Exhibit 99.2
COMMERCIAL PAPER ISSUING AND PAYING AGENT
AGREEMENT
Agreement, dated as of March 30, 2005, between Citibank, N.A., a
national banking association, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Citibank") and Xxxxxx Corporation, a corporation organized under
the laws of the State of Delaware, having an office at 0000 X XXXX Xxxx,
Xxxxxxxxx, XX 00000 (the "Company").
WITNESSETH:
THAT WHEREAS, the Company wishes to appoint Citibank as its agent in
connection with the issuance and payment of its short-term promissory notes
described below and Citibank wishes to accept such appointment, each on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties hereby agree as follows:
SECTION 1. APPOINTMENT AND ACCEPTANCE
The Company hereby appoints Citibank as its agent for the Company in
connection with the issuance and payment of Notes (as defined below), and
Citibank agrees to act as such upon the terms and conditions set forth in this
Agreement.
SECTION 2. FORM OF NOTES
The Company's short-term promissory notes to be issued by the Company
hereunder shall mean promissory notes of the Company, offered for sale in a
transaction which is exempt from registration under either (i) Section 4(2) of
the Securities Act of 1933, as amended (the "1933 Act"), and having maturities
of 390 days or less, or (ii) Section 3(a)3, or 3(a)2 of the 1933 Act and having
maturities of 270 days or less, and will be book-entry notes only represented by
a master note issued by the Company in connection with the book-entry commercial
paper program of The Depository Trust Company ("DTC") or other depository
(book-entry notes herein called the "Notes" and individually a "Note").
SECTION 3. ISSUANCE OF NOTES; AUTHORIZED AGENTS
(A) Pursuant to the Citi Treasury Manager ("CTM") Agreement with
Citibank, Citibank will accept issuance and payment
instructions for the Notes through CTM from certain officers
and employees of the Company, dealers, or others authorized by
the Company to access CTM (the "Authorized Agents").
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If an Authorized Agent specifies that a Note shall be
issued in book-entry form represented by a Master
Note, the Authorized Agent shall transmit its
instructions through CTM in accordance with the
standard prevailing book-entry Note program
procedures of the DTC. The release by an Authorized
Agent of the issuance instructions to the DTC shall
consititute the issuance of a book-entry Note.
(B) The Authorized Agents shall not instruct Citibank to issue any
Note with a maturity date which is (i) greater than the tenor
allowable under the applicable law or (ii) a day on which
Citibank's or, the appropriate depository's offices in New
York, New York are not open for business. If applicable under
this Agreement, Extendible Commercial Notes ("ECNs") shall
have maturities of 390 days or less.
(C) The Company, or in the case of its dealers, the dealer, will
supply Citibank with an incumbency certificate listing the
names of the Authorized Agents together with specimens of
their signatures. Until Citibank receives a subsequent
incumbency certificate from the Company or the dealer, as the
case may be, Citibank shall be entitled to rely on the last
such certificate delivered to it for purposes of determining
the Authorized Agents.
SECTION 4. DELIVERY OF NOTES AND PAYMENT FOR NOTE
(A) All Notes shall be delivered in accordance with DTC rules.
(B) All funds to be used in payment for Notes are to be credited
to the Company's account number 00000000 at Citibank. This
account may be changed upon written instruction from the
Company, accepted by Citibank.
SECTION 5. PAYMENT OF NOTES AT MATURITY
Citibank agrees to effect payment on the Company's behalf by debiting
the Company's Account maintained with Citibank in the amount of the face value
amount of such Note, plus interest, if applicable, and to enter appropriate
notations of payment. The Company agrees to maintain a sufficient credit balance
in said account to pay each Note at maturity.
The Company acknowledges that nothing in this Agreement shall obligate Citibank
to extend credit, grant financial accommodation, or otherwise advance funds to
the Company for the purpose of making any such payments or part thereof or
otherwise effecting such transactions.
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SECTION 6. INSTRUCTIONS
(A) The Company understands that all instructions are to be in
writing, directed to Citibank's Agency and Trust Department.
Instructions transmitted through computer terminals (including
CTM) or by facsimile shall be considered written instructions
for the purpose of this Agreement.
(B) All instructions with respect to the issuance of Notes must be
given via computer terminal (including CTM) by 1:00 p.m. New
York time.
(C) Prepayment instructions and cancellations of a previous
issuance instruction will be accepted for bookentry issuances
from an Authorized Agent if received by Citibank by [2:00]
p.m. and, in the case of facsimile instructions, only after a
confirming telephone call back to another Authorized Agent of
the entity which gave the instruction. Regarding ECNs, notice
that the Company will not redeem any Notes on the relevant
Initial Redemption Date ("as defined in the applicable
Extendible Commercial Note Announcement") must be received in
writing by Citibank by 11:00 a.m., New York time, on such
Initial Redemption Date.
