Exhibit 1.1
XxXxxxxxx & Company, Incorporated
$375,000,000
Medium-Term Notes
DISTRIBUTION AGREEMENT
January 23, 2001
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XxXxxxxxx & Company, Incorporated, a Maryland corporation (the
"Company"), proposes to issue and sell from time to time its Medium-Term Notes
(the "Securities") in an aggregate amount up to $375,000,000 and agrees with you
(the "Agent") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints the Agent as an agent of the Company for
the purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to the Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of the Agent to purchase
Securities as principal.
The Securities will be issued under an indenture, dated as of December
5, 2000 (the "Indenture"), between the Company and SunTrust Bank, as Trustee
(the "Trustee"). The Securities shall have the maturity ranges, interest rates,
if any, redemption provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, the Agent
that:
(a) A registration statement on Form S-3 (File No. 333-46490)
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Agent, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, have been declared
effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission (other than the prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), each in the form
heretofore delivered to the Agent); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended at
the time such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus supplement)
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as
amended or supplemented (including by the applicable Pricing Supplement
filed in accordance with Section 4(a) hereof) in relation to the
Securities to be sold pursuant to this Agreement, in the form filed or
transmitted for filing with the Commission pursuant to Rule 424(b)
under the Act and in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (PROVIDED,
HOWEVER, that no representation or warranty is made as to information
contained in or omitted from that
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part of the Registration Statement which shall constitute the
Statement of Eligibility on Form T-1 under the Trust Indenture Act of
the Trustee under the Indenture); PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Agent expressly for use in
the Registration Statement or Prospectus as amended or supplemented to
relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries, taken as a whole, or any material adverse change, or any
adverse development which may reasonably be expected to result in a
material adverse change, in or affecting the business, financial
position, business prospects or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company was incorporated and is validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and the corporate authority
under its Certificate of Incorporation and the Maryland General
Corporation Law (the "MGCL") to own, lease and operate its current
properties and to conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized, and (assuming
due execution, authentication, issuance and delivery of the Securities
as provided in the Indenture) will constitute valid and legally binding
obligations of the Company and each registered holder will be entitled
to the benefits provided by the Indenture, which will be substantially
in the form filed as an exhibit to the Registration Statement and will
be enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law
regarding fraudulent conveyances, fraudulent transfers and preferential
transfers) and as may be limited by the exercise of judicial discretion
and the application of principles of equity including, without
limitation, requirements of good faith, fair dealing, conscionability
and materiality (regardless of whether the Securities are considered in
a proceeding at law or in equity), and except that a waiver of rights
under any usury law may be unenforceable, and except further as
enforcement thereof may be limited by (1) requirements that a claim
with respect to any Securities other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate or exchange prevailing on a date determined
pursuant to applicable law or (2) governmental authority to limit,
delay or prohibit the making of payments outside the United States; the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and constitutes a valid and binding obligation of the
Company and will be enforceable in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law
regarding fraudulent conveyances, fraudulent transfers and preferential
transfers) and as may be limited by the exercise of judicial
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discretion and the application of principles of equity including,
without limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether the Indenture is
considered in a proceeding at law or in equity), and except that a
waiver of rights under any usury law may be unenforceable, and except
further as enforcement thereof may be limited by (1) requirements that
a claim with respect to any Securities other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United
States; and the Indenture conforms in all material respects and the
Securities of any particular issuance of Securities will conform in all
material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The execution, delivery and performance as of the date
hereof by the Company of this Agreement and the Indenture and the
offer, issuance and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or material instrument to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or the By-laws of the Company
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the solicitation of offers to purchase
Securities, the offer, issuance and sale of the Securities or the
consummation by the Company of the other transactions contemplated by
this Agreement, any Terms Agreement or the Indenture, except such as
have been, or will have been prior to the Commencement Date (as defined
in Section 3 hereof), obtained under the Act or the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the solicitation by the Agent of offers to
purchase Securities from the Company and with purchases of Securities
by the Agent as principal, as the case may be, in each case in the
manner contemplated hereby;
