EXHIBIT 1
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
$500,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
October 30, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company of its Medium-Term Notes due from nine months
or more from date of issue (the "Notes") at an aggregate initial offering
price of up to $500,000,000 (or the equivalent thereof in one or more foreign
currencies or currency units), which amount may be subject to reduction as a
result of the sale of other debt securities, preferred stock or common stock
issued by the Company after the date hereof, whether within or without the
United States ("Other Securities") pursuant to the registration statement
referred to below, and agrees with you (the "Agent", and together with any
additional agents appointed from time to time pursuant to Section 13, the
"Agents") as set forth in this Agreement. The Notes will be issued under an
indenture dated as of June 8, 1998 (the "Indenture") between the Company and
The Chase Manhattan Bank, as Trustee (the "Trustee"). The Notes shall have the
maturities, interest rates, redemption provisions, if any, and other terms set
forth in the Prospectus referred to below as it may be amended or supplemented
from time to time. The Notes will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions stated herein, including
the right of the Company to appoint additional Agents from time to time
pursuant to Section 13 of this Agreement, and to the reservation by the
Company of the right (A) to sell Notes directly to investors (other than
broker-dealers) in those jurisdictions in which the Company is so permitted
and (B) to accept (but not solicit) offers to purchase Notes from time to time
through one or more purchasers on substantially the terms set forth in Exhibit
C hereto, provided that the Company shall provide the Agents with written
notice of each such acceptance within two business days thereof, the Company
hereby (i) appoints the Agents as the exclusive agents of the Company for the
purpose of soliciting and receiving offers to purchase Notes from the Company
by others pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Notes directly
to any Agent as principal, it will enter into a separate agreement (each such
agreement a "Terms Agreement"), substantially in the form of Exhibit A hereto,
relating to such sale in accordance with Section 2(b) hereof. In connection
with the Company's reservation pursuant to clause (B) above, it is understood
that the Company may respond to inquiries and requests for information from
any such agents or dealers.
The Company has prepared and filed a registration statement on
Form S-3 (No. 333-53499) in respect of the Notes with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined) is hereinafter referred to as the
"Registration Statement" and the prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus supplement
or supplements (each a "Prospectus Supplement") specifically relating to the
Notes in the form filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act which were filed under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be; and any reference to "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Notes (a "Pricing Supplement"), shall be deemed to refer to and
include any documents filed under the Exchange Act after the date of this
Agreement, or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
1. Representations. The Company represents and warrants to, and
agrees with, each Agent as of the Commencement Date, as of each date on which
the Company accepts an offer to purchase Notes (including any purchase by an
Agent as principal pursuant to a Terms Agreement), as of each date the Company
issues and sells Notes and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being understood
that such representations and warranties shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has been declared
effective by the Commission under the Securities Act; no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement
and Prospectus comply and, as amended or supplemented, if
applicable, will comply, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act"); each
part of the Registration Statement filed with the Commission
pursuant to the Securities Act, when such part became
effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain, any 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; and the Prospectus did
not, as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and the Prospectus, as amended or
supplemented at such date, if applicable, will not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; except that the foregoing representations
and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information
relating to any Agent furnished to the Company in writing by
such Agent expressly for use therein.
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act, and none of such documents, when they were
filed with the Commission, contained an untrue statement of a
material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed
with the Commission will conform in all material respects to
the requirements of the Exchange Act, as applicable, and
will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
there has not been any material adverse change, or any
development known by the Company (after diligent inquiry)
involving a prospective material adverse change, in or
affecting the business, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus;
and except as set forth, incorporated by reference or
contemplated in the Prospectus neither the Company nor any
of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken
as a whole.
(d) The Company and each of its "significant
subsidiaries" as such term is defined in Rule 1-02 of
Regulation S-X under the Securities Act (collectively, the
"Subsidiaries") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
its respective jurisdiction of incorporation and has the
corporate power and authority to carry on business as it is
currently being conducted and to own, lease and operate its
properties, all as described in the Prospectus, and each is
duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of,
or other ownership interests in, each of the Subsidiaries
have been duly authorized and validly issued and are fully
paid and non-assessable, and are owned by the Company, free
and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature.
(f) The Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
purchasers thereof in accordance with this Agreement and any
applicable Terms Agreement, will be entitled to the benefits
of the Indenture, and will be valid and binding obligations
of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) This Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by
applicable law).
(h) The Indenture has been duly qualified under the
Trust Indenture Act, and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The Notes will conform to the description thereof
contained in the Prospectus as amended or supplemented, if
applicable, in connection with the issuance of Notes.
