EXHIBIT 1(b)
PITNEY XXXXX CREDIT CORPORATION
$500,000,000
Medium-Term Notes, Series C
Distribution Agreement
----------------------
November __, 1995
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
CS First Boston Corporation,
00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated,
World Financial Center, Xxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Chase Securities, Inc.,
Xxx Xxxxx Xxxxxxxxx Xxxxx,
00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Citicorp Securities, Inc.,
000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxx 0,
Xxx Xxxx, Xxx Xxxx 00000.
First Chicago Capital Markets, Inc.,
One First Xxxxxxxx Xxxxx,
Xxxx Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000.
NationsBanc Capital Markets, Inc.,
NationsBank Corporate Center, 7th Floor,
000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
Ladies and Gentlemen:
Pitney Xxxxx Credit Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from
time to time its Medium-Term Notes, Series C (the "Securities") in an aggregate
principal amount up to $500,000,000 and agrees with each of you (individually,
an "Agent" and collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf or through other agents, dealers or underwriters as set forth in Section
2(a), the Company hereby (i) appoints each Agent as an agent of the Company for
the purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each, a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. The Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of any of the Agents to
purchase Securities as principal.
The Securities will be issued under an indenture, dated as of
November 1, 1995 (the "Indenture"), between the Company and Chemical Bank, as
Trustee (the "Trustee"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two Registration Statements on Form S-3 (File Nos. 33-53736 and
33-62485) in respect of $750,000,000 aggregate principal amount of debt
securities of the Company, including the Securities, has been filed with the
Securities and Exchange Commission (the "Commission") in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to such
registration statements but including all documents incorporated by reference in
the prospectus included in the latest registration statement, have been declared
effective by the Commission in such form; no other document with respect to such
registration statements or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the
-2-
Commission (other than the prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Agents); and no stop order suspending the
effectiveness of any such registration statements has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in such registration statements or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, are hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statements, including all exhibits thereto
and the documents incorporated by reference in the prospectus contained in the
registration statements at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such part
of the Registration Statements became effective, is hereinafter collectively
called the "Registration Statement"; the prospectus (including, if applicable,
any prospectus supplement) relating to the Securities, in the form in which it
has most recently been filed or transmitted for filing with the Commission on or
prior to the date of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Securities Act of 1933, as amended (the "Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus, including any supplement to the Prospectus that sets forth only
the terms of a particular issue of the Securities (a "Pricing Supplement"),
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the Prospectus
as amended or supplemented (including by the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in relation to Securities to be sold
pursuant to this Agreement, in the form to be filed or transmitted for filing
with the Commission pursuant to Rule 424(b) under the Act and in accordance with
Section 4(a)
-3-
hereof, including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
-------- -------
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance of
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
-------- -------
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited
-4-
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable and all of such shares are owned directly or indirectly by Pitney
Xxxxx Inc., a Delaware corporation ("Pitney Xxxxx"), free and clear of all
liens, encumbrances, security interests or claims;
(g) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of Securities;
-5-
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Pitney Xxxxx, the Company or any of its material
subsidiaries is a party or by which Pitney Xxxxx, the Company or any of its
material subsidiaries is bound or to which any of the property or assets of
Pitney Xxxxx, the Company or any of its material subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-Laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its material subsidiaries or any of
their properties; and no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is required
for the solicitation of offers to purchase Securities and the issue and sale of
the Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Terms Agreement or the Indenture, except
such as have been, or will have been prior to the Commencement Date (as defined
in Section 3 hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the Company and
with purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(i) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation or By-Laws or in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as they
purport to constitute a summary of the terms of the Securities, under the
captions "United States Taxation", "Supplemental Plan of Distribution" and "Plan
of Distribution", insofar as they
-6-
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which, if determined adversely to the Company or
any of its subsidiaries would individually or in the aggregate have a material
adverse effect on the current consolidated financial position, stockholders'
equity, results of operations or prospects of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(l) The Company is not, and after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities which shall
