EXHIBIT 1(C)
[Series __ Notes]
XXXXX FARGO & COMPANY
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
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[**List Agents]
Dear Sirs:
Xxxxx Fargo & Company, a Delaware corporation (the "Company"), confirms
its agreement with _____________________________________________ (individually,
an "Agent", and collectively, the "Agents") with respect to the issue and sale
by the Company of its Medium-Term Notes described herein (the "Notes"). The
Notes are to be issued pursuant to an indenture (the "Indenture") dated as of
____________________, as amended from time to time, between the Company and
__________________________________, as trustee (the "Trustee"). As of the date
hereof, the Company has authorized the issuance and sale of up to U.S.
$______________ aggregate initial public offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies or foreign currency units as the Company shall designate at the time
of issuance) of Notes through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such additional Notes may be
sold through or to the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and any Agent) to any Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-_________) for the
registration of securities, including the Notes, under the Securities Act of
1933, as amended, (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the SEC under the
1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement (and
any further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus
constituting a part thereof, and any prospectus supplements relating to the
Notes, including all documents incorporated therein by reference, as from time
to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the Agents
for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf or through any of its affiliated entities and other
agents, the Company hereby appoints the Agents as the agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that,
except as otherwise contemplated herein, whenever the Company determines to sell
Notes directly to any Agent as principal for resale to others, it will enter
into a Terms Agreement (hereafter defined) relating to such sale in accordance
with the provisions of Section 3(b) hereof. In addition, an Agent may offer the
Notes it has purchased as principal to other dealers and may sell Notes to any
dealer at a discount, and, unless otherwise specified in an applicable Pricing
Supplement, such discount allowed to any dealer will not be in excess of the
discount to be received by such Agent. No Notes that the Company has agreed to
sell pursuant to this Agreement shall be deemed to have been purchased and paid
for or sold by the Company until such Notes shall have been delivered to the
purchaser thereof against payment by such purchaser. The Company may accept
offers to purchase Notes through an agent other than an Agent; provided,
however, that the Company shall give each of the Agents notice of its decision
to accept such an offer to purchase Notes promptly following such acceptance.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
receipt of instructions from the Company, each of the Agents will use its
reasonable efforts to solicit purchases of such principal amount of the Notes as
the Company and such Agent shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of such
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
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(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of the Notes on behalf of the Company and in performing its other
obligations hereunder (other than with respect to any purchase by any Agent as
principal pursuant to a Terms Agreement), each Agent shall act solely as agent
for the Company and not as principal. 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,
provided, however, that such Agent shall not have any liability to the Company
in the event any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall hold such Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Company. The Agents
shall not have any obligation to purchase Notes from the Company as principal,
but any Agent may agree from time to time to purchase Notes as principal. Any
such purchase of Notes by an Agent as principal shall be made in accordance with
Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree that any Notes the
placement of which any Agent arranges shall be placed by such Agent, and any
Notes purchased by such Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through such Agent as agent or to such Agent as
principal), as of the date of each delivery of Notes (whether through such Agent
as agent or to such Agent as principal) (the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective or any Annual Report on Form 10-K is filed by the Company
with the SEC and as of each Representation Date, 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. The Prospectus as of the date hereof does not,
and as of each Representation Date will not, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this
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subsection shall not apply to (A) that part of the Registration
Statement which constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act and (B) statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
of the Agents expressly for use in the Registration Statement or
Prospectus.
(ii) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other information
in the Prospectus, did not 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 in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(iii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement and any Terms Agreement have
been duly authorized and, upon execution and delivery by each Agent,
will be a valid and binding agreement of the Company; the Indenture has
been duly authorized and, upon execution and delivery by the Trustee,
will be a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally, or
by general equity principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign currency or
foreign currency unit judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; the establishment
of the Medium-Term Note Program, Series __, of the Company has been
duly authorized; when the terms of a particular issuance of the Notes
have been established in accordance with the Indenture, and such Notes
are issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms
Agreement, the Notes will have been duly authorized, executed and
delivered and will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate or
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exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes and the Indenture will be
substantially in the form heretofore delivered to each Agent and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the
benefits provided by the Indenture.
