERS
By:
--------------------------------
Title:
-----------------------------
X.X. XXXXXX SECURITIES INC.
By: X. Xxxxxx Xxxxxx
--------------------------------
Title: Managing Director
-----------------------------
UBS SECURITIES INC.
By: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
-----------------------------
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Xxxxxxx, Xxxxx & Co.
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
XXXXXX BROTHERS INC.
By: Xxxxxx Xxxxx
--------------------------------
Title:
-----------------------------
-23a-
SCHEDULE I
XXXXXX FINANCIAL, INC.
MEDIUM-TERM NOTES, SERIES G, COMMISSION SCHEDULE
Commission
Term Rate
---- ----
9 months to less than 1 year .125%
1 year to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to 30 years .750%
SCHEDULE II
XXXXXX FINANCIAL, INC.
MEDIUM-TERM NOTES, SERIES G
The agreements covered by the representation and warranty of the Company
set out in Section 3(b)(vii) are as follows:
1. Exchange Rate Agent Agreement between the Company and The Fuji Bank
and Trust Company dated as of October 17, 1995.
2. Determination Agent Agreement between the Company and The Fuji Bank
and Trust Company dated as of October 17, 1995.
3. Paying Agent and Securities Registrar Agreement between the Company
and The Fuji Bank and Trust Company dated as of October 17, 1995.
EXHIBIT A
XXXXXX FINANCIAL, INC.
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
October 17, 1995
The Medium-Term Notes, Series G due from Nine Months to Thirty Years from
Date of Issue (the "Notes") of Xxxxxx Financial, Inc. (the "Company") are to be
offered on a continuing basis. Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, Chase Securities, Inc., Chemical Securities Inc.,
Citicorp Securities, Inc., First Chicago Capital Markets, Inc., Xxxxxxx, Xxxxx &
Co., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers, Xxxxxx Brothers Inc. and UBS
Securities Inc., as agents (the "Agents") (either acting directly or through one
or more affiliates,) have agreed to use their reasonable best efforts to solicit
offers to purchase Notes from the Company. The Agents may also purchase Notes as
principals for resale. The Notes are being sold pursuant to a Distribution
Agreement between the Company and the Agents dated as of the date hereof (the
"Distribution Agreement"). The Notes will rank equally with all other unsecured
and unsubordinated debt of the Company and have been registered with the
Securities and Exchange Commission (the "Commission"). The Notes will be issued
under the Indenture dated as of September 1, 1995, between the Company and
Shawmut Bank Connecticut, National Association, as trustee (in such capacity,
the "Trustee"), (the "Indenture"), between the Company and the Trustee. The
Company has appointed the Fuji Bank and Trust Company ("Fuji") as Paying Agent
and Securities Registrar under the Indenture with respect to the Notes. In
addition, the Trustee has appointed Xxxx as Authenticating Agent under the
Indenture with respect to the Notes.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Fuji, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note"), or a certificate delivered to the Holder thereof or a Person designated
by such Holder (a "Certificated Note"). Only Notes denominated and payable in
U.S. dollars may be issued as Book-Entry Notes. An owner of a Book-Entry Note
will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. The Company will advise the Agents and Xxxx in
writing of those persons handling administrative responsibilities with whom the
Agents and Fuji are to communicate regarding orders to purchase Notes and the
details of their delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued in
EXHIBIT A
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture, the Notes, and
the Prospectus Supplement (dated October 17, 1995) relating to the Notes shall
be used herein as therein defined. Notes for which interest is calculated on
the basis of a fixed interest rate are referred to herein as "Fixed Rate Notes".
Notes for which interest is calculated on the basis of a floating interest rate
are referred to herein as "Floating Rate Notes". To the extent the procedures
set forth below conflict with the provisions of the Notes, the Indenture or the
Distribution Agreement, the relevant provisions of the Notes, the Indenture and
the Distribution Agreement shall control.
A-2
EXHIBIT A
PART I
ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Fuji 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 Fuji to DTC dated as of October 17, 1995 and a Medium-Term
Note Certificate Agreement between Fuji and DTC dated as of October 10, 1990,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement system ("SDFS").
ISSUANCE: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to U.S.
$200,000,000 principal amount of all such Notes
that have the same tenor and terms, including (i)
in the case of Fixed Rate Notes, the same Original
Issue Date, original issue discount provisions, if
any, interest rate, Interest Payment Dates,
Interest Payment Period, redemption provisions, if
any, and Stated Maturity Date, (ii) in the case of
Floating Rate Notes, the same Original Issue Date,
Basic Rate, Initial Interest Rate, Stated Maturity,
Interest Reset Period, Interest Reset Dates, Spread
or Spread Multiplier, if any, Minimum Interest
Rate, if any, and Maximum Interest Rate, if any and
(iii) in the case of Currency Indexed Notes, the
same Denominated Currency, Indexed Currency, Face
Amount and Base Exchange Rate (in each case,
collectively, the "Terms"). Each Global Security
will be dated and issued as of the date of its
authentication by the Authenticating Agent. Each
Global Security will bear an interest accrual date
(an "Interest Accrual Date"), which will be (i)
with respect to an original Global Security (or any
portion thereof), its original issuance date and
(ii) with respect to any Global Security (or
portion thereof) issued subsequently upon exchange
of a
A-3
EXHIBIT A
Global Security or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or
duly provided for on the predecessor Global
Security or Securities (or if no such payment or
provision has been made, the original issuance date
of the predecessor Global Security), regardless of
the date of authentication of such subsequently
issued Global Security. No Global Security will
represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note.
IDENTIFICATION NUMBERS: The Company has previously arranged with the CUSIP
Service Bureau of Standard & Poor's Corporation
(the "CUSIP Service Bureau") for the reservation of
a series of CUSIP numbers (including tranche
numbers), which series consists of approximately
900 CUSIP numbers and relates to Global Securities
representing Book-Entry Notes and book-entry
medium-term notes issued by the Company with
other series designations. Fuji, the Company and
DTC have obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers. The
Company will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B", DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Securities, Fuji
will notify the Company at any time when fewer than
100 of the reserved CUSIP numbers remain unassigned
to Global Securities, and, if it deems necessary,
the Company will reserve additional CUSIP numbers
for assignment to Global Securities. Upon obtaining
such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to
Fuji and DTC.
REGISTRATION: Global Securities will be issued only in fully
registered form without coupons. Each Global
Security will be registered in the name of CEDE &
CO., as a nominee for DTC, on the securities
A-4
EXHIBIT A
register for the Notes maintained under the
Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in DTC
designated by such owner) will designate one or
more participants in DTC (with respect to such
Note, the "Participants") to act as agent or agents
for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance
with respect to such beneficial owner in such Note
in the account of such Participants. The ownership
interest of such beneficial owner in such Note will
be recorded through the records of such
Participants or through the separate records of
such Participants and one or more indirect
participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Note.