have been issued and sold by the Company hereunder or under any Terms Agreement
and of any debt securities of the Company (other than such Securities) that
shall have been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement; and
(o) Price Waterhouse LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to purchase the Securities
from the Company upon the terms
-7-
and conditions set forth in the Prospectus as amended or supplemented from time
to time. The Company reserves the right to sell, and may solicit and accept
offers to purchase, (i) Securities through any agents, dealers or underwriters
other than the Agents so long as any such sale, solicitation or purchase is on
terms substantially identical to the terms and conditions as provided herein for
the Agents, (ii) Securities directly on its own behalf, and (iii) debt
securities through private placements and, in the case of any such sale not
resulting from a solicitation made by any agent, no commission will be payable
with respect to such sale. Notwithstanding the foregoing, except as it may be
subject to the terms and conditions hereof and of any Terms Agreement, the
Company may sell debt securities with a maturity at the time of original
issuance of nine months or more in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term notes. These provisions shall not limit
Section 4(f) hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in
-8-
an amount equal to the following applicable percentage of the principal amount
of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------------------------- -------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent; a Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth; each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such
Securities; and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related thereto at the
time of sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company. For each
sale of Securities to an Agent as principal that is not made pursuant to a Terms
Agreement, the procedural details relating to the issue and delivery of such
Securities and
-9-
payment therefor shall be as set forth in the Administrative Procedure. For
each such sale of Securities to an Agent as principal that is not made pursuant
to a Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein. Each time and date of delivery
of and payment for Securities to be purchased by an Agent as principal, whether
set forth in a Terms Agreement or in accordance with the Administrative
Procedure, is referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities is commenced or on which any
Terms Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof or (B) after
the date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which shall be
disapproved by any Agent party to such Terms Agreement or so purchasing as
principal promptly after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a form
previously approved by such Agent and to file such Pricing Supplement pursuant
to Rule 424(b)(3) under the Act not later than the close of business of the
Commission on the fifth business day after
-10-
the date on which such Pricing Supplement is first used; (iii) to make no
amendment or supplement to the Registration Statement or Prospectus, other than
any Pricing Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon; (iv) to file within the
periods prescribed by the applicable rules and regulations under the Exchange
Act all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or has become effective or any supplement to the Prospectus or any
amended Prospectus (other than any Pricing Supplement that relates to Securities
not purchased through or by such Agent) has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; and (v)
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company shall
-------- -------
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time amended
or supplemented, other than any Pricing Supplement (except as provided in the
Administrative Procedure), in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act, and with copies of the documents
-11-
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as principal) and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if, in the opinion
of the Company, for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify such Agent and
request such Agent, in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Securities from the Company (and, if so
notified, such Agent shall cease such solicitations as soon as practicable, but
in any event not later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such statement
or omission or effect such compliance; provided, however, that if during such
-------- -------
same period such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver a
prospectus in respect of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an amendment or supplement;
(d) As soon as practicable after the date of each acceptance by the
Company of an offer to purchase Securities hereunder, but in any event not later
than the Applicable Availability Date (as defined below), the Company will make
generally available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Applicable Effective Date (as
defined below) which will satisfy the provisions of Section 11(a) of the Act and
the rules and regulations of the Commission thereunder. For the purpose of the
preceding sentence only, "Applicable Effective Date" means the latest of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-
-12-
effective amendment to such registration statement to become effective prior to
the date of such acceptance and (iii) the date of filing of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the date of
such acceptance, and "Applicable Availability Date" means (A) the 45th day after
the end of the fourth fiscal quarter following the fiscal quarter that includes
the Applicable Effective Date or (B) if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, the 90th day after the end of such fourth
fiscal quarter;
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as such Agent may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and continuing
to and including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company by such