(j) Neither the Company nor any of its Subsidiaries is
in violation of its respective certificate of incorporation
or bylaws or in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the
conduct of the business of the Company and its Subsidiaries,
taken as a whole, to which the Company or any of its
Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, and compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require
any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
Securities Act or state securities or Blue Sky laws) and
will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the certificate
of incorporation or bylaws of the Company or any of its
Subsidiaries or any agreement, indenture or other instrument
to which it or any of its Subsidiaries is a party or by
which it or any of its Subsidiaries or their property is
bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the
Company any of its Subsidiaries or their respective
properties.
(l) Except as otherwise set forth or incorporated by
reference in the Prospectus, there are no material legal or
governmental proceedings pending to which the Company or any
of its Subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described, filed or
incorporated by reference as required.
(m) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
nor any federal or state law relating to discrimination in
the hiring, promotion or pay of employees nor any applicable
federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might
result in any material adverse change in the business,
prospects, financial condition or results of operation of
the Company and its Subsidiaries, taken as a whole.
(n) The Company and each of its Subsidiaries has such
permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has
fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company
and its Subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental
Laws on the business, operations and properties of the
Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities
and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly
or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(p) Except as otherwise set forth or incorporated by
reference in the Prospectus or such as are not material to
the business, prospects, financial condition or results of
operation of the Company and its Subsidiaries, taken as a
whole, the Company and each of its Subsidiaries has good and
marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the
Registration Statement as being owned by it. All leases to
which the Company or any of its Subsidiaries is a party are
valid and binding and no default has occurred or is
continuing thereunder, which might result in any material
adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole, and the Company and its
Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the
use made by the Company or such Subsidiary.
(q) The Company and each of its Subsidiaries maintains
reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the
Securities Act.
(s) The financial statements, together with related
schedules and notes forming part of or incorporated by
reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and
changes in financial position of the Company and its
subsidiaries on the basis stated or incorporated by
reference in the Registration Statement at the respective
dates or for the respective periods to which they apply;
such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
involved, except as disclosed therein; and the other
financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) is,
in all material respects, accurately presented and prepared
on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries.
(t) The Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended.
(u) Except as described in the Prospectus, no holder of
any security of the Company has any right to require
registration of shares of common stock or any other security
of the Company.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(w) The Company and each of its Subsidiaries maintains
a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity
with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is
permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with
respect to any differences.
(x) All material tax returns required to be filed by
the Company and each of its subsidiaries in any jurisdiction
have been filed, other than those filings being contested in
good faith, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of its
subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have
been provided.
2. Solicitations by Agents of Offers to Purchase; Purchases by
Agent as Principal. (a) On the basis of the representations and warranties
herein contained, but 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 offers to purchase the Notes
from the Company upon the terms and conditions set forth herein and in the
Prospectus as amended or supplemented from time to time.
So long as this Agreement shall remain in effect with respect
to any Agent, and subject to Section 13 of this Agreement and the reservations
set forth in clauses (A) and (B) of the second paragraph of this Agreement, the
Company shall not, without the consent of such Agent, solicit or accept offers
to purchase, or sell, Notes or any other debt securities with a maturity at the
time of original issuance of nine months or more except pursuant to this
Agreement and any Terms Agreement, or except pursuant to a private placement
not constituting a public offering under the Securities Act or except in
connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term debt
securities.
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 Notes. Upon receipt of at
least one business day's prior notice from the Company, each Agent will
suspend solicitation of offers to purchase Notes from the Company until such
time as the Company has advised such Agent or Agents that such solicitation
may be resumed. During the period of time that such solicitation is suspended,
the Company shall not be required to deliver any opinions, letters or
certificates in accordance with Sections 4(i), 4(j) and 4(k); provided that if
the Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered for the Notes or for a change that the Agents
deem to be immaterial), no Agent shall be required to resume soliciting offers
to purchase Notes until the Company has delivered such opinions, letters and
certificates as such Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note in an amount equal to the following applicable
percentage of the principal amount of such Note sold:
Commission
(percentage of
aggregate
principal amount
Maturities of Notes Sold of Notes 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......... .625%
From 10 years to less than 12 years........ .650%
From 12 years to less than 15 years........ .675%
From 15 years to less than 20 years........ .750%
From 20 years to and including 30 years.... .875%
The Agents are authorized to solicit offers to purchase Notes
only in the principal amount of $1,000 (or, if Notes are denominated in
currencies, currency units or composite currencies other than U.S. dollars,
such other minimum denomination specified in the applicable Pricing
Supplement) or any amount in excess thereof which is an integral multiple of
$1,000 (or, if Notes are denominated in currencies or currency units other
than U.S. dollars, integrals in excess of the minimum denomination specified
in the applicable Pricing Supplement). Each Agent shall communicate to the
Company, orally or in writing, each offer to purchase Notes received by such
Agent as agent that in its judgment should be considered by the Company. The
Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the
right, in its sole discretion, to reject any offer to purchase Notes, as a
whole or in part, that it reasonably considers to be unacceptable and any such
rejection shall not be deemed a breach of its agreements herein contained. The
procedural details relating to the issue and delivery of Notes sold by an
Agent as agent and the payment therefor are set forth in the Administrative
Procedures (as hereinafter defined).