EXCHANGE: Fuji may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that
represent (A) Fixed Rate Book-Entry Notes having
the same Terms and for which interest has been paid
to the same date or (B) Floating Rate Book-Entry
Notes having the same Terms and for which interest
has been paid to the same date, (ii) a date,
occurring at least thirty days after such written
notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security
and (iii) a new CUSIP number, obtained from the
Company, to be assigned to such replacement Global
Security. Upon receipt of such
A-5
EXHIBIT A
a notice, DTC will send to its participants
(including Fuji) a written reorganization notice to
the effect that such exchange will occur on such
date. Prior to the specified exchange date, Xxxx
will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and such
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid.
On the specified exchange date, Fuji will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and a new Interest
Accrual Date and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be exchanged
exceed U.S. $200,000,000 in aggregate principal
amount, one Global Security will be authenticated
and issued to represent each U.S. $200,000,000 of
principal amount of the exchanged Global Securities
and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
MATURITIES: Each Book-Entry Note will mature on a date not less
than nine months nor more than thirty years after
the settlement date for such Note.
DENOMINATIONS: Book-Entry Notes will be issued in principal
amounts of U.S. $1,000 or any amount in excess
thereof that is an integral multiple of U.S.
$1,000. Global Securities will be denominated in
principal amounts not in excess of U.S.
$200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
U.S. $200,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
authenticated and issued to represent each U.S.
$200,000,000 principal amount
A-6
EXHIBIT A
of such Book-Entry Note or Notes and an additional
Global Security will be authenticated and issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry
Note or Notes shall be assigned the same CUSIP
number.
INTEREST: General. Interest, if any, on each Book-Entry Note
will accrue from the Interest Accrual Date of the
Global Security representing such Note and will be
calculated and paid in the manner described in such
Note and in the Note Prospectus (as defined in the
Distribution Agreement), as supplemented by the
applicable Pricing Supplement. Unless otherwise
specified therein, each payment of interest on a
Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date or Stated
Maturity (other than a Stated Maturity of a Fixed
Rate Book-Entry Note occurring on the 31st day of a
month, in which case such payment of interest will
include interest accrued to but excluding the 30th
day of such month). Interest payable at the Stated
Maturity of a Book-Entry Note will be payable to
the Person to whom the principal of such Note is
payable. Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in
order to include the amount of any interest payable
and certain other information regarding the related
Global Security in the appropriate weekly bond
report published by Standard & Poor's Corporation.
Regular Record Dates. Unless otherwise specified
in the applicable Pricing Supplement, the regular
record date with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment Date.
A-7
EXHIBIT A
Fixed Rate Book-Entry Notes. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Book-Entry
Notes will be made either semiannually on March 1
and September 1 of each year or annually on
February 1 of each year and, in either case, at
Stated Maturity; provided, however, that in the
case of a Fixed Rate Book-Entry Note issued between
a regular record date and an Interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next succeeding
regular record date; and provided further, that any
payment otherwise required to be made in respect of
a Fixed Rate Note on a date that is not a Business
Day for such Fixed Rate Note need not be made on
such date, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such date, and no additional interest shall
accrue as a result of such delayed payment.
Floating Rate Book-Entry Notes. Interest payments
will be made on Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or annually.
Unless otherwise agreed upon, interest will be
payable, in the case of Floating Rate Book-Entry
Notes with a monthly Interest Payment Period, on
the third Wednesday of each month: with a quarterly
Interest Payment Period, on the third Wednesday of
March, June, September and December of each year:
with a semi-annual Interest Payment Period on the
third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below: and
with an annual Interest Payment Period, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however,
that if an Interest Payment Date for a Floating
Rate Book-Entry Note would otherwise be a day that
is not a Business Day with respect to such Floating
Rate Book-Entry Note, such Interest Payment Date
will be the next succeeding Business Day with
respect to such
A-8
EXHIBIT A
Floating Rate Book-Entry Note (except that in the
case of a Floating Rate Book-Entry Note for which
the Base Rate is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day); provided further, that in the case
of a Floating Rate Book-Entry Note issued between a
regular record date and an Interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next succeeding
regular record date; and provided further, that if
the Stated Maturity of a Floating Rate - Book Entry
Note falls on a day that is not a Business Day, the
payment of principal, premium, if any, and interest
will be made on the next succeeding Business Day,
and no interest on such payment shall accrue for
the period from and after such Stated Maturity
Date.
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January, April,
July and October of each year, Xxxx will deliver to
the Company and DTC a written list of regular
record dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the
six-month period beginning on such first Business
Day. Promptly after each Interest Determination
Date for Floating Rate Book-Entry Notes, the
Company will notify Standard & Poor's Corporation
of the interest rates determined on such Interest
Determination Date.
CALCULATION OF INTEREST: Fixed Rate Book-Entry Notes. Interest on Fixed
Rate Book-Entry Notes (including interest for
partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes, except as otherwise
set forth therein, will be calculated on
A-9
EXHIBIT A
the basis of actual days elapsed and a year of 360
days, except that, in the case of a Floating Rate
Book-Entry Note for which the Base Rate is Treasury
Rate, interest will be calculated on the basis of
the actual number of days in the year.
PAYMENTS OF PRINCIPAL
AND INTEREST: Payment of Interest Only. Promptly after each
regular record date, Xxxx will deliver to the
Company and DTC a written notice setting forth, by
CUSIP number, the amount of interest to be paid on
each Global Security on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with Stated Maturity) and the total of
such amounts. DTC will confirm the amount payable
on each Global Security on such Interest Payment
Date by reference to the daily bond reports
published by Standard & Poor's Corporation. The
Company will pay to Fuji, as Paying Agent, the
total amount of interest due on such Interest
Payment Date (other than at Stated Maturity), and
Fuji will pay such amount to DTC, at the times and
in the manner set forth below under "Manner of
Payment". If any Interest Payment Date for a Book-
Entry Note is not a Business Day, the payment due
on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date (except that in the case of a Floating
Rate Note for which the Base Rate is LIBOR, if such
Business Day with respect to such Floating Rate
Note is in the next succeeding calendar month, such
Interest Payment Date will be the immediately
preceding Business Day).
Payments at Stated Maturity. On or about the first
Business Day of each month, Xxxx will deliver to
the Company and DTC a written list of principal and
interest to be paid on each Global Security
maturing (on a Stated Maturity Redemption or
Repayment Date or otherwise) in the following
A-10
EXHIBIT A
month. Fuji, the Company and DTC will confirm the
amounts of such principal and interest payments
with respect to each such Global Security on or
about the fifth Business Day preceding the Stated
Maturity of such Global Security. The Company will
pay to Fuji, as Paying Agent, the principal amount
of such of such Global Security, together with
interest due at such Stated Maturity. Fuji will pay
such amount to DTC at the times and in the manner
set forth below under "Manner of Payment". If any
Stated Maturity of a Global Security representing
Book-Entry Notes is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Stated Maturity. Promptly after payment
to DTC of the principal and interest due at Stated
Maturity of such Global Security, Fuji, as the
Authenticating Agent, will cancel such Global
Security in accordance with the Indenture and so
advise the Company. On the first Business Day of
each month, Xxxx will deliver to the Trustee a
written statement indicating the total principal
amount of Outstanding Global Securities as of the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on
any Interest Payment Date or at Stated Maturity
shall be paid by the Company to Fuji in immediately
available funds on such date. The Company will make
such payment on such Global Securities by
instructing Fuji to withdraw funds from an account
maintained by the Company at Fuji or by wire
transfer to Fuji. The Company will confirm any such
instructions in writing to Fuji. Prior to 10 A.M.