Agent and (ii) the related Time of Delivery, the Company will not, without the
prior written consent of such Agent, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which mature more than nine months
after such Time of Delivery and which are substantially similar to the
Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the Company
of a Terms Agreement with such Agent, shall be deemed to be an affirmation to
such Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery
-13-
relating to such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That reasonably in advance of each time the Registration Statement
or the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion or opinions by Xxxxxxxx &
Xxxxxxxx, counsel to the Agents, as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish to such counsel such
papers and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That (i) each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement) and each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and (ii) each time the Company sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of opinions under this Section 4(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent written opinions of the
General Counsel of the Company and other counsel for the Company satisfactory to
such Agent, dated the date of such amendment, supplement, incorporation or Time
of Delivery relating to such sale, as the case may be, in the forms satisfactory
to such Agent, to the effect that such Agent may rely on the opinions of such
counsel referred to in Sections 6(c) and 6(d) hereof which were last furnished
to such Agent to the same extent as though they were dated the date of such
letters authorizing reliance (except that the statements in such last opinions
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such opinions, opinions of
the same tenor as the opinions of such counsel referred to in Sections 6(c) and
6(d) hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; provided, however, that the
failure to furnish such written opinions pursuant to clause (i) above shall not
constitute a breach of this Agreement so long as such written opinions are or
have been delivered at or prior to the first time of delivery relating to any
sale of Securities by the Company to any Agent as principal or agent pursuant to
this Agreement after the date of such amendment, supplement or incorporation;
(j) That (i) each time the Registration Statement or the Prospectus
shall be amended or supplemented and each
-14-
time that a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, in either case to set forth financial information
included in or derived from the Company's consolidated financial statements or
accounting records, and (ii) each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall cause
the independent public accountants who have certified the financial statements
of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated the date
of such amendment, supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(f) hereof but modified to relate to
the Registration Statement and the Prospectus as amended or supplemented to the
date of such letter, with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company, to the extent such financial statements and other
information are available as of a date not more than five business days prior to
the date of such letter; provided, however, that the failure to furnish such
-------- -------
letter pursuant to clause (i) above shall not constitute a breach of this
Agreement so long as such letter is or has been delivered at or prior to the
first time of delivery relating to any sale of Securities by the Company to any
Agent as principal or agent pursuant to this Agreement after the date of such
amendment, supplement or incorporation; and provided, further, that if the
-------- -------
additional financial information provided by such amendment, supplement or
document incorporated by reference includes only unaudited quarterly financial
information, the scope of such letter may be limited to relate to such unaudited
financial information unless any other accounting or financial information
included or incorporated by reference therein is of a character that, in the
reasonable judgment of such Agent, such letter should address such other
information;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus, and each time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such sale,
as the case may be, in such form and executed by such officers of the Company as
shall be satisfactory to such Agent, to the effect that the statements contained
in the certificates referred to in Section 6(j) hereof which
-15-
were last furnished to such Agent are true and correct at such date as though
made at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(j) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities from
the Company as the result of an offer to purchase solicited by such Agent the
right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any condition
set forth in Section 6(a), 6(g) or 6(h) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments of
an Agent with respect to certain matters referred to in such Sections 6(a), 6(g)
and 6(h), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(a), 6(g) or 6(h) on behalf
of any such person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees and expenses of the
Company's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the reasonable fees and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby and the
transactions contemplated hereunder; (iii) the reasonable out-of-pocket expenses
of such Agent; (iv) the cost of printing, preparing by word processor or
reproducing this Agreement, any Terms Agreement, any Indenture, any Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (v) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 4(b) hereof, including fees and
disbursements of counsel for the Agents in connection with such qualification
and in connection with the Blue Sky and
-16-
legal investment surveys; (vi) any fees charged by securities rating services
for rating the Securities; (vii) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (viii) the cost of preparing the Securities; (ix) the fees
and expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Company and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indenture and the Securities; (x)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Company; and (xi) all other costs and expenses incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in Sections 7 and
8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of any part of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii) all
requests for additional information on the part of the
-17-
Commission shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Xxxxxxxx & Xxxxxxxx, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company, the validity of the Indenture, the
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent may reasonably request, and
(ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may rely on
the opinion or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in lieu of
such an opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) The General Counsel of the Company shall have furnished to such
Agent his written opinion, dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, in form and substance satisfactory to
such Agent to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and all such shares are owned
directly or indirectly by
-00-
Xxxxxx Xxxxx, free and clear of all liens, encumbrances, security interests
or claims;
(iii) To the best of such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its subsidiaries is
subject, which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current consolidated financial position,
stockholders' equity, results of operations or prospects of the Company and
its subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(iv) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(v) The establishment of the Series constituting the Securities has
been duly authorized, and, when the terms of a particular Security have
been duly established in conformity with the Indenture, the issue and sale
of such Security have been duly authorized by all necessary corporate
action in conformity with the Indenture and so as not to violate any
applicable law or agreement or instrument then binding on the Company and
such Security has been duly prepared, executed, authenticated and issued in
accordance with the Indenture, and delivered against payment therefor as
contemplated by the Distribution Agreement, such Security will constitute a
valid and legally binding obligation of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Securities will conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the parties thereto and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency,
-19-
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any applicable Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company or Pitney Xxxxx is a party or by which the Company or Pitney
Xxxxx is bound or to which any of the property or assets of the Company or
Pitney Xxxxx is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation, as amended, of the
Company or the By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the issue
and sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable Terms
Agreement, or the Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the solicitation by
the Agents of offers to purchase Securities from the Company and with
purchases of Securities by an Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(ix) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation, as amended, or By-Laws or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is
-20-
a party or by which it or any of its properties may be bound;
(x) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and
under the captions "Supplemental Plan of Distribution" and "Plan of
Distribution", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(xi) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(xiii) (a) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made by
the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
-21-
rules and regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (x) of this Section 6(c), such
counsel has no reason to believe that, as of its effective date the
Registration Statement or any further amendment or supplement thereto made
by the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), the Prospectus, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of the date of such opinion, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the date of such opinion
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (b) such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Counsel for the Company satisfactory to such Agent shall have
furnished to such Agent their written opinion, dated the Commencement Date and
each applicable date referred to in Section 4(i) (other than each time a
document filed under the Act or Exchange Act is incorporated by reference) that
is on or prior to such Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent to the same effect as
subparagraphs (iv), (v), (vi) and (xiii)(a) of Section 6(c) hereof;
(e) Counsel for the Company satisfactory to such Agent shall have
furnished to such Agent their written opinion, dated the Commencement Date
-22-
may be, in form and substance satisfactory to such Agent to the effect that the
statements made in the Prospectus under the caption "United States Taxation", to
the extent they constitute matters of law or legal conclusions, have been
reviewed by such counsel and are accurate, correct and fairly present the
information set forth therein;
(f) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
such Agent a letter, dated the Commencement Date or such applicable date, as the
case may be, in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries, or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it impracticable or inadvisable to
proceed with the solicitation by such Agent of offers to purchase Securities
from the Company or the purchase by such Agent of Securities
-23-
from the Company as principal, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery;
(h) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation of offers
to purchase Securities or the purchase by such Agent of Securities from the
Company as principal, pursuant to the applicable Terms Agreement or otherwise,