(iv) Florida Blue Sky Disclosure. The Company has complied
with all provisions of Section 517.075, Florida Statutes (Chapter
92-198, Laws of Florida).
(v) Investment Company Act of 1940. Neither the Company nor
any subsidiary of the Company is subject to registration or regulation
under the Investment Company Act of 1940, as amended.
(vi) Legal Proceedings; Contracts. Except as may be set forth
in the Registration Statement or Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or might materially
affect the properties or assets thereof; 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 1933 Act
or by the 1933 Act Regulations which have not been so filed.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to any Agent or to counsel for any Agent in connection
with an offering of Notes or the sale of Notes to such Agent as principal shall
be deemed a representation and warranty by the Company to such Agent as to the
matters covered thereby on the date of such certificate.
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company, to use its reasonable
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, such Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised such Agent that such
solicitation may be resumed.
The Company agrees to pay the presenting Agent (or jointly to two or
all Agents if such solicitation is jointly made) on the settlement date
applicable to such Note a commission equal
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to the applicable percentage of the principal amount of each Note sold by the
Company as a result of a solicitation made by such Agent as set forth in
Schedule A hereto.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the applicable Agent and set forth
in a pricing supplement to the Prospectus (a "Pricing Supplement") to be
prepared following each acceptance by the Company of an offer for the purchase
of Notes. All Notes sold through any Agent as agent will be sold at 100% of
their principal amount unless otherwise agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement, if confirmed in writing by facsimile
transmission or otherwise) between an Agent and the Company is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and an Agent. Each such Terms Agreement,
whether oral or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit A hereto. An Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. An Agent
may utilize a selling or dealer group in connection with the resale of the Notes
purchased and the Agents may sell any such Notes to any dealers at a discount
not in excess of the discount payable to the Agents by the Company. Such Terms
Agreement shall also specify the requirements for the officer's certificate,
opinions of counsel and comfort letter pursuant to Sections 7(b), 7(c) and 7(d)
hereof.
(c) Administrative Procedures. The Company and the Agents hereby agree
to the administrative procedures with respect to the sale of Notes set forth in
Annex A hereto (the "Procedures"). Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify each Agent
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the
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receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus, (iv) of any request by the SEC for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give each
Agent notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise; the Company will not file any amendment or
supplement to the Registration Statement or the Prospectus after the date of any
Terms Agreement and prior to the related Settlement Date which shall be
disapproved by any Agent party to such Terms Agreement promptly after reasonable
notice thereof unless in the opinion of counsel to the Company such amendment or
supplement is required by law, provided, however, that the foregoing requirement
shall not apply to the Company's periodic filings with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, copies of which filings the
Company will cause to be delivered to the Agents promptly after being
transmitted for filing with the SEC.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to each Agent as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as such Agent may
reasonably request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably request
so long as the Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agent and will file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act not later than the time period specified therein.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act
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or the 1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to each Agent to cease the solicitation of offers to purchase the Notes
in such Agent's capacity as agent and to cease sales of any Notes such Agent may
then own as principal pursuant to a Terms Agreement, and the Company will
promptly prepare and file with the SEC such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or immediately after
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to each Agent, confirmed in writing.
(g) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
any Agent may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise each Agent of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose and will promptly
notify each Agent if at any time the Company must make or amend a disclosure
required by Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(i) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement with any Agent, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without such Agent's prior consent, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with terms substantially similar to
those of the Notes which are the subject of such Terms Agreement (other
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than the Notes that are to be sold pursuant to such Terms Agreement and
commercial paper in the ordinary course of business).