(New York City time) on the date of Stated Maturity
or as soon as possible thereafter, Fuji will pay by
separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New
York previously
A-11
EXHIBIT A
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together
with interest thereon) due on a Global Security on
such date. On each Interest Payment Date (other
than at Stated Maturity) interest payments shall be
made to DTC in funds available for immediate use by
DTC in accordance with existing arrangements
between Fuji and DTC. Thereafter on each such date,
DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded
in the book-entry system maintained by DTC. None of
the Company (as issuer or as paying agent), the
Trustee or Fuji shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
PROCEDURE FOR RATE SETTING
POSTING: The Company and the Agents will discuss from time
to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Book-Entry Notes that may be sold as a
result of the solicitation of orders by the Agents.
If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which
the Agents are to solicit orders (the setting of
such prices and rates to be referred to herein as
"posting") or if the Company decides to change
prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates
to be posted.
A-12
EXHIBIT A
ACCEPTANCE AND
REJECTION OF ORDERS: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all orders to purchase Book-Entry Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed by the Company
and such Agent, the Company has the right to accept
orders to purchase Book-Entry Notes and may reject
any such orders in whole or in part.
PREPARATION OF PRICING
SUPPLEMENT: If any order to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to have ten copies thereof
filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the soliciting
Agent at the address set forth in the penultimate
sentence of this paragraph. The Company will cause
at least one copy of each such Pricing Supplement
to be promptly delivered to the Agents so that the
Agents receive such Pricing Supplement not later
than 11:00 a.m. New York City time on the first
Business Day following the acceptance of any such
order. Such Pricing Supplement shall promptly be
delivered by courier to such Agent at the following
address: (a) if to Xxxxxxx Xxxxx & Co., to: Tritech
Services, 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Prospectus Operations/Xxxxxxx
Xxxxxxxxx, (000) 000-0000, telecopier (908) 885-
2774/5/6; (b) if to Chase Securities, Inc., to it
at One Chase Manhattan Plaza, New York, New York
10081, Attention: Medium-Term Note Desk, facsimile
transmission number (000) 000-0000; (c) if to
Chemical Securities Inc., to it at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000,
A-13
EXHIBIT A
Attention: Xxxxxx Xxxxxx, facsimile transmission
number (000) 000-0000; (d) if to Citicorp
Securities Inc., to it at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx,
facsimile transmission number (000) 000-0000; (e)
if to First Chicago Capital Markets Inc., to it c/o
Operations Manager, Medium-Term Notes, One First
National Plaza, Mail Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0084, Attention: Xxxxxx XxXxxxxx, facsimile
transmission number (000) 000-0000; (f) if to
Xxxxxxx, Xxxxx & Co., to it at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx,
facsimile transmission number (000) 000-0000; (g)
if to X.X. Xxxxxx Securities Inc., to it at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxx, facsimile transmission number (212) 648-
5207; (h) if to Xxxxxx Brothers Inc. by telecopy,
to it c/o ADP, Prospectus Services, 000 Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, facsimile
transmission number (000) 000-0000, and by hand to
it at 3 World Financial Center, 9th Floor, New
York, New York 10285-0900, Attention: Xxxxxx
Xxxxxxx; and (i) if to UBS Securities Inc., to it
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxx, facsimile transmission
number (000) 000-0000. The Agent that has solicited
such order will cause a Note Prospectus and Pricing
Supplement to be delivered to the purchaser of the
Note.
In each instance that a Pricing Supplement is
prepared, the Agents will provide a Pricing
Supplement and Note Prospectus to the purchaser of
the Note or its agent. Pursuant to Rule 434 ("Rule
434") of the Act, the Pricing Supplement may be
delivered separately from the Note Prospectus.
Outdated Pricing Supplements (other than those
retained for files), will be destroyed.
SUSPENSION OF SOLICITATION;
AMENDMENT OR SUPPLEMENT: The Company may instruct the Agents to suspend at
any time, for any period of time or permanently,
the solicitation of orders to purchase Notes. Upon
receipt of such instructions, the Agents will
A-14
EXHIBIT A
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Trustee, the Agents and Fuji
whether such orders may be settled and whether
copies of the Note Prospectus as in effect at the
time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Note Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the
Distribution Agreement) or the Note Prospectus, it
will promptly advise the Agents, and furnish the
Agents with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Distribution
Agreement. Subject to the provisions of the
Distribution Agreement, the Company may file with
the Commission any such supplement to the Note
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and Fuji with
copies of any such supplement, and confirm to the
Agents that such supplement has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b).
PROCEDURES FOR CHANGES: When the Company has determined to change the
interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The
A-15
EXHIBIT A
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded. Within
five Business Days after any sale of Notes, the
Company will file with the Commission a Pricing
Supplement to the Note Prospectus relating to such
Notes that reflects the applicable interest rates
and other terms and will deliver copies of such
Pricing Supplement to the Agents.
DELIVERY OF PROSPECTUS: A copy of the Note Prospectus and a Pricing
Supplement relating to a Book-Entry Note, which
pursuant to Rule 434, may be delivered separately
from the Note Prospectus, must accompany or precede
the earliest of any written offer of such Note,
confirmation of the purchase of such Note and
payment for such Note by its purchaser. If notice
of a change in the terms of the Book-Entry Notes is
received by an Agent between the time an order for
a Book-Entry Note is placed and the time written
confirmation thereof is sent by such Agent to a
customer or his agent, such confirmation shall be
accompanied by a Note Prospectus and Pricing
Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, each
Agent will deliver a Note Prospectus and Pricing
Supplement as herein described with respect to each
Book-Entry Note sold by it. Fuji will make such
delivery if such Note is sold directly by the
Company to a purchaser (other than an Agent).
CONFIRMATION: For each order to purchase a Book-Entry Note
solicited by an Agent and accepted by or on behalf
of the Company, such Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
A-16
EXHIBIT A
SETTLEMENT: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Company will be settled on the
third Business Day following the date of sale of
such Note pursuant to the timetable for settlement
set forth below unless the Company and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day
following the date of sale.
SETTLEMENT PROCEDURES: Settlement Procedures with regard to each Book-
Entry Note sold by the Company through any
soliciting Agent, as agent, shall be as follows:
A. The soliciting Agent will advise the Company by
telephone (confirmed in writing) of the
following settlement information:
1. Principal amount.
2. Stated Maturity Date.
3. (a) In the case of a Fixed Rate Book-
Entry Note, the interest rate; and (b) in
the case of a Floating Rate Book-Entry
Note, the Base Rate, Initial Interest Rate
(if known at such time), Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any),
Maximum Interest Rate (if any), Interest
Determination Dates, Calculation Date,
Calculation Agent (if other than the
Company).