as the case may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented; or (iv) (x) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act or (y) any such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) With respect to any Security denominated in a currency other than
the U.S. dollar, more than one currency or a composite currency or any Security
the principal or interest of which is indexed to such currency, currencies or
composite currency, there shall not have occurred a suspension or material
limitation in foreign exchange trading in such currency, currencies or composite
currency by a major international bank, a general moratorium on commercial
banking activities in the country or countries issuing such currency, currencies
or composite currency, the outbreak or escalation of hostilities involving, the
financial, political or economic conditions of, or the declaration of war or a
national emergency by, the country or countries issuing such currency,
currencies or composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries issuing such
currency, currencies or composite currency; and
(j) The Company shall have furnished or caused to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date and
each applicable date
-24-
referred to in Section 4(k) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, as to the
accuracy of the representations and warranties of the Company herein at and as
of the Commencement Date or such applicable date, as the case may be, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to the Commencement Date or such applicable date, as the case may
be, as to the matters set forth in subsections (a) and (g) of this Section 6,
and as to such other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented, or any
other prospectus relating to the Securities or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim; provided, however, that the
-------- -------
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use
therein.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any
-25-
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an
-26-
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
-27-
above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), each Agent shall not be
required to contribute any amount in excess of the amount by which the total
public offering price at which the Securities purchased by or through such Agent
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to contribute are
several in proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof) relates and
are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that
-28-
solicited such offer any commission to which it would be entitled in connection
with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) the Company shall not have any liability to such Agent and
such Agent shall not have any liability to the Company, except as provided in
any Terms Agreements and in the fourth paragraph of Section 2(a), Section 4(d),
Section 4(e), Section 5, Section 7, Section 8 and Section 9 and except that (i)
so long as such Agent owns Securities with a view to reselling such Securities,
the Company shall continue to have the obligations provided in subsections (a),
(b), (c) and (e) of Section 4 and (ii), until the later of the date of the last
settlement of a purchase of Securities resulting from a solicitation made by
such Agent prior to such suspension or termination and the last Time of Delivery
with respect to any Terms Agreement to which such Agent is a party, the Company
and such Agent shall continue to have the respective obligations provided in the
Administrative Procedure and the Company shall continue to have the obligations
provided in subsections (a), (b), (c) and (e) through (l) of Section 4.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Xxxxxxx, Xxxxx & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Credit Department, Credit Control--Medium-Term Notes, if to
-29-
CS First Boston Corporation to 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10055-
0186, Facsimile Transmission No. (000) 000-0000, Attention: Xxxxx Xxxxxx and
Facsimile Transmission No. (000) 000-0000, Attention: Xxxxxx Xxxxxxxx, if to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated to World Financial Center,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Facsimile Transmission No. (212)
449-2234, Attention: Xxxxx Xxxxxxxx and Facsimile Transmission No. (212) 449-
0162, Attention: Xxxxxx Xxxxxx, if to Chase Securities, Inc. to One Chase
Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission
No. (000) 000-0000, Attention: Medium Term Note Desk, if to Citicorp
Securities, Inc. to 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxx 3, New York, New York
10043, Facsimile Transmission No. (212) 291- 3190, Attention: MTN Desk Head, if
to First Chicago Capital Markets, Inc. to One First Xxxxxxxx Xxxxx, Xxxx Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000-0000, Facsimile Transmission No. (000) 000-0000,
Attention: Investment Grade Securities and Facsimile Transmission No. (312) 373-
1391, Attention: Head, IGS Transaction Group, or if to NationsBanc Capital
Markets, Inc. to NationsBank Corporate Center, 7th Floor, 000 Xxxxx Xxxxx
Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Facsimile Transmission
No. (000) 000-0000, Attention: Xxxx XxXxxxxxx and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000, Facsimile
Transmission No. (000) 000-0000, Attention: Treasurer.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
office of the Commission in Washington, D.C. is normally open for business.
14. This Agreement and any Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
-30-
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
PITNEY XXXXX CREDIT
CORPORATION
By:______________________________
Title: Vice President -
Finance
By:______________________________
Title: Treasurer
Accepted in New York, New York,
as of the date hereof:
_________________________________
(Xxxxxxx, Xxxxx & Co.)
CS First Boston Corporation
By:
---------------------------
Name:
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
---------------------------
Name:
Title:
Chase Securities, Inc.
By:
---------------------------
Name:
Title:
Citicorp Securities, Inc.
By:
--------------------------
Name:
Title:
First Chicago Capital Markets, Inc.