(k) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this Section
with respect to any Agent during any period from the time (i) such Agent shall
have suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company and (ii) such Agent shall not then have a
legal obligation to deliver a prospectus with respect to the sale by it of Notes
which it has acquired as principal pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or such Agent shall have such legal obligation to deliver a
prospectus. Upon the request of the Company, each Agent will inform the Company
whether it has the legal obligation to deliver a prospectus with respect to the
sale by it of Notes which it has acquired under a Terms Agreement.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to solicit offers to purchase the Notes
as agent of the Company, the obligations of any purchasers of the Notes sold
through any Agent as agent, and any obligation of any Agent to purchase Notes
pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, each Agent shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to such Agent:
1. Opinion of Company Counsel. The opinion of Xxxxxxx X.
Xxxxxx, Executive Vice President and General Counsel of the Company, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement, and is
duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; and each of Norwest
Bank Minnesota, National Association ("Norwest Bank
Minnesota"), and Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo Bank"),
is a national banking association duly chartered and is in
good standing under the National Bank Act; and WFC Holdings
Corporation ("WFC Holdings" and together with Norwest Bank
Minnesota and Xxxxx Fargo Bank, the "Significant
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Subsidiaries") is duly organized and validly existing in good
standing under the laws of the State of Delaware.
(iii) Each of the Company and each Significant
Subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
business, condition or properties of the Company and its
subsidiaries, taken as a whole.
(iv) All of the issued and outstanding capital stock
of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and (except as provided in 12
U.S.C. ss.55) non-assessable, and is owned by the Company,
free and clear of any perfected security interest and, to the
best of such counsel's knowledge of any other security
interests, claims, liens or encumbrances.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid and
binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equitable principles, and except
further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign currency
or foreign currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or
the making of payments outside the United States.
(vii) The Notes are in due and proper form and have
been duly established in conformity with Section 301 of the
Indenture. When the specific terms of an issue of Notes have
been fixed by an authorized officer of the Company by
executing and delivering to the Trustee an authentication
certificate supplemental to an officers'
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certificate, such Notes will be duly authorized for issuance,
offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the
consideration therefor, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
in foreign currency or currency units or payments outside the
United States, and each holder of Notes will be entitled to
the benefits of the Indenture.
(viii) The statements in the Prospectus under the
captions "Description of Debt Securities", "Plan of
Distribution" and "Description of Notes", insofar as they
purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of
such provisions.
(ix) The Indenture is qualified under the 1939 Act.
(x) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or, to the best of such counsel's
knowledge, threatened by the SEC; and any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b)
under the 1933 Act.
(xi) At the time the Registration Statement became
effective, the Registration Statement (other than financial
statements, schedules and other financial data included in the
documents incorporated by reference therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act
and the regulations under each of those Acts.
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(xii) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending or threatened
which are required to be disclosed in the Prospectus, other
than those disclosed therein.
(xiii) The execution and delivery of this Agreement
or of the Indenture, or the consummation by the Company of the
transactions contemplated by this Agreement and the Notes and
the incurrence of the obligations therein contemplated, will
not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Significant Subsidiary pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any
Significant Subsidiary is a party or to which any of the
property or assets of the Company or any Significant
Subsidiary is subject, or any law, administrative regulation
or administrative or court decree known to such counsel to be
applicable to the Company of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over
the Company; nor will such action result in any violation of
the provisions of the charter or by-laws of the Company.
(xiv) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references
thereto are correct.
(xv) No consent, approval, authorization, order or
decree of any court or governmental agency or body including
the SEC is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities laws.
(xvi) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder (other than financial
statements, schedules and other financial data included
therein, as to which no opinion need be rendered).
12
2. Opinion of Counsel to the Agents. The opinion of
_____________ ______________, counsel to the Agents, covering the
matters referred to in subparagraph (1) under the subheadings (i), (v),
(vi), (vii), (ix), (x) and (xi) above.
3. In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Xx. Xxxxxx and _________________________ shall
each additionally state that nothing has come to his or their attention
that would lead him or them to believe that the Registration Statement
(other than financial statements, schedules or other financial data
included or incorporated by reference therein, as to which no statement
need be made), at the time it became effective, and if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been
filed by the Company with the SEC subsequent to the effectiveness of
the Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the
Prospectus, as amended or supplemented at the date hereof, or (if such
opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement and
at the Settlement Date with respect thereto, as the case may be,
contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) Officer's Certificates. At the date hereof the Agents shall have
received a certificate of the Chairman of the Board, the President or any
Executive Vice President and the principal financial or accounting officer of
the Company, provided, however, that no person shall sign such certificate in
more than one official capacity, dated as of the date hereof, to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, general business affairs
or business prospects of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received
a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in form and
substance satisfactory to the Agents and the Company, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
13
(d) Other Documents. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents shall have
been furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of any Agent, any applicable Terms Agreement) may be terminated by any
Agent insofar as this Agreement relates to such Agent by notice to the Company
at any time and any such termination shall be without liability of any party to
any other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through any Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the presenting Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes, and each delivery of Notes to
any Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement are true and correct at the time of such acceptance or sale, as the
case may be, 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 to
such Agent, of the Note or Notes relating to such acceptance or sale, as the
case may be, 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 Prospectus as amended and supplemented to each such time).