(i) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or is in
default in the performance or observance of any obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, which
default may reasonably be expected to result in a material adverse
change in or affecting the business, financial position, business
prospects or results of operations of the Company and its subsidiaries,
taken as a whole;
(j) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, under the caption "United States Taxation", and under the
caption "Plan of Distribution", insofar as they purport to describe the
provisions of the laws and documents specifically referred to therein,
are accurate and fair summaries in all material respects of such laws
or documents;
(k) Other than as set forth in the Prospectus, there are no
actions, suits or proceedings pending or threatened against the Company
or any of its subsidiaries, or to which
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the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject, which,
if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) The Company is not, and immediately after giving effect to
each offering and sale of the Securities will not be, an "investment
company," as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(n) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of
the Company (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
and
(o) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
the Agent hereby agrees, as agent of the Company, to use its reasonable
efforts to solicit and receive offers to purchase the Securities from
the Company upon the terms and conditions set forth in the Prospectus
as amended or supplemented from time to time. So long as this Agreement
shall remain in effect with respect to the Agent, the Company shall
not, without the consent of the Agent, solicit or accept offers to
purchase, or sell, any debt securities with a maturity at the time of
original issuance of 9 months to 40 years from the date of issuance
except pursuant to this Agreement, any Terms Agreement, or except
pursuant to a private placement not constituting a public offering
under the Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities.
However, the Company reserves the right to sell, and may solicit and
accept offers to purchase, Securities directly on its own behalf in
transactions with persons other than broker-dealers, and, in the case
of any such sale not resulting from a solicitation made by the Agent,
no commission will be payable with respect to such sale. These
provisions shall not limit Section 4(f) hereof or any similar provision
included in any Terms Agreement. For purposes of a particular sale of
Securities, upon notifying the Agent, the Company may appoint on a
transaction by transaction basis other persons as agents for the
purpose of soliciting purchases of such Securities from the Company by
others; provided, however, that in the event that the Company so
appoints one or more other persons, the Company and such person or
persons shall execute a counterpart to this Agreement relating to such
particular sale, whereupon from and after the date of such execution,
the term "Agent" shall for purposes of such particular sale include
such person or persons and such person or persons shall be subject to
the terms and conditions stated herein.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
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Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agent and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. The
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in
the Administrative Procedure. The Company will furnish to the Trustee a
copy of the Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agent to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one business day
in New York City, after receipt of notice from the Company, the Agent
will suspend solicitation of offers to purchase Securities from the
Company until such time as the Company has advised the Agent that such
solicitation may be resumed. During such period, the Company shall not
be required to comply with the provisions of Sections 4(a), 4(h), 4(i),
4(j) and 4(k). Upon advising the Agent that such solicitation may be
resumed, however, the Company shall simultaneously provide the
documents required to be delivered by Sections 4(a), 4(h), 4(i), 4(j)
and 4(k), and the Agent shall have no obligation to solicit offers to
purchase the Securities until such documents have been received by the
Agent. In addition, any failure by the Company to comply with its
obligations hereunder, including without limitation its obligations to
deliver the documents required by Sections 4(h), 4(i), 4(j) and 4(k),
shall automatically terminate the Agent's obligations hereunder,
including without limitation its obligations to solicit offers to
purchase the Securities hereunder as agent or to purchase Securities
hereunder as principal.
The Company agrees to pay the Agent a commission, at the time
of settlement of any sale of a Security by the Company as a result of a
solicitation made by the Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
Commission (percentage
of aggregate principal
Range of Maturities amount of Securities sold)
------------------- --------------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years to less than 40 years .825%
40 years and more .900%
(b) Each sale of Securities to the Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the
Company and the Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, the Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by the Agent;
the commitment of the Agent to purchase Securities
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as principal, whether pursuant to any Terms Agreement or otherwise,
shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth; each Terms Agreement shall
specify the principal amount of Securities to be purchased by the
Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with the Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment
for such Securities; and such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. The Agent
proposes to offer Securities purchased by it as principal for sale at
prevailing market prices or prices related thereto at the time of
sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by the Agent from the Company.