4. In the case of a Currency Indexed Book-
Entry Note, the Denominated
A-17
EXHIBIT A
Currency, Indexed Currency, Face Amount
and Base Exchange Rate.
5. Interest Payment Dates and the Interest
Payment Period.
6. Redemption provisions, if any.
7. Settlement date.
8. Price.
9. Agent's commission, determined as provided
in Schedule I of the Distribution
Agreement.
10. Whether the Note is issued at an original
issue discount and, if so, the total
amount of OID, the yield to maturity and
the initial accrual period OID.
11. If the Note is an Amortizing Note, the
repayment provisions.
B. The Company will assign a CUSIP number to the
Global Security representing such Note and then
advise Fuji by telephone (confirmed in writing
at any time on the same date) or electronic
transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP
number and the name of the soliciting Agent.
The Company will also notify the soliciting
Agent by telephone of such CUSIP number as soon
as practicable. Each such communication by the
Company shall constitute a representation and
warranty by the Company to Fuji, the
Authenticating Agent (if other than Fuji), the
Trustee and the soliciting Agent that (i) such
Note is then, and at the time of issuance and
sale thereof will be, duly authorized for
issuance and sale
A-18
EXHIBIT A
by the Company, (ii) such Note, and the Global
Security representing such Note, will conform
with the terms of the Indenture and (iii) upon
authentication and delivery of such Global
Security, the aggregate principal amount of all
Notes issued under the Indenture will not
exceed U.S. $2,500,000,000 or the equivalent
thereof in other currencies.
X. Xxxx will enter a pending deposit message
through DTC's Participant Terminal System
providing the following settlement information
to DTC, the soliciting Agent, Standard & Poor's
Corporation and, upon request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Identification as a Currency Indexed Note,
if applicable.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related regular record date
(which in the case of the floating rate
Notes that reset daily or weekly, shall be
the DTC Record Date which is the date 5
calendar days immediately preceding the
applicable Interest Payment Date and in
the case of all other Notes shall be the
regular record date as defined in the
Notes) and amount of interest payable on
such Interest Payment Date.
5. The Interest Payment Period.
A-19
EXHIBIT A
6. CUSIP number of the Global Security
representing such Note.
7. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
8. The number of participant accounts
maintained by DTC on behalf of Fuji,
the Trustee and the Agents.
D. The Authenticating Agent will complete such
Note, stamp the appropriate legend, if not
already set forth thereon, and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to Xxxx's participant
account at DTC.
X. Xxxx will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit such Note to Xxxx's
participant account and credit such Note to the
soliciting Agent's participant account and (ii)
debit the soliciting Agent's settlement account
and credit Xxxx's settlement account for an
amount equal to the price of such Note less the
soliciting Agent's commission. The entry of
such a deliver order shall constitute a
representation and warranty by Fuji to DTC that
(i) the Global Security representing such Book-
Entry Note has been issued and authenticated
and (ii) Fuji is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between Fuji and DTC.
A-20
EXHIBIT A
G. The soliciting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such
Note to the participant accounts of the
Participants with respect to such Note and (ii)
to debit the settlement accounts of such
Participants and credit the settlement account
of such Agent for an amount equal to the price
of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
X. Xxxx will wire transfer to the account of the
Company maintained at Mellon Bank, Pittsburgh,
Pennsylvania (Account No. 183-5261, in the name
of Xxxxxx Financial, Inc.), or such other bank
as the Company may designate, funds available
for immediate use in the amount transferred to
Fuji in accordance with Settlement Procedure
"F".
J. Periodically, Xxxx will send to the Company and
the Trustee a statement setting forth the
principal amount of Notes Outstanding as of
that date and setting forth a brief description
of any sales of which the Company has advised
Fuji but which have not yet been settled.
K. The soliciting Agent will confirm the purchase
of such Note to the purchaser either by
transmitting to the Participants with respect
to such Note a confirmation order or orders
through DTC's institutional delivery system or
by mailing a written confirmation to such
purchaser.
A-21
EXHIBIT A
SETTLEMENT PROCEDURES
TIMETABLE: For orders of Book-Entry Notes solicited by an
Agent and accepted by the Company for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but
not later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A",
"B" and "C" shall be completed as soon as
practicable but not later than 11:00 A.M., 12:00
Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date. If the Initial
Interest Rate for a Floating Rate Book-Entry Note
has not been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedures
"B" and "C" shall be completed as soon as such rate
has been determined but no later than 12:00 Noon
and 2:00 P.M., respectively, on the second Business
Day before the settlement date. Settlement
Procedure "H" is subject to extension in accordance
with any extension of Fedwire closing deadlines and
in the other events specified in SDFS operating
procedures in effect on the settlement date. If
settlement of a Book-Entry Note is rescheduled or
canceled, Fuji will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than
A-22
EXHIBIT A
2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
FAILURE TO SETTLE: If Fuji fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "F", Fuji may deliver to DTC through
DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to Xxxx's participant account. DTC
will process the withdrawal message, provided that
Xxxx's participant account contains a principal
amount of the Global Security representing such
Note that is at least equal to the principal amount
to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the
Authenticating Agent will cancel such Global
Security in accordance with the Indenture and so
advise the Company and Fuji, and Fuji will make
appropriate entries in its records. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes
represented by a Global Security, Fuji will
exchange such Book-Entry Notes for two Global
Securities, one of which shall represent the Book-
Entry Notes designated in the withdrawal message
and shall be canceled immediately after issuance
and the other of which shall represent the other
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the soliciting Agent may
A-23
EXHIBIT A
enter SDFS delivery orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "G" and
"F", respectively. Thereafter, Xxxx will deliver
the withdrawal message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
represented by a Global Security, Fuji will
provide, in accordance with Settlement Procedure
"D", for the authentication and issuance of a
Global Security representing the other Book-Entry
Notes to have been represented by such Global
Security and will make appropriate entries in its
records.
TRUSTEE AND FUJI
NOT TO RISK FUNDS: Nothing herein shall be deemed to require the
Trustee or Fuji to risk or expend its own funds in
connection with any payment to the Company, or any
Agent or the purchaser, it being understood by all
parties that payments made by the Trustee or Fuji
to either the Company or an Agent shall be made
only to the extent that funds are provided to the
Trustee or Fuji for such purpose.
AUTHENTICITY OF SIGNATURES: The Company will cause the Authenticating Agent to
furnish the Agents from time to time with the
specimen signatures of each of the Authenticating
Agent's officers, employees or agents who has been
authorized by the Authenticating Agent to
authenticate Book-Entry Notes, but the Agents will
not have any obligation or liability to the Company
or the Authenticating Agent in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the
Authenticating Agent on any Book-Entry Note.