14
(b) Subsequent Delivery of Certificates. If so requested by such Agent,
each time that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement, and other than by an amendment
or supplement which relates exclusively to an offering of securities other than
the Notes) or there is filed with the SEC any document incorporated by reference
into the Prospectus, or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished to such Agent forthwith a certificate
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form satisfactory to such Agent to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were last
furnished to such Agent are true and correct at the time of such amendment,
supplement, filing or sale, 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 and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement or solely for the
inclusion of additional financial information, and other than by an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes) or there is filed with the SEC any document incorporated by reference
into the Prospectus, or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent and to counsel to
such Agent a written opinion of the General Counsel of the Company, or other
counsel satisfactory to such Agent, dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and substance satisfactory to
such Agent, of the same tenor as the opinion referred to in Section 5(a)(1)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion; or, in lieu of such opinion, counsel last furnishing such opinion to
such Agent shall furnish each Agent with a letter to the effect that the Agents
may rely on such last opinion to the same extent as though it was dated the date
of such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance). Each time that the Company files with the SEC an Annual Report on
Form 10-K that is incorporated by reference into the Prospectus, counsel to the
Agents shall furnish to each Agent a written opinion dated the date of such
filing of the same tenor as the opinion referred to in Section 5(a)(3) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish each Agent with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
15
(d) Subsequent Delivery of Comfort Letters. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information, or there is
filed with the SEC any document incorporated by reference into the Prospectus
which contains additional financial information, or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to any Agent pursuant to a
Terms Agreement, the Company shall cause KPMG Peat Marwick LLP forthwith to
furnish each Agent a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same general tenor as the letter
referred to in Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of such
letter, and 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, however, that if the Registration Statement or the
Prospectus is amended or supplemented solely to include financial information as
of and for a fiscal quarter, KPMG Peat Marwick LLP may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement.
SECTION 8. Indemnification.
Indemnification of the Agents. The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls each Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or the
Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
16
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the Agents
to the extent set forth below) reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
(b) Indemnification of Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) General. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this Section
8, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing,
and the indemnifying party shall be entitled to participate therein and, to the
extent it shall wish, jointly, with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
the indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
identified separate firm (in addition to any identified local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the Agents
that are indemnified parties in the case of parties to be indemnified pursuant
to paragraph (a) of this Section 8 and by the Company in the case of parties to
be indemnified pursuant to paragraph (b) of this Section 8. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its prior written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity
17
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and each Agent shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and each Agent, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls any Agent within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this
Agreement;
(c) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any Calculation
Agent or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the
Agents incurred in connection with establishment of the program
contemplated hereby and the transactions contemplated hereby other than
in connection with the sale of Notes
18
to an Agent as principal pursuant to a Terms Agreement (unless so
provided in such Terms Agreement);
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation
of any Blue Sky Survey and any Legal Investment Survey;
(g) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to the
Agent of copies of the Indenture and all supplements and amendments
thereto;
(i) any fees charged by rating agencies for the rating of the
Notes;
(j) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Agent or any controlling person of any Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the
Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time, by either the Company
or any Agent
19
(insofar as this Agreement relates to such Agent) upon the giving of 30 days'
written notice of such termination to the other party hereto.
(b) Termination of a Terms Agreement. Any Agent may terminate any Terms
Agreement, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities involving the United States the effect of which is
such as to make it, in the judgment of such Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (ii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Notes are denominated or
payable, or (iii) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of any
applicable Terms Agreement shall have been lowered since that date or if any
such rating agency shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any debt
securities of the Company, or (iv) if there has occurred any material adverse
change in the condition, financial or otherwise, in the business affairs or
business prospects of the Company and its subsidiaries, taken as a whole,
whether or not in the ordinary course of business.