(D) If Citibank acts on any instruction sent or purported to be
sent by an Authorized Agent, Citibank shall not, provided it
complies with this Section 6, be responsible if that
instruction is not an authorized instruction of the Company or
is not in the form the Company sent or intended to send
(whether due to fraud, distortion or otherwise) and the
Company shall indemnify Citibank against any loss, liability
claim or expense (including reasonable legal fees) it may
incur in connection with its acting in accordance with that
instruction.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(A) The Company represents and warrants as follows:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of the
state of its incorporation and has the corporate
power and authority to own its property, to carry on
its business as presently being conducted, to execute
and deliver this Agreement, and the Notes, and to
perform and observe the conditions hereof and
thereof.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes
the legal, valid and binding agreement of the
Company. The issuance and sale of Notes by the
Company hereunder have been duly and validly
authorized by the Company and when delivered by
Citibank as provided in this Agreement, each Note
will be the legal, valid and binding obligation of
the Company.
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(iii) The offer and sale by the Company of such Notes will
constitute exempt transactions under Section 4(2) or
3(a)(3) of the 1933 Act and, accordingly,
registration of the Notes under the 1933 Act will not
be required. Qualification of an indenture with
respect to the Notes under the Trust Indenture Act of
1939, as amended, will not be required in connection
with the offer, issuance, sale or delivery of the
Notes.
(iv) No consent or action of, or filing or registration
with, any governmental or public regulatory body or
authority is required to authorize, or is otherwise
required in connection with, the execution, delivery
or performance of this Agreement or the Notes.
(B) Each issuance of Notes by the Company shall be deemed a
representation and warranty by the Company to Citibank, as of
the date thereof, that, both before and after giving effect to
such issuance the representations and warranties of the
Company set forth in Section 7(A) hereof remain true and
correct on and as of such date as if made on and as of such
date (except to the extent such representations and warranties
expressly relate solely to an earlier date).
SECTION 8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Any claims made under this Agreement shall be
heard and determined in the Federal or state courts located in the State of New
York. The Company and Citibank hereby agree to submit to the jurisdiction of the
Federal and state courts located in the State of New York for the resolution of
any proceedings brought therein relating to claims arising from or in connection
with this Agreement.
SECTION 9. FEES
The Company agrees to pay the fees and expenses for the services
rendered under this Agreement, as set forth in writing from time to time,
between the Company and Citibank. The Company will be provided thirty (30) days
advance notice of any prospective increase in fees.
SECTION 10. INDEMNIFICATION
The Company agrees to indemnify Citibank and its affiliates, their
respective directors, officers, employees, and agents, and any successor thereto
(each such person being an "Indemnified Person") from and against any and all
losses, claims, damages and liabilities, joint or several, to which such
Indemnified Person may become subject under any applicable federal or state law,
or otherwise, related to or arising out of any matter or transaction
contemplated by this Agreement, and to the performance by Citibank of the
services contemplated by this
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Agreement and shall promptly reimburse any Indemnified Person for all expenses
(including, but not limited to, fees and disbursements of internal and external
counsel), as they are incurred , in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Person is a party,
provided, however, that the Company shall not be liable in any such case to the
extent such loss, claim, damage or liability is finally judicially determined to
have resulted from an Indemnified Person's gross negligence or willful
misconduct.
SECTION 11. ASSIGNMENT
This Agreement shall not be assignable by either party without the
written consent of the other and any purported assignment made in contravention
of this Section 11, shall be null and void and of no effect whatsoever. However,
Citibank shall have the right to assign, transfer, or subcontract either in
whole or in part, any of its rights or obligations under this Agreement to any
affiliate of Citibank, upon at least 30 days prior written notice to the
Company.
SECTION 12. FORCE MAJEURE
Either party is excused from performance and shall not be liable for
any delay in delivery or for nondelivery, in whole or in part, caused by the
occurrence of any contingency beyond the control of the party including, but not
limited to, fires, civil disobedience, riots, rebellions, accident, explosion,
flood, storm, Acts of God and similar occurrences.
SECTION 13. TERMINATION
This Agreement may be terminated by either party upon 30 days prior
written notice to the other. Termination of this Agreement shall not affect the
Company's liabilities to Citibank hereunder in connection with any Notes issued
prior to such termination. Citibank shall have a continuing obligation to act on
behalf of the Company in accordance with the terms and conditions of this
Agreement with respect to Notes outstanding, as of the termination date, until
such Notes have matured and been paid by the Company, but shall have no
obligation with respect to the issuance of Notes after such termination date.
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SECTION 14. COMPLETE AGREEMENT; COUNTERPARTS.
This Agreement, together with the Schedules attached hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes in all respects all prior proposals, negotiations,
conversations, discussions and agreements between the parties concerning the
subject matter hereof. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement as of the day and year set forth above.
XXXXXX CORPORATION CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxxxx Xxxxxxxxxx
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(print) (print)
Title: Assistant Treasurer Title: Vice President
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Date: March 25, 2005 Date: March 30, 2005
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