A-24
EXHIBIT A
PAYMENT OF EXPENSES: Each Agent shall forward to the Company from time
to time a statement of the out-of-pocket expenses
incurred by such Agent that are reimbursable to it
pursuant to the terms of the Distribution
Agreement. The Company will remit payment to such
Agent promptly after submission of such a
statement.
ADVERTISING COSTS: The Company will determine with the Agents the
form, substance and amount of advertising that may
be appropriate in soliciting offers to purchase the
Book-Entry Notes. Advertising expenses will be
paid by the Company or reimbursed to the Agents by
the Company.
A-25
EXHIBIT A
PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
ISSUANCE: Each Certificated Note will be dated and issued as
of the date of its authentication by the
Authenticating Agent. Each Certificated Note will
bear an Original Issue Date, which will be (i) with
respect to an original Certificated Note (or any
portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect
to any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the Original Issue
Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFERS AND EXCHANGES: A Certificated Note may be presented for transfer
or exchange at the principal corporate trust office
in the City of New York of Fuji. Certificated
Notes will be exchangeable for other Certificated
Notes having identical terms but different
authorized denominations without service charge.
Certificated Notes will not be exchangeable for
Book-Entry Note.
MATURITIES: Each Certificated Note will mature on a date not
less than nine months nor more than thirty years
after the settlement date for such Note.
DENOMINATIONS: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
any Specified Currency other than U.S. dollars will
be specified pursuant to "Settlement Procedures"
below.
A-26
EXHIBIT A
INTEREST: General. Interest, if any, on each Certificated
Note will be calculated and paid in the manner
described in such Note and in the Note Prospectus,
as supplemented by the applicable Pricing
Supplement. Unless otherwise specified herein,
each payment of interest on a Certificated Note
will include interest accrued to but excluding the
Interest Payment Date or Stated Maturity (other
than a Stated Maturity of a Fixed Rate Certificated
Note occurring on the 31st day of a month, in which
case such payment of interest will include interest
accrued to but excluding the 30th day of such
month).
Regular Record Dates. The regular record dates
with respect to any Interest Payment Date shall be
the date fifteen calendar days immediately
preceding such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Certificated
Notes will be made either semi-annually on March 1
and September 1 of each year or annually on
February 1 of each year and, in either case, at
Stated Maturity: provided, however, that in the
case of a Fixed Rate Certificated Note issued
between a regular record date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding regular record date; and provided
further, that any payment otherwise required to be
made in respect of a Fixed Rate Certificated Note
on a date that is not a Business Day for such Fixed
Rate Certificated Note need not be made on such
date, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such date, and no additional interest shall
accrue as a result of such delayed payment.
A-27
EXHIBIT A
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually.
Unless otherwise agreed by the Company, interest
will be payable, in the case of Floating Rate
Certificated Notes with a monthly Interest Payment
Period, on the third Wednesday of each month; with
a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of
each year; with a semi-annual Interest Payment
Period, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period,
on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below,
provided, however, that if an Interest Payment Date
for a Floating Rate Certificated Note would
otherwise be a day that is not a Business Day with
respect to such Floating Rate Certificated Note,
such Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Certificated Note (except that in the
case of a Floating Rate Certificated Note for which
the Base Rate is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day); provided further, that in the case
of a Floating Rate Certificated Note issued between
a regular record date and an Interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next succeeding
regular record date; and provided further, that if
the Stated Maturity of a Floating Rate Certificated
Note falls on a day that is not a Business Day, the
payment of principal, premium, if any, and interest
will be made on the next succeeding Business Day,
and no interest on such payment shall accrue for
the period from and after such Stated Maturity
Date.
A-28
EXHIBIT A
CALCULATION OF INTEREST: Fixed Rate Certificate Note. Interest on Fixed
Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates
on Floating Rate Certificated Notes will be
determined as set forth in the form of Notes. The
Company and Fuji will confirm the amount of the
Initial Interest Payment due on any Floating Rate
Certificated Note for which the Initial Interest
Period is shorter or longer than the Index Stated
Maturity. Interest on Floating Rate Certificated
Notes, except as otherwise set forth therein, will
be calculated on the basis of actual days elapsed
and a year of 360 days, except that, in the case of
a Floating Rate Certificated Note for which the
Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of
days in the year.
PAYMENTS OF PRINCIPAL
AND INTEREST: Fuji will pay the principal amount of each
Certificated Note at Stated Maturity upon
presentation of such Note to Fuji. Such payment,
together with payment of interest due at Stated
Maturity of such Note, will be made in funds
available for immediate use by Fuji and in turn by
the Holder of such Note. Certificated Notes
presented to Fuji at Stated Maturity for payment
will be canceled by Xxxx, as the Authenticating
Agent in accordance with the Indenture. All
interest payments on a Certificated Note (other
than interest due at Stated Maturity) will be made
by check drawn on Fuji (or another Person appointed
by Xxxx) and mailed by Fuji to the Person entitled
thereto as provided in such Note and the Indenture;
provided, however, that the holder of U.S.
$10,000,000 (or the equivalent thereof in other
currencies) or more of Notes with similar tenor and
terms will be entitled to receive payment by wire
transfer in U.S. dollars. Following each Regular
Record Date and Special Record Date, Fuji will
A-29
EXHIBIT A
furnish the Company and the Paying Agent (if other
than Fuji) with a list of interest payments to be
made on the following Interest Payment Date for
each Certificated Note and the total for all
Certificated Notes. Interest at Stated Maturity
will be payable to the Person to whom the payment
of principal is payable. Fuji will provide monthly
to the Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing (on a Stated Maturity,
Redemption or Repayment Date or otherwise) in the
next month.
Xxxx will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any Interest Payment Date for or the Stated
Maturity of a Certificated Note is not a Business
Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date or Stated
Maturity, as the case may be, except in the case of
an Interest Payment Date on a Floating Rate
Certificated Note for which the Base Rate is LIBOR,
if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be
the immediately preceding Business Day.
PROCEDURE FOR RATE SETTING
AND POSTING: The Company and the Agents will discuss from time
to time the aggregate principal amount of the
issuance price of, and the interest rates to be
borne by, Notes that may be sold as a result of the
solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
A-30
EXHIBIT A
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
ACCEPTANCE AND REJECTION
OF ORDERS: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all orders to purchase Certificated Notes
received by such Agent, other than those rejected
by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise
agreed by the Company and the Agents, the Company
has the sole right to accept orders to purchase
Certificated Notes and may reject any such orders
in whole or in part.