(c) General. In the event of any such termination, none of the parties
will have any liability to the other parties hereto, except that (i) each Agent
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(a) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(g) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 15 hereof shall remain in effect.
20
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Xxxxx Fargo & Company
000 Xxxxxx Xxxxxx
MAC: 0000-000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
If to the Agents:
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon each
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
21
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agent and the Company in accordance with its terms.
Very truly yours,
XXXXX FARGO & COMPANY
By:_________________________________
Name:
Title:
Accepted:
22
SCHEDULE A
As compensation for the services of any Agent hereunder, the Company
shall pay it, on a discount basis, a commission for the sale of each Note equal
to the principal amount of such Note multiplied by the appropriate percentage
set forth below:
MATURITY RANGES PERCENT OF PRINCIPAL AMOUNT
--------------- ---------------------------
From 9 months to less than 1 year...........
From 1 year to less than 18 months..........
From 18 months to less than 2 years.........
From 2 years to less than 3 years...........
From 3 years to less than 4 years...........
From 4 years to less than 5 years...........
From 5 years to less than 7 years...........
From 7 years to less than 10 years..........
From 10 years to less than 15 years.........
From 15 years to less than 20 years.........
From 20 years to 30 years...................
More than 30 years.......................... As agreed at the time
of sale
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent and
the Company pursuant to each Terms Agreement:
Principal Amount: $_________________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis applicable to each
interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent
Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and Original Issue
Discount Fixed Rate Notes, any terms required to be established by the
Internal Revenue Code of 1986, as amended
If Foreign Currency Notes:
Interest rate or interest rate basis
Authorized denominations (including integral multiples) in the
specified currency
Exchange rate agent
Specified currency account (if holder elects to receive
payments in other than U.S. dollars by wire transfer)
If Redeemable:
Redemption Date
Redemption Prices
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ___%
Price to Public: ___%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Payment of Expenses
Syndicate Provisions
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement
Stand-off Agreement pursuant to Section 4(j) of the
Distribution Agreement
A-2
ANNEX A
XXXXX FARGO & COMPANY
Administrative Procedures
These Administrative Procedures relate to the Notes defined in the
Distribution Agreement, dated ____________ (the "Distribution Agreement"), among
Xxxxx Fargo & Company (the "Company") and _____________________ (together, the
"Agents"), to which these Administrative Procedures are attached as Annex A.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture. To the extent any procedure set forth below
conflicts with the provisions of the Notes, the Indenture, the Distribution
Agreement or the applicable Terms Agreement, the relevant provisions of the
Notes, the Indenture, the Distribution Agreement and the applicable Terms
Agreement shall control.
An Agent, in relation to a purchase of a Note by a purchaser solicited
by such Agent, is referred to herein as the "Selling Agent" and, in relation to
a purchase of a Note by such Agent as principal pursuant to a Terms Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Certain duties of the Trustee hereunder may be performed by Norwest
Bank Minnesota, N.A., as Issuing, Paying & Authenticating Agent, and other duly
appointed agents of the Trustee. The Calculation Agent will be Norwest Bank
Minnesota, N.A. Each Note will be issued only in fully registered form, without
coupons, and will be represented by either a global security (a "Global
Security") delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Note, except as provided
in the Indenture.
Book-Entry Securities, which may be payable only in U.S. dollars, will
be issued in accordance with the Administrative Procedure set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures and Certificated Securities will be issued in accordance
with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company, Norwest Bank Minnesota,
N.A., as Issuing Agent, and Norwest Bank Minnesota, N.A., as Paying Agent to
DTC, dated the date hereof, and a Medium-Term Note Certificate Agreement between
the Trustee and DTC dated as of ____________, as amended (the "Certificate
Agreement"), 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 "Date of Settlement" below)
for one or more Book-Entry Securities, the Company will issue a single Global
Security representing up to U.S. $150,000,000 principal amount of all such Notes
that have the same Original Issue Date, Stated Maturity Date and other terms.