(b) Each sale of Notes by the Company directly to any of you as
principal for resale to others shall be made in accordance with the terms of
this Agreement and (unless any such Agent shall otherwise agree) a Terms
Agreement which will provide for the sale and purchase of such Notes. For the
purposes of this Agreement, the terms "Agent" and "Agents" shall refer to you
acting solely in the capacity as agent for the Company hereunder and not as
principal, the term "Purchaser" shall refer to you acting solely as principal
hereunder and not as agent, and the term "you" shall refer to each of you
acting in both such capacities or in either such capacity. Each Terms
Agreement will take the form of either (i) a written agreement substantially in
the form of Exhibit A hereto or (ii) an exchange of any standard form of
written telecommunication between a Purchaser and the Company, and may also
specify certain provisions relating to the reoffering of such Notes by such
Purchaser. The commitment of any Purchaser to purchase Notes 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 and in the applicable Terms Agreement set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by such Purchaser
pursuant thereto, the price to be paid to the Company for such Notes, the
maturity date of such Notes, the interest rate or interest rate basis, if any,
applicable to such Notes, any other terms of such Notes, the time and date and
place of delivery of and payment for such Notes (the time and date of any and
each such delivery and payment, the "Time of Delivery"), any provisions
relating to rights of, and default by, underwriters acting together with such
Purchaser in the reoffering of Notes, and shall also specify any modification
of the requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. Unless otherwise
specified in a Terms Agreement, the procedural details relating to the issue
and delivery of Notes purchased by a Purchaser and the payment therefor shall
be as set forth in the Administrative Procedures.
(c) The Company acknowledges that the obligations of the Agents
are several and not joint and, subject to the provisions of this Section 2,
each Agent shall have complete discretion as to the manner in which it solicits
purchasers for the Notes and as to the identity thereof.
(d) The Agents and the Company agree to perform their respective
duties and obligations specifically provided to be performed in the
Medium-Term Notes Administrative Procedures (the "Administrative Procedures")
attached hereto as Exhibit B, as the same may be amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(e) The Company agrees to notify each Agent of sales by the
Company of Other Securities.
3. Commencement Date. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date shall be delivered to
the Agents at the offices of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Notes is commenced or the first date on
which the Company accepts an offer by any Agent to purchase Notes as principal
(such time and date being referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees
with each Agent:
(a)(i) To make no amendment or supplement to the
Registration Statement or the Prospectus prior to the
termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement which shall be disapproved
by any Agent after reasonable opportunity to comment
thereon, provided, however, that the foregoing shall not
apply to any of the Company's periodic filings with the
Commission described in subsection (iii) below, copies of
which filings the Company will cause to be delivered to the
Agents promptly after their transmission to the Commission
for filing; (ii) subject to the foregoing clause (i),
promptly to cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Notes to be sold through or to
such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by
such Agent and to file such Pricing Supplement in accordance
with Rule 424(b) under the Securities Act; and (iii)
promptly to file 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 Notes. The Company will promptly advise each
Agent (i) of the filing of any amendment or supplement to
the Basic Prospectus or any amendment to the Registration
Statement and of the effectiveness of any such amendment to
the Registration Statement, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or any order preventing or
suspending the use of any Prospectus relating to the Notes
or the initiation or threatening of any proceeding for that
purpose, or of any request by the Commission for any
amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (iii) of the
receipt by the Company of any notification with respect to
any suspension of the qualification of the Notes for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose. The
Company agrees to use its best efforts to prevent the
issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or
of any notification suspending any such qualification and,
if issued, to use promptly its best efforts to obtain
withdrawal thereof as soon as possible. If the Basic
Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated
by reference in the Prospectus, no Agent shall be obligated
to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
(b) To endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions
as the Agents shall reasonably request and to continue such
qualification in effect so long as reasonably required in
connection with the distribution of the Notes and to pay all
fees and expenses (including fees and disbursements of
counsel to the Agents) reasonably incurred in connection
with such qualification and in connection with the
determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as such Agent may
designate; provided that the Company shall not be required
to file a general consent to service of process in any
jurisdiction or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified.