PREPARATION OF PRICING
SUPPLEMENT: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to have ten copies thereof
filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the soliciting
Agent at the address set forth in the penultimate
sentence of this paragraph. The Company will cause
at least one copy of each such Pricing Supplement
to be promptly delivered to the Agents so that the
Agents receive such Pricing Supplement not later
than the close of business on the first Business
Day following acceptance of any such order. Such
Pricing Supplement shall promptly be delivered by
courier to such Agent at the following address: (a)
if to Xxxxxxx Xxxxx & Co., to Tritech Services, 00
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: Prospectus Operations/Xxxxxxx
Xxxxxxxxx, (000) 000-0000, telecopier (908) 885-
2774/5/6; (b) if to Chase Securities, Inc., to it
at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, New York
10081, Attention: Medium-Term Note Desk, facsimile
transmission number (000) 000-0000;
A-31
EXHIBIT A
(c) if to Chemical Securities Inc., to it at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxx Xxxxxx, facsimile transmission
number (000) 000-0000; (d) if to Citicorp
Securities Inc., to it at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx,
facsimile transmission number (000) 000-0000; (e)
if to First Chicago Capital Markets Inc., to it c/o
Operations Manager, Medium-Term Notes, One First
National Plaza, Mail Suite 0237, Chicago, Illinois
60670, Attention: Xxxxxx XxXxxxxx, facsimile
transmission number (000) 000-0000; (f) if to
Xxxxxxx, Xxxxx & Co., to it at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx,
facsimile transmission number (000) 000-0000; (g)
if to X.X. Xxxxxx Securities Inc., to it at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxx, facsimile transmission number (212) 548-
5207; (h) if to Xxxxxx Brothers Inc. by telecopy,
to it c/o ADP, Prospectus Services, 000 Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, facsimile
transmission number (000) 000-0000, and by hand to
it at 3 World Financial Center, 9th Floor, New
York, New York 10285-0900, Attention: Xxxxxx
Xxxxxxx; and (i) if to UBS Securities Inc., to it
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxxx Xxxxxxx, facsimile transmission
number (000) 000-0000. The Agent that has solicited
such order will cause a Note Prospectus and Pricing
Supplement to be delivered to the purchaser of the
Note.
In each instance that a Pricing Supplement is
prepared, the Agent will provide Pricing Supplement
and Note Prospectus prior to the purchaser of the
Note or its agent. Pursuant to Rule 434, the
Pricing Supplement may be delivered separately from
the Note Prospectus. Outdated Pricing Supplements
(other than those retained for files), will be
destroyed.
SUSPENSION OF SOLICITATION;
AMENDMENT OR SUPPLEMENT: The Company may instruct the Agents to suspend at
any time for any period of time or permanently,
A-32
EXHIBIT A
the solicitation of orders to purchase Notes. Upon
receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents, the Trustee and Fuji
whether such orders may be settled and whether
copies of the Note Prospectus as in effect at the
time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Note Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Note Prospectus, it
will promptly advise the Agents and furnish the
Agents with the proposed amendment or supplement
and with such certificates and opinions as are
required, all to the extent required by and in
accordance with the terms of the Distribution
Agreement. Subject to the provisions of the
Distribution Agreement, the Company may file with
the Commission any supplement to the Note
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and Fuji with
copies of any such supplement, and confirm to the
Agents that such supplement has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b).
PROCEDURE FOR RATE
CHANGES: When the Company has determined to change the
interest rates of Notes being offered, it will
A-33
EXHIBIT A
promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded. Within
two Business Days after any sale of Notes, the
Company will file with the Commission a Pricing
Supplement to the Note Prospectus relating to such
Notes that reflects the applicable interest rates
and other terms and will deliver copies of such
Pricing Supplement to the Agents.
DELIVERY OF PROSPECTUS: A copy of the Note Prospectus and a Pricing
Supplement relating to a Certificated Note must
accompany or precede the earliest of any written
offer of such Note, confirmation of the purchase of
such Note and payment for such Note by its
purchaser. If notice of a change in the terms of
the Certificated Notes is received by an Agent
between the time an order for a Certificated Note
is placed and the time written confirmation thereof
is sent by such Agent to a customer of his agent,
such confirmation shall be accompanied by a Note
Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject
to "Suspension of Solicitation: Amendment or
Supplement" above, each Agent will deliver a Note
Prospectus and Pricing Supplement as herein
described with respect to each Certificated Note
sold by it. Fuji will make such delivery if such
Note is sold directly by the Company to a purchaser
(other than an Agent).
CONFIRMATION: For each order to purchase a Certificated Note
solicited by an Agent and accepted by or on behalf
of the Company, such Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
A-34
EXHIBIT A
SETTLEMENT: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the soliciting Agent and such
Agent's delivery of such Note against receipt of
immediately available funds shall, with respect to
such Note, constitute "settlement". All orders
accepted by the Company will be settled on the
third Business Day following the date of sale
pursuant to the timetable for settlement set forth
below, unless the Company and the purchaser agree
to settlement on another day which shall be no
earlier than the next Business Day following the
date of sale.
SETTLEMENT PROCEDURES: Settlement Procedures with regard to each
Certificated Note sold by the Company through the
Agents, as agent, shall be as follows:
X. Xxxx soliciting Agent will advise the Company
by telephone (confirmed in writing) of the
following settlement information.
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal Amount.
5. Stated Maturity Date.
6. (a) In the case of a Fixed Rate
Certificated Note, the interest rate; and
(b) in the case of a Floating Rate
Certificated Note, the Initial Interest
Rate (if known at such time), Base
A-35
EXHIBIT A
Rate, Index Stated Maturity, Interest
Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), and
Maximum Interest Rate (if any),
Calculation Date, Calculation Agent.
7. In the case of a Currency Indexed
Certificated Note, the Denominated
Currency, Indexed Currency, Face Amount
and Base Exchange Rate.
8. Interest Payment Dates and the Interest
Payment Period.
9. Specified Currency and whether the option
to elect payment in a Specified Currency
applies and if the Specified Currency is
not U.S. dollars, the authorized
denominations.
10. Redemption provisions, if any.
11. Settlement date.
12. Price (including currency).
13. Agent's commission, determined as
provided in Schedule I of the
Distribution Agreement.
14. Whether the Note is issued at an original
issue discount, and, if so, the total
amount of OID, the yield to maturity and
the initial accrual period OID.
15. If the Note is an Amortizing Note, the
repayment provision.
B. The Company will advise Fuji by telephone
(confirmed in writing at any time on the sale
A-36
EXHIBIT A
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above and the name of the soliciting
Agent. Each such communication by the Company
shall constitute a representation and warranty
by the Company to Fuji, the Trustee and the
soliciting Agent that (i) such Note is then,
and at the time of issuance and sale thereof
will be, duly authorized for issuance and sale
by the Company, (ii) such Note will conform
with the terms of the Indenture and (iii) upon
authentication and delivery of such Note, the
aggregate principal amount of all Notes issued
under the Indenture will not exceed U.S.
$2,500,000,000 or the equivalent thereof in
other currencies.