Each Global Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear 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 any portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or stolen Global Security, the
most recent Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security (or 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 any Certificated Security.
Denominations:
Book-Entry Securities will be issued in principal amounts of U.S.
$100,000 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. $150,000,000. If one or more Book-Entry Securities having an aggregate
principal amount in excess of $150,000,000 would, but for the preceding
sentence, be represented by a single Global Security, then one Global Security
will be issued to represent each U.S. $150,000,000 principal amount of such
Book-Entry Security or Securities and an additional Global Security will be
issued to represent any remaining principal amount of such Book-Entry Security
or Securities. In such a case, each of the Global Securities representing such
Book-Entry Security or Securities shall be assigned the same CUSIP number.
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
2
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale Information")
to the Company by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate, the
Interest Payment Dates, the initial Interest Payment Date and
whether such Security is an Amortizing Security, and if so,
the amortization schedule;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) If payments thereon are to be determined by reference to an
index, the relevant provisions relating thereto;
(7) Issue Price;
(8) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(9) Net Proceeds to the Company;
3
(10) If a redeemable or repayable Book-Entry Security, provisions
relating to such redemption or repayment;
(11) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement;
(14) Selling Agent or Purchasing Agent;
(15) Original Issue Discount provisions, if any;
[(16) Whether the Book-Entry Security is a Renewable Security, and
if it is a Renewable Security, the Initial Maturity Date and
the Final Maturity Date;]
[(17) Whether the Company has the option to extend the Original
Maturity Date of the Book-Entry Security, and, if so, the
Final Maturity Date of such Book-Entry Security;]
4
[(18) Whether the Company has the option to reset the Interest Rate,
the Spread or the Spread Multiplier of the Book-Entry
Security; and]
(19) Any other applicable terms.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number as soon as
practicable.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC, and DTC shall forward such information to such Agent and Standard & Poor's
Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by DTC on behalf
of the Selling Agent or Purchasing Agent, as the case may be;
(5) Whether such Security is an Amortizing Security (by an
appropriate notation in the comments field of DTC's
Participant Terminal System);
(6) The interest payment period; and
(7) Initial Interest Payment Date for such Book-Entry Security.
D. The Trustee will complete the Global Security, in the form
previously approved by the Company, the Agents and the Trustee.
E. The Trustee will authenticate the Global Security representing such
Book-Entry Security.
F. DTC will credit such Book-Entry Security to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Book-Entry
Security to the Trustee's participant account and credit such Book-Entry
Security to such Agent's participant account
5
at DTC, and (ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Book-Entry Security
less such Agent's commission. The entry of such a deliver order shall constitute
a representation and warranty by the Trustee to DTC that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
H. Unless the relevant Agent is the end purchaser of such security,
such Selling or Purchasing Agent, as the case may be, will enter an SDFS deliver
order through DTC's Participant Terminal System instructing DTC (i) to debit
such Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
J. Upon confirmation of receipt of funds, the Trustee will transfer to
the Company's account, account number ___________, maintained at
____________________, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement Procedure "G".
K. Unless the relevant Agent is the end purchaser of such security,
such Selling or Purchasing Agent, as the case may be, will confirm the purchase
of such Book-Entry Security to the purchaser either by transmitting to the
participants with respect to such Book-Entry Security a confirmation order or
orders through DTC's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. At any time upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
M. DTC will, at any time, upon request of the Company or the Trustee,
promptly furnish to the Company or the Trustee a list of the names and addresses
of the participants for whom DTC has credited Book-Entry Securities.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Security and
arrange to have delivered to the Selling Agent or Purchasing Agent, as the case
may be, such numbers of such Pricing Supplement as the Agent may reasonably
request, not later than 11:00 a.m., New York City time, on the Business Day
following the Trade Date (as defined below). The Company will
6
arrange to file a copy of the Pricing Supplement with the Commission not later
than the close of business of the Commission on the second Business Day
following the date on which such Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will provide a copy of such Pricing Supplement to each investor or
purchaser of the relevant Book-Entry Security or its agent. Pursuant to Rule 434
under the Securities Act, the Pricing Supplement may be delivered separately
from the Prospectus. Outdated Pricing Supplements (other than those retained for
files) will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute "settlement"
with respect to such Book-Entry Security. All orders of Book-Entry Securities
solicited by a Selling Agent or made by a Purchasing Agent and accepted by the
Company on a particular date (the "Trade Date") will be settled on a date (the
"Settlement Date") which is on or before the third Business Day after the Trade
Date pursuant to the "Settlement Procedure Timetable" 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 after the Trade Date.