By:
--------------------------
Name:
Title:
NationsBanc Capital Markets, Inc.
By:
--------------------------
Name:
Title:
-31-
ANNEX I
-------
PITNEY XXXXX CREDIT CORPORATION
[Title of Security]
[$,000,000]
Medium-Term Notes, Series C
TERMS AGREEMENT
---------------
__, 19__
[Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.]
[CS First Boston Corporation,
00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.]
[Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated,
World Financial Center, Xxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.]
[Chase Securities, Inc.,
Xxx Xxxxx Xxxxxxxxx Xxxxx,
00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.]
[Citicorp Securities, Inc.,
000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxx 0,
Xxx Xxxx, Xxx Xxxx 10043.]
[First Chicago Capital Markets, Inc.,
One First Xxxxxxxx Xxxxx,
Xxxx Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000.]
[NationsBanc Capital Markets, Inc.,
NationsBank Corporate Center, 7th Floor,
000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 28255.]
Dear Sirs:
Pitney Xxxxx Credit Corporation (the "Company") proposes, subject to
the terms and conditions stated herein
and in the Distribution Agreement, dated October __, 1995 (the "Distribution
Agreement"), between the Company on the one hand and Xxxxxxx, Xxxxx & Co., CS
First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Chase Securities, Inc., Citicorp Securities, Inc., First Chicago Capital
Markets, Inc. and NationsBanc Capital Markets, Inc. (the "Agents") on the other,
to issue and sell to [Xxxxxxx, Xxxxx & Co.,] [CS First Boston Corporation,]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,] [Chase Securities, Inc.,]
[Citicorp Securities, Inc.,] [First Chicago Capital Markets, Inc.] [NationsBanc
Capital Markets, Inc.] the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agent of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Xxxxxxx, Xxxxx & Co.,] [CS First Boston Corporation,]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,] [Chase Securities, Inc.,]
[Citicorp Securities, Inc.,] [First Chicago Capital Markets, Inc.,] [NationsBanc
Capital Markets, Inc.,] and [Xxxxxxx, Xxxxx & Co.,] [CS First Boston
I-2
Corporation,] [Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,] [Chase
Securities, Inc.,] [Citicorp Securities, Inc.,] [First Chicago Capital Markets,
Inc.,] [NationsBanc Capital Markets, Inc.,] agree[s] to purchase from the
Company the Purchased Securities, at the time and place, in the principal amount
and at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
PITNEY XXXXX CREDIT
CORPORATION
By:____________________________
Authorized Officer
Accepted:
[_______________________________
(Xxxxxxx, Sachs & Co.)]
[CS First Boston Corporation]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated]
[Chase Securities, Inc.]
[Citicorp Securities, Inc.]
[First Chicago Capital Markets, Inc.]
[NationsBanc Capital Markets, Inc.]
By:____________________________
Name:
Title:
I-3
Schedule to Annex I
Title of Purchased Securities:
[ % Notes due ] Medium-Term Notes, Series C
Aggregate Principal Amount:
$ or units of other Specified Currency
[Price to Public:]
Purchase Price by [Xxxxxxx, Xxxxx & Co.,] [CS First Boston Corporation,]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,] [Chase Securities,
Inc.,] [Citicorp Securities, Inc.,] [First Chicago Capital Markets, Inc.,]
[NationsBanc Capital Markets, Inc.]