For each sale of Securities to the Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details relating
to the issue and delivery of such Securities and payment therefor shall
be as set forth in the Administrative Procedure. For each such sale of
Securities to the Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay the Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities
to be purchased by the Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) The Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or
indirectly, not to solicit offers to purchase, and as principal under
any Terms Agreement or otherwise, directly or indirectly, not to offer,
sell or deliver, such Security in, or to residents of, the country
issuing such currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agent at
the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement between the Agent
and the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities is commenced or on which any
Terms Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with the Agent:
(a) (i) To prepare, with respect to any Securities to be sold
through or to the Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously
approved by the Agent and to timely file such Pricing Supplement
pursuant to Rule 424(b)(3) under the Act; (ii) to make no amendment or
supplement to the Registration Statement or Prospectus, other than any
Pricing Supplement, at any time prior to having afforded the Agent a
reasonable opportunity to review and comment thereon; (iii) to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of the Securities, and during such same period to
advise the Agent, promptly after the Company receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or has become effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of any
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prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or Prospectus or
for additional information; and (iv) in the event of the issuance of
any such stop order or of any such order preventing or suspending the
use of any such prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal; (provided,
however, that notwithstanding any other provision of this subsection,
except as set forth below, the Company shall not be required to give
the Agent (directly or through counsel) notice of its intention to
file, to furnish the Agent (directly or through counsel) a copy in
advance of filing, or to make available to the Agent (directly or
through counsel) upon filing (A) Quarterly Reports on Form 10-Q, any
Current Report on Form 8-K relating solely to the inclusion of
additional financial information (including a press release containing
such information) or any filings pursuant to Section 14 of the
Exchange Act, provided however, that the Company promptly notifies the
Agent and counsel to the Agent of such filings with the Commission,
and provided further that, if any such document is to be filed in
order that the Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in light of the
circumstances then existing, then the Company shall give immediate
notice (prior to the filing of any such document) to the Agent to
cease solicitations of offers to purchase the Securities in its
capacity as agent and to cease sales of any Securities the Agent may
then own as principal pursuant to a Terms Agreement; (B) any pricing
supplement to the Prospectus in connection with a sale of the
Securities (except that a pricing supplement shall be provided to the
Agent who solicits the sale or purchase of or who purchases as
principal the Securities to which such pricing supplement relates);
(C) any amendment or supplement to the Prospectus that relates
exclusively to an offering of debt securities other than the
Securities; or (D) any Current Report on Form 8-K filed solely for the
purpose of incorporating an exhibit by reference into a registration
statement, except that the Company shall make available to the Agent
any such Current Report on Form 8-K promptly after the filing
thereof);
(b) Promptly from time to time to take such action as the
Agent may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as the Agent may
reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
PROVIDED, HOWEVER, that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference
therein, all in such quantities as the Agent may reasonably request
from time to time; and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by the Agent as
principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Agent and
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request the Agent, in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Securities from the Company (and, if
so notified, the Agent shall cease such solicitations as soon as
practicable, but in any event not later than one business day later);
and if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus as then amended or supplemented, to so
advise the Agent promptly by telephone (with confirmation in writing)
and to prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or the Prospectus
as then amended or supplemented that will correct such statement or
omission or effect such compliance; PROVIDED, HOWEVER, that if during
such same period the Agent continues to own Securities purchased from
the Company by the Agent as principal or the Agent is otherwise
required to deliver a prospectus in respect of transactions in the
Securities, the Company shall promptly prepare and file with the
Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
the Agent copies of all reports or other communications (financial or
other) furnished to shareholders, and deliver to the Agent (i) as soon
as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and
(ii) such other publicly available information concerning the business
and financial condition of the Company as the Agent may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(f) That, from the date of any Terms Agreement with the Agent
or other agreement by the Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as
notified to the Company by the Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9 months
after such Time of Delivery and are substantially similar to the
Securities, without the prior written consent of the Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by the Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with the Agent, shall be
deemed to be an affirmation to the Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as though made at and as of
such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities
relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or by an
9
amendment or supplement relating solely to the interest rates,