Settlement Procedure Timetable:
For offers to purchase Book-Entry Securities solicited by a Selling
Agent and accepted by the Company for settlement on the first Business Day after
the Trade Date, Settlement Procedures "A" through "L" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
7
Settlement Procedure Time
-------------------- ----
A 11:00 a.m. on the Trade Date
B 12:00 noon on the Trade Date
C 2:00 p.m. on the Trade Date
D 3:00 p.m. on the day before the
Settlement Date
E 9:00 a.m. on the Settlement Date
F 10:00 a.m. on the Settlement Date
G-H 2:00 p.m. on the Settlement Date
I 4:45 p.m. on the Settlement Date
J-K 5:00 p.m. on the Settlement Date
If a sale is to be settled more than one Business Day after the Trade
Date, Settlement Procedures A, B and C shall be completed as soon as practicable
but in no event later that 11:00 a.m., 12:00 noon and 2:00 p.m., as the case may
be, on the first Business Day after the Trade Date. If the initial interest rate
for a Floating Rate Book-Entry Security has not been determined at the time that
Settlement Procedure "A" is completed and the Settlement Date is at least three
Business Days after the Trade Date, 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 immediately preceding
the Settlement Date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or cancelled, the
Trustee, upon obtaining knowledge thereof, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to such effect by no later
than 2:00 p.m. on the Business Day immediately preceding the scheduled
Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "G", the Trustee may
deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Book-Entry
Security to the Trustee's participant account, provided that the Trustee's
participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "cancelled," make appropriate entries in the Trustee's
records and send such cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with the procedures of the
CUSIP Service Bureau of Standard & Poor's Corporation, be cancelled and not
immediately reassigned. If a withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Securities represented by a Global
Security, the
8
Trustee will exchange such Global Security for two Global Securities, one of
which shall represent such Book-Entry Security or Securities and shall be
cancelled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC, acting
on behalf of such purchaser), such participants and, in turn, the Agent for such
Book-Entry Security may enter delivery orders through DTC's Participant Terminal
System debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then debiting
such Book-Entry Security to such Agent's participant account and crediting such
Book-Entry Security to the Trustee's participant account and shall notify the
Company and the Trustee thereof. Thereafter, the Trustee will (i) immediately
notify the Company of such order and the Company shall transfer to such Agent
funds available for immediate use in an amount equal to the price of such
Book-Entry Security which was credited to the account of the Company maintained
at the Trustee in accordance with Settlement Procedure J, and (ii) deliver the
withdrawal message and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any reason other than default
by the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on an equitable
basis for the loss of its use of funds during the period when the funds were
credited to the account of the Company.
9
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, 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 Securities to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedures "D", "E" and "G", for the authentication and issuance of a
Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Issuance:
Each Certificated Security will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Security will bear an
Original Issue Date, which will be (i) with respect to an original Certificated
Security (or any portion thereof), its original issuance date (which will be the
settlement date) and (ii) with respect to any Certificated Security (or portion
thereof) issued subsequently upon transfer or exchange of a Certificated
Security or in lieu of a destroyed, lost or stolen Certificated Security, the
original issuance date of the predecessor Certificated Security, regardless of
the date of authentication of such subsequently issued Certificated Security.