C. The Company will deliver to Fuji a pre-printed
four-ply packet for such Note, which packet
will contain the following documents in forms
that have been approved by the Company, the
Agents, Fuji and the Trustee:
1. Note with customer confirmation.
2. Stub One--For Authenticating Agent.
3. Stub Two--For Soliciting Agent.
4. Stub Three--For the Company.
D. The Authenticating Agent will complete such
Note and will authenticate such Note and
deliver it (with the confirmation) and Stubs
One and Two to the soliciting Agent (in the
case of: (a) Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, to NSCC at 00 Xxxxx
Xxxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xx Xxxxxxxx: (b) Xxxxx
Securities, Inc. at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 10081, Attention: Medium-
Term Note Desk; (c) Chemical Securities Inc.,
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-
0000, Attention: Xxxxxx Xxxxxx; (d) Citicorp
Securities, Inc., at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx;
(e) First Chicago Capital Markets, Inc., c/o
Bankers Trust, 00 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx 00, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxx; (f) Xxxxxxx, Xxxxx &
Co. at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxx, Receive and
Deliver; (g) Xxxxxx Brothers Inc. c/o Chemical
Bank, Four New York Plaza, Ground Floor,
Receive Window, FAO Xxxxxx Brothers, New York,
New York, Attention: Xxxxxxxx Xxxxx; (h) X.X.
Xxxxxx Securities Inc., at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx;
(i) UBS Securities Inc., at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxx, and such Agent will acknowledge
receipt of the Note by
A-37
EXHIBIT A
stamping or otherwise marking Stub One and
returning it to the Authenticating Agent. Such
delivery will be made only against receipt of
evidence that instructions have been given by
the soliciting Agent for payment to the
account of the Company at Mellon Bank,
Pittsburgh, Pennsylvania (Account No. 183-
5261, in the name of Xxxxxx Financial Inc.),
or such other bank as the Company may
designate, in funds available for immediate
use, of an amount equal to the price of such
Note less such Agent's commission.
E. The soliciting Agent will deliver such Note
(with the confirmation) to the customer
against payment in immediately payable funds.
The soliciting Agent will obtain the
acknowledgment of receipt of such Note by
retaining Stub Two.
X. Xxxx will send Stub Three to the Company by
first-class mail. Periodically, Xxxx will also
send to the Company a statement setting forth
the principal amount of the Notes Outstanding
as of that date under the Indenture and
setting forth a brief description of any sales
of which the Company has advised Fuji but
which have not yet been settled.
SETTLEMENT PROCEDURES
TIMETABLES: For orders of Certificated Notes by Agent, as
agent, and accepted by the Settlement Company,
Settlement Procedures "A" through "F" set forth
above shall be completed on or before the
respective times (New York City time) set forth
below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the sale date
A-38
EXHIBIT A
B 3:00 P.M. on the sale date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
FAILURE TO SETTLE: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the soliciting
Agent will notify the Company and Fuji by telephone
and return such Note to the Authenticating Agent
(if other than Fuji). Upon receipt of such notice,
the Company will immediately wire transfer to the
account of the soliciting Agent an amount equal to
the amount previously credited to the account of
the Company in respect of such Note. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other
than a default by the soliciting Agent in the
performance of its obligations hereunder and under
the Distribution Agreement, then the Company will
reimburse such Agent or Fuji, as appropriate, on an
equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of the Company. Immediately upon
receipt of the Certificated Note in respect of
which such failure occurred, the Authenticating
Agent will cancel such note in accordance with the
Indenture and so advise the Company and Fuji, and
Fuji will make appropriate entries in its records.
TRUSTEE AND FUJI
NOT TO RISK FUNDS: Nothing herein shall be deemed to require the
Trustee or Fuji to risk or expend its own funds in
connection with any payment to the Company, or any
Agent or the purchaser, it being understood by all
parties that payments made by the Trustee or Fuji
to either the Company or an Agent shall be made
only to the extent that funds are provided to the
Trustee or Fuji for such purpose.
A-39
EXHIBIT A
AUTHENTICITY TO SIGNATURES: The Company will cause the Authenticating Agent to
furnish the Agents from time to time with the
specimen signatures of each of the Authenticating
Agent's officers, employees or agents who has been
authorized by the Authenticating Agent to
authenticate Certificated Notes, but the Agents
will have no obligation or liability to the Company
or the Authenticating Agent in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the
Authenticating Agent on any Certificated Note.
PAYMENT OF EXPENSES: Each Agent shall forward to the Company from time
to time a statement of the out-of-pocket expenses
incurred by such Agent that are reimbursable to it
pursuant to the terms of the Distribution
Agreement. The Company will remit payment to the
Agents promptly after submission of such a
statement.
ADVERTISING COSTS: The Company will determine with the Agents the
form, substance and amount of advertising that may
be appropriate in soliciting orders to purchase the
Certificated Notes. Advertising expenses will be
paid by the Company or reimbursed to the Agents by
the Company.
A-40
EXHIBIT B
XXXXXX FINANCIAL, INC.
MEDIUM TERM NOTES, SERIES G
Due From 9 Months to 30 Years from Date of Issue
TERMS AGREEMENT
______________, 19__
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Subject in all respects to the terms and conditions of the Distribution
Agreement dated October 17, 1995 between Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Chase Securities Inc., Chemical Securities
Inc., Citicorp Securities Inc., First Chicago Capital Markets, Inc., Xxxxxxx,
Xxxxx & Co., X.X. Xxxxxx Securities, Inc., Xxxxxx Brothers, Xxxxxx Brothers
Inc., UBS Securities Inc. and you (the "Agreement"), the undersigned agrees to
purchase the following Notes of Xxxxxx Financial, Inc.:
Aggregate Principal Amount:
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Date(s):
If Floating Rate Note:
Base Rate:
Initial Interest Rate:
Interest Reset Period(s):
Interest Payment Period(s):
EXHIBIT B
Interest Payment Date(s):
Interest Determination Date(s):
Index Maturity:
Spread, if any:
Spread Multiplier, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Calculation Agent:
Stated Maturity Date:
Purchase Price: ___% of Principal Amount
Settlement Date and Time:
Currency of Denomination:
Currency of Payment:
If Currency Indexed Note:
Face Amount:
Indexed Currency:
Base Exchange Rate:
Determination Agent:
If Amortizing Note:
Repayment provisions:
B-2
EXHIBIT B
Optional Redemption, if any:
Initial Redemption Date:
Redemption Price: initially ___% of Principal Amount and declining by ___%
of the Principal Amount on each anniversary of the Initial Redemption Date until
the Redemption Price is 100% of the Principal Amount.
Optional Repayment, if any:
Optional Repayment Dates:
Optional Repayment Prices:
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
Modification, if any, in the requirements to deliver the documents specified in
Section 5(B)(b) of the Agreement:
Period during which additional Notes may not be sold pursuant to Section 4(m)
of the Agreement:
Other Provisions:
[______________________________]
By:
-----------------------------
Accepted:
XXXXXX FINANCIAL, INC.
By:
-----------------------------
Title:
--------------------------
B-3
EXHIBIT C
FORM OF OPINION OF COUNSEL TO
XXXXXX FINANCIAL, INC.