interest payment dates or maturity dates of the Securities or the sale
of other securities) each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and
each time the Company sells Securities to the Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel to the Agent, as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish to such
counsel such papers and information as they may reasonably request to
enable them to furnish to the Agent the opinion or opinions referred
to in Section 6(b) hereof;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement or by an amendment or supplement relating solely to the
interest rates, interest payment dates or maturity dates of the
Securities or the sale of other securities) each time a document filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus and each time the Company sells Securities to the Agent as
principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished forthwith
to the Agent the written opinions of the Associate General Counsel of
the Company and Xxxxx & Xxxxxxx LLP, outside counsel to the company,
dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form
satisfactory to the Agent, to the effect that the Agent may rely on the
opinion of such counsel referred to in Section 6(c) hereof which was
last furnished to the Agent to the same extent as though it were dated
the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such opinion, an opinion of the same tenor
as the opinion of such counsel referred to in Section 6(c) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented and each time that a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, in either case to set forth financial
information included in or derived from the Company's consolidated
financial statements or accounting records, and each time the Company
sells Securities to the Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a letter
under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish the Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to the Agent, of the same tenor
as the letter referred to in Section 6(d) hereof but modified to relate
to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other information are available as
of a date not more than five business days prior to the date of such
letter; PROVIDED, HOWEVER, that, with respect to any financial
information or other matter, such letter may reconfirm as true and
correct at such date as though made at and as of such date, rather than
repeat, statements with respect to such financial information or other
matter made in the letter referred to in Section 6(d) hereof which was
last furnished to the Agent;
10
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement or by an amendment or supplement relating solely to the
interest rates, interest payment dates or maturity dates of the
Securities or the sale of other securities) each time a document filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus and each time the Company sells Securities to the Agent as
principal and the applicable Terms Agreement specifies the delivery of
a certificate under this Section 4(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to the Agent a certificate, dated
the date of such supplement, amendment, incorporation or Time of
Delivery relating to such sale, as the case may be, in such form and
executed by such officers of the Company as shall be reasonably
satisfactory to the Agent, to the effect that the statements contained
in the certificates referred to in Section 6(i) hereof which was last
furnished to the Agent are true and correct at such date as though made
at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred to in said
Section 6(i) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase
Securities from the Company as the result of an offer to purchase
solicited by the Agent the right to refuse to purchase and pay for such
Securities if, on the related settlement date fixed pursuant to the
Administrative Procedure, any condition set forth in Section 6(a),
6(e), 6(f) or 6(g) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall
be substituted, for purposes of this Section 4(l), for the respective
judgments of the Agent with respect to certain matters referred to in
such Sections 6(e) and 6(g), and that the Agent shall have no duty or
obligation whatsoever to exercise the judgment permitted under such
Sections 6(e) and 6(g) on behalf of any such person).
5. The Company covenants and agrees with the Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to the Agent; (ii) the reasonable fees,
disbursements and expenses of counsel for the Agent in connection with the
establishment of the program contemplated hereby, any opinions to be rendered by
such counsel hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and legal investment memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iv) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 4(b) hereof, including the
fees and disbursements of counsel for the Agent in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating the Securities;
(vi) any filing fees incident to, and the fees and disbursements of counsel for
the Agent in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vii) the
cost of preparing the Securities; (viii) the fees and expenses of any Trustee
and any agent of any Trustee and any transfer or paying agent of the Company and
the fees and disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (ix) any advertising expenses
connected with the solicitation of offers to purchase and the sale of Securities
so long as such advertising expenses have been
11
approved by the Company; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof, the
Agent shall pay all other expenses it incurs.
6. The obligation of the Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of the Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in the Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of the Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of the
Agent;
(b) At the Commencement Date and, if specified in a Terms
Agreement, if any, at the time of delivery of the Securities described
in such Terms Agreement, the Agent or the Purchasing Agent, as the case
may be, shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the Agent, such opinion or opinions, dated the Commencement Date or
such date of delivery, as the case may be, with respect to the
incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as
they may require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters. In rendering such opinion, Xxxxxxx Xxxxxxx &
Xxxxxxxx may rely as to the incorporation of the Company and all other
matters governed by Maryland law upon the opinion of Xxxxx & Xxxxxxx
LLP referred to below.