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
10
A. Communication of Sale Information to the Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly on the Sale Date
the following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate, the
Interest Payment Dates, the initial Interest Payment Date and
whether such Security is an Amortizing Security, and if so,
the Amortization Schedule;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) If denominated or payable in a currency other than U.S.
dollars, the relevant provisions relating thereto;
(7) If payments thereon are to be determined by reference to an
index, the relevant provisions relating thereto;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, provisions
relating to such redemption or repayment;
(12) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
11
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s) and address for payment of principal and
interest;
(14) Denomination of certificates to be delivered at settlement;
(15) Original Issue Discount provisions, if any;
(16) Selling Agent or Purchasing Agent;
[(17) Whether the Book-Entry Security is a Renewable Security, and
if it is a Renewable Security, the Initial Maturity Date and
the Final Maturity Date;]
[(18) Whether the Company has the option to extend the Original
Maturity Date of the Book-Entry Security, and, if so, the
Final Maturity Date of such Book-Entry Security;]
[(19) Whether the Company has the option to reset the Interest Rate,
the Spread or the Spread Multiplier of the Book-Entry
Security; and]
(20) Any other applicable terms.
B. The Company will advise the Trustee by telephone or electronic
transmission (confirmed in writing at any time on the same date) of the
information set forth in Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a pre-printed
four-ply packet for such Certificated Security, which packet will contain the
following documents in forms that have been approved by the Company, the
relevant Agent and the Trustee:
(1) Security with customer confirmation;
(2) Stub One - For the Trustee;
(3) Stub Two - For the relevant Agent; and
12
(4) Stub Three - For the Company.
D. The Trustee will complete such Certificated Security and
authenticate such Certificated Security and deliver it (with the confirmation)
and Stubs One and Two to the relevant Agent, and such Agent will acknowledge
receipt of the Certificated Security by stamping or otherwise marking Stub One
and returning it to the Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions have been given by such
Agent for payment to the account of the Company at __________________
__________________, or to such other account as the Company shall have specified
to such Agent and the Trustee, in immediately available funds, of an amount
equal to the price of such Certificated Security less such Agent's commission.
In the event that the instructions given by such Agent for payment to the
account of the Company are revoked, the Company will as promptly as possible
wire transfer to the account of such Agent an amount of immediately available
funds equal to the amount of such payment made and such Agent will as promptly
as possible return the Certificated Security and all Stubs to the Company.
E. Unless the relevant Agent is the end purchaser of such Certificated
Security, such Agent will deliver such Certificated Security (with confirmation)
to the customer against payment in immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Certificated Security by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by first-class mail.
At any time upon request from an Agent, the Trustee will also send to the
Company a statement setting forth the principal amount of the Certificated
Securities outstanding as of that date under the Indenture and setting forth a
brief description of any sales of which the Company has advised the Trustee that
have not yet been settled.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, such number of such Pricing Supplement as the Agent may
reasonably request, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to file a copy of the
Pricing Supplement with the Commission not later than the close of business of
the Commission on the second Business Day following the date on which such
Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will provide a copy of such Pricing Supplement to each investor or
purchaser of the relevant Certificated Security or its agent. Pursuant to Rule
434 under the Securities Act, the Pricing Supplement may be delivered separately
from the Prospectus. Outdated Pricing Supplements (other than those retained for
files) will be destroyed.
13
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
The receipt by the Company of immediately available funds in exchange
for an authenticated Certificated Security delivered to the relevant Agent and,
if applicable, such Agent's delivery of such Certificated Security against
receipt of immediately available funds, shall constitute "settlement" with
respect to such Security. All offers of Certificated Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company will be
settled on a date (the "Settlement Date") which is the third Business Day after
the date of acceptance of such offer, unless the Company and the purchaser agree
to settlement (a) on another Business Day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
For sales by the Company of Certificated Securities to a Purchasing
Agent or through a Selling Agent (unless otherwise specified pursuant to a Terms
Agreement), Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times in New York City set forth below:
Settlement Procedure Time
-------------------- ----
A 2:00 p.m. on the Business Day
before Settlement Date
B 3:00 p.m. on the Business Day
before Settlement Date
C-D 12:00 noon on Settlement Date
E 12:00 noon on Settlement Date
F 5:00 p.m. on Settlement Date
If the Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities, Settlement Procedure "B" will be given by the
Company by 11:00 a.m., New York City time.
The Company shall not use any proceeds advanced by a Selling Agent to
acquire securities prior to the Selling Agent receiving the Certificated
Securities from the Company.
14
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. 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 such Selling Agent in
the performance of its obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period when they were credited
to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
15