The opinion of counsel for the Company, to be delivered pursuant to
Section 4(j), 5(A)(b) or 5(B)(b) of the Distribution Agreement, shall be to the
effect set forth below. In addition, such opinion shall cover such other
matters as the Agent may reasonably require. All references to the
"Registration Statement" shall be to the Registration Statement as amended as of
the date of such opinion, and all references to the "Note Prospectus" shall be
to the Note Prospectus as amended and supplemented as of the date of such
opinion.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority under the laws of such State to own its properties
and conduct its business as described in the Note Prospectus; is duly qualified
to do business as a foreign corporation in good standing in each state or other
jurisdiction in which, in the opinion of such counsel, such qualification is
required, or if in any jurisdiction the Company is not so qualified, the failure
so to qualify does not, considering all such cases in the aggregate, involve a
material risk to the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole; all of the
issued and outstanding shares of capital stock of each subsidiary of the
Company, other than those which, considered in the aggregate as a single
subsidiary, would not constitute a significant subsidiary (as defined in Rule
1-02(v) of Regulation S-X promulgated by the Commission), which are owned by the
Company, are owned by the Company free and clear of all claims, liens,
encumbrances and security interests; each of such subsidiaries of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is
qualified to do business and is in good standing in each state or other
jurisdiction in the United States in which, in the opinion of such counsel, such
qualification is required, or if in any jurisdiction any such subsidiary is not
so qualified, the failure so to qualify does not, considering all such cases in
the aggregate, involve a material risk to the business, properties, financial
position or results of operations of the Company and its subsidiaries, taken as
a whole;
(ii) The Indenture has been duly authorized, executed, and delivered,
has been qualified under the Trust Indenture Act, and constitutes a valid and
legally binding instrument in accordance with its terms; the Notes have been
duly authorized, and, when executed and authenticated as specified in the
Indenture and delivered pursuant to the provisions of this Agreement will
constitute, valid and legally binding obligations of the Company in accordance
with their terms and the terms of the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting
EXHIBIT C
creditors' rights and to general equity principles; and the Notes and the
Indenture conform to the description thereof in the Note Prospectus;
(iii) The Registration Statement has become effective under the Act
and to the best knowledge of such counsel no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or, to the knowledge of such counsel,
threatened by the Commission;
(iv) The Registration Statement and the Note Prospectus, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture Act and the rules
and regulations thereunder; such counsel does not believe that the Registration
Statement, at the time it became effective and as of the date of the opinion, or
the Note Prospectus or any amendment or supplement thereto, as of the date of
this Agreement or the date of the 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; and the documents
incorporated by reference in the Registration Statement or Note Prospectus, when
they became effective under the Act or were filed with the Commission under the
Exchange Act, as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; it being understood that
such counsel need express no opinion as to the financial statements or other
financial data included in any of the documents mentioned in this clause;
(v) To the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Note Prospectus, and there is
no contract or other document of a character required to be described in the
Registration Statement or Note Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements included or
incorporated in the Note Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize such matters;
(vi) The Distribution Agreement and any Terms Agreement have been
duly authorized, executed and delivered by the Company;
C-2
EXHIBIT C
(vii) The Exchange Rate Agent Agreement and the Determination Agent
Agreement, each dated as of the date hereof and entered into by the Company and
The Fuji Bank and Trust Company, as Exchange Rate Agent and Determination Agent,
respectively, have each been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery by the
parties thereto other than the Company) constitute the valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(viii) The Paying Agent and Securities Registrar Agreement dated as
of the date hereof and entered into by the Company and The Fuji Bank and Trust
Company, has been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery by the parties thereto
other than the Company) constitutes the valid and legally binding obligation of
the Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
(ix) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with the
issuance or sale of the Notes by the Company, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required under
state securities laws in connection with the sale of the Notes;
(x) None of the issuance and sale of the Notes, the performance of
the obligations of the Company under the Notes, the Indenture, this Agreement
and any Terms Agreement, the consummation of any of the other transactions
contemplated in this Agreement and any Terms Agreement or the fulfillment of the
terms of this Agreement and any Terms Agreement will conflict with, result in a
breach of, or constitute a default under the charter or by-laws of the Company
or the terms of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a party or bound,
or any order or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any of
its subsidiaries.
C-3
EXHIBIT D
FORM OF LETTER OF
XXXXXX XXXXXXXX LLP
INDEPENDENT ACCOUNTANTS TO THE COMPANY
All references to the "Registration Statement" shall be to the
Registration Statement, as amended as of the date of such letter, and all
references to the "Note Prospectus" shall be to the Note Prospectus as amended
or supplemented as of the date of such letter.
(1) In their opinion, the audited financial statements and financial
statement schedules of the Company and its consolidated subsidiaries included or
incorporated in the Registration Statement and the Note Prospectus and reported
on by them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(2) On the basis of a reading of the amounts included or incorporated
in the Registration Statement and the Note Prospectus in response to Item 301 of
Regulation S-K promulgated by the Commission and of the latest unaudited
financial statements made available by the Company and its subsidiaries, their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited interim financial
information; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes (or drafts thereof where approved
minutes were not available) of the meetings of the stockholders, directors and
executive committees of the Company; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements incorporated in the
Registration Statement and the Note Prospectus, nothing came to their attention
which caused them to believe that:
(a) The amounts in the "Selected Financial Data" included or
incorporated in the Registration Statement and the Note Prospectus, do not agree
with the corresponding amounts in the audited or the unaudited financial
statements from which such amounts were derived, except that, with respect to
the amounts representing the ratio of earnings to fixed charges for each period
presented, such amounts are not accurately derived from worksheets prepared by
the Company;
(b) Any unaudited financial statements of the Company and its
subsidiaries included or incorporated in the Registration Statement and the Note
EXHIBIT D
Prospectus do not comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; or such unaudited
financial statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included or incorporated in the Registration Statement and
the Note Prospectus; or
(c) With respect to the period subsequent to the date of the
most recent financial statements included or incorporated in the Registration
Statement and the Note Prospectus, there was, at a specified date not more than
five business days prior to the date of the letter, any change in the capital
stock or any increase in the total short-term or total long-term debt of the
Company and its consolidated subsidiaries or there were, as of the month-end
date prior to the date of the letter for which financial statements of the
Company and its consolidated subsidiaries are available, any decreases in its
consolidated total assets or its stockholders' equity, in each case as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Note Prospectus, or for the
period from the date of the most recent financial statements included or
incorporated in the Registration Statement and the Note Prospectus to such
month-end date there were any decreases, as compared with the corresponding
period in the preceding year, in total revenue or income before income taxes or
in the total income of the Company and its consolidated subsidiaries, except in
all instances for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Agent; or
(d) The amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Note Prospectus
do not agree with the amounts set forth in the unaudited financial statements
for the same periods or were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and the Note Prospectus;
and
(3) They have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) set forth or incorporated in the Registration Statement and the Note
Prospectus, and in Exhibit
D-2
EXHIBIT D
12 to the Registration Statement, including the information included or
incorporated in Items 1 and 7 of the Company's annual report on Form 10-K,
incorporated therein, or in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in any of the
Company's quarterly reports on Form 10-Q incorporated therein, agrees with the
accounting records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
D-3