(c) The Associate General Counsel of the Company and Xxxxx &
Xxxxxxx LLP, outside counsel to the Company, shall have furnished to
the Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to the Agent, in substantially the
forms attached hereto as Annexes III and IV, respectively.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to the Agent, to the effect set
forth in Annex V hereto;
12
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior
to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery there shall not have been
any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, other than as set
forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of
the Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by the Agent of offers to
purchase Securities from the Company or the purchase by the Agent of
Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof or on any applicable Terms
Agreement (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof or of any applicable Terms
Agreement there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the New York Stock Exchange;
(iii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in the clause (iv) in the
judgment of the Agent makes it impracticable or inadvisable to proceed
with the solicitation of offers to purchase Securities or the purchase
of the Securities from the Company as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated in the Prospectus;
(h) On the date hereof or during the period from the date of
an acceptance of an offer to purchase Securities through the date of
settlement of such sale or during the period from the date of any
applicable Terms Agreement through the date of closing under such Terms
Agreement, with respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or
any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on
13
commercial banking activities in the country or countries issuing such
currency, currencies or composite currency, the outbreak or escalation
of hostilities involving, the occurrence of any material adverse
change in the existing financial, political or economic conditions of,
or the declaration of war or a national emergency by, the country or
countries issuing such currency, currencies or composite currency or
the imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency,
currencies or composite currency; and
(i) The Company shall have furnished or caused to be
furnished to the Agent certificates of officers of the Company dated
the Commencement Date and each applicable date referred to in Section
4(k) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be reasonably satisfactory to the
Agent, based on such officers' knowledge after due inquiry, as to the
accuracy of the representations and warranties of the Company herein at
and as of the Commencement Date or such applicable date, as the case
may be, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters set forth in
subsections (a) and (e) of this Section 6, and as to such other matters
as the Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless the Agent against
any losses, claims, damages or liabilities, joint or several, to which
the Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the
Company by the Agent expressly for use therein.
(b) The Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by the Agent
expressly for use therein; and will
14
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and the 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 the Agent on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the Company bear to
the total commissions or discounts received by the Agent in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by
the Company on the one hand or by the Agent on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
15
Company and the Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by PER
CAPITA allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), the Agent shall not be required to contribute any
amount in excess of the amount by which the total public offering price
at which the Securities purchased by or through it were sold exceeds
the amount of any damages which the 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.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls the Agent within the meaning of the Act; and the
obligations of the Agent under this Section 7 shall be in addition to
any liability which the Agent may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. The Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of the Agent hereunder (other
than in respect of any purchase by the Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. The Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by the Agent and has been accepted by the Company, but
the Agent shall not have any liability to the Company in the event such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by the Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Agent or any controlling person of the Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Agent or the Company upon the giving of written notice of such
suspension or termination to the Company or the Agent, as the case may be. In
the event of such suspension or termination, this Agreement shall remain in full
force and effect with respect to the rights and obligations of any party which
have previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination and in any event, this Agreement shall remain in full
force and effect insofar as the fourth paragraph of Section 2(a), and Sections
4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
16
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Xxxxxxx, Xxxxx & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Credit Department, and if to the Company, shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Secretary.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, the Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls the Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from the Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
* * *
17
If the foregoing is in accordance with your understanding, please sign
and return to us 5 counterparts hereof, whereupon this letter and the acceptance
by you thereof shall constitute a binding agreement between the Company and you
in accordance with its terms.
Very truly yours,
XxXxxxxxx & Company, Incorporated
/s/ Xxxxxxx X. Xxxxx, Xx.
By:..............................
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President & Controller
Accepted in New York, New York,
as of the date hereof:
/s/ Xxxxxxx, Sachs & Co.
............................................
(Xxxxxxx, Xxxxx & Co.)