% of the principal amount of the Purchased Securities, [plus accrued
interest from to ] [and accrued amortization from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of November 1, 1995, between the Company and Chemical
Bank, as Trustee
Time of Delivery:
Closing Location:
Maturity:
I-4
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinions of counsel to the Company referred to in Section
4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-5
ANNEX II
--------
PITNEY XXXXX CREDIT CORPORATION
Administrative Procedure
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated November __, 1995 (the "Distribution Agreement"),
between Pitney Xxxxx Credit Corporation (the "Company") and Xxxxxxx, Xxxxx &
Co., CS First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Chase Securities, Inc., Citicorp Securities, Inc., First Chicago
Capital Markets, Inc. and NationsBanc Capital Markets, Inc. (together, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement, as
the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, 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 the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of December 2, 1988 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
----------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
-----------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase 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 Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If
II-2
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 Agent and Settlement
------------------------------------------------------------------------
Procedures:
----------
A. After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale Information")
to the Company by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of Global
Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(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 Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
II-3
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption Commencement
Date;
(12) 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;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
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
II-4
Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for the
Depositary's purposes (or, in the case of Floating Rate Securities which
reset daily or weekly, the date five calendar days immediately preceding
the applicable Interest Payment Date and, in the case of all other Book-
Entry Securities, the Regular Record Date, as defined in the Security) and,
if calculable at that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i) debit
such Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the
II-5
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 the Depositary that (a) the Global Security representing such Book-
Entry Security has been issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to debit
such Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at Mellon Bank, New York,
New York, 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 "F".
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the Participants with
respect to such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written confirmation
to such purchaser.
L. The Depositary will, at any time, upon request of the Company
or the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the participants for whom the Depositary has credited
Book-Entry Securities.
II-6
Preparation of Pricing Supplement:
---------------------------------
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 12:00 noon, New York City time, on the Business Day following the Trade
Date (as defined below). The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than the close of business of
the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
---------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
------------------
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 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 Business Day which shall be no
earlier than the next Business Day after the Trade Date.
II-7
Settlement Procedure Timetable:
------------------------------
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
SETTLEMENT
PROCEDURE TIME
---------- ----
A 5:00 p.m. on the Business Day following the Trade
Date or 10:00 a.m. on the Business Day
prior to the Settlement Date, whichever
is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security
has not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's 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.
II-8
Failure to Settle:
-----------------
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
xxxx such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid
to the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the
II-9
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.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D", for the authentication and issuance of
a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
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.
II-10
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
-----------------------------------------------------
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(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 Certificated Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
II-11
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption Commencement
Date;
(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,
(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);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
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, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the Trade
Date, or if
II-12
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 have ten Pricing Supplements filed with the Commission not later
than the close of business of the Commission on the fifth Business Day following
the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
---------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
------------------
All offers 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.
Instruction from Company to Trustee for Preparation of Certificated Securities:
------------------------------------------------------------------------------
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case
II-13
such instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
-----------------------------------------------------------------------------
Payment Therefor:
----------------
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities to the Selling
Agent for the benefit of the purchaser of such Certificated Securities against
delivery by the Selling Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue price
of the Certificated Securities less the Selling Agent's commission; provided
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing
Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement
Date, deliver the Certificated Securities to the Purchasing Agent against
delivery of payment for such Certificated Securities in immediately available
funds to the Company in an amount equal to the issue price of the Certificated
Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
-----------------------------------------
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Certificated Security, the Selling Agent will
promptly notify the Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
II-14
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
II-15
ANNEX III
ACCOUNTANTS' LETTER
-------------------
Pursuant to Sections 4(j) and 6(f), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the Agents and are
attached hereto;
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the
foregoing procedures that caused them to believe that this information does
not conform in all material respects with the disclosure requirements of
Item 503(d) of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income and consolidated statements of retained earnings, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income and consolidated statements of retained earnings,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding
III-2
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock or any increase in the consolidated short-term or long-
term debt of the Company and its subsidiaries, or any decreases in
consolidated net finance assets or total assets or other items
specified by the Agents, or any increases in any items specified by
the Agents (in each case, if such information is available), in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(E) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (D) there were any decreases
in consolidated finance income or consolidated income before taxes or
of consolidated net income or other items specified
III-3
by the Agents, or any increases in any items specified by the Agents
(in each case, if such information is available), in each case as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Agents, except
in each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vi) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (v) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Agents which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Agents or in documents
incorporated by reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(f) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-4