(c) To furnish each Agent and counsel to the Agents, at
the expense of the Company, a signed copy of the Registration
Statement (as originally filed) and each amendment thereto,
in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in
paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements
thereto) and documents incorporated by reference therein as
such Agent may reasonably request.
(d) If at any time when a Prospectus relating to the
Notes is required to be delivered under the Securities Act,
any event shall occur 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 when such Prospectus is
delivered to a purchaser, not misleading, or, if in the
opinion of the Agents or the Company, it is necessary at any
time to amend or supplement the Prospectus to comply with
law, to immediately notify the Agents by telephone (with
confirmation in writing) and request each Agent (i) in its
capacity as agent of the Company, to suspend solicitation of
offers to purchase Notes from the Company; and (ii) to cease
sales of any Notes such Agent may then own as principal
(and, if so notified in either case, such Agent shall
immediately cease such solicitations or sales and cease
using the Prospectus as soon as practicable, but in any
event not later than one business day later). If the Company
shall decide to amend or supplement the Registration
Statement or the Prospectus, as then amended or
supplemented, it shall so advise each Agent promptly by
telephone (with confirmation in writing) and, at its
expense, shall 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 and will supply such
amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any such
amendment or supplement and any documents, opinions, letters
and certificates furnished to the Agents pursuant to
Sections 4(e), 4(i), 4(j) and 4(k) in connection with the
preparation and filing of such amendment or supplement are
satisfactory in all respects to the Agents, upon the filing
with the Commission of such amendment or supplement to the
Prospectus or upon the effectiveness of an amendment to the
Registration Statement, the Agents will resume the
solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 4(d),
until the distribution of any Notes any Agent may own as
principal has been completed or in the event such Agent, in
the opinion of its counsel, is otherwise required to deliver
a Prospectus in respect of a transaction in the Notes, if
any event described in this Section 4(d) occurs the Company
will, at its own expense, promptly prepare and file with the
Commission an amendment or supplement, satisfactory in all
respects to such Agent, that will correct such statement or
omission or effect such compliance, will supply such amended
or supplemented Prospectus to such Agent in such quantities
as such Agent may reasonably request and shall furnish to
such Agent pursuant to Sections 4(e), 4(i), 4(j) and 4(k)
such documents, certificates, opinions and letters as it may
request in connection with the preparation and filing of
such amendment or supplement.
(e) To furnish to the Agents during the term of this
Agreement such relevant documents and certificates of
officers of the Company relating to the business, operations
and affairs of the Company, the Registration Statement, the
Basic Prospectus, any amendments or supplements thereto, the
Indenture, the Notes, this Agreement, the Administrative
Procedures, any applicable Terms Agreement and the
performance by the Company of its obligations hereunder or
thereunder as the Agents may from time to time reasonably
request and shall notify the Agents promptly in writing of
any downgrading, or on its receipt of any notice of (i) any
intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement in the
rating accorded any of securities of, or guaranteed by, the
Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(f) To make generally available to its security holders
and to such Agent as soon as practicable earnings statements
which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated
thereunder covering periods of at least twelve months
beginning in each case with the first fiscal quarter of the
Company occurring after the "effective date" (as defined in
Rule 158) of the Registration Statement with respect to each
sale of Notes.
(g) So long as any Notes are outstanding, to furnish to
such Agent copies of all reports or other communications
(financial or other) furnished to holders of Notes and
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.
(h) That, from the date of any applicable Terms
Agreement with such Agent or other agreement by such Agent
to purchase Notes as principal and continuing to and
including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Notes,
without the prior written consent of such Agent.
(i) That each time that (i) the Registration Statement
or the Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for the
specification of or a change in the interest rates,
redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem to be
immaterial), the Company shall furnish or cause to be
furnished forthwith to the Agents the written opinions of
Xxxxxxx X. Xxxx, the General Counsel of the Company, or
other counsel for the Company satisfactory to such Agent,
each dated the date of such amendment or supplement, in form
satisfactory to the Agents, of the same tenor as the opinion
referred to in Section 6(b) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the date of such opinion; or, in lieu of
such opinion, counsel last furnishing such an opinion, may
furnish to the Agents a letter to the effect that such
Agents may rely on the opinion of such counsel which was
last furnished to such Agents to the same extent as though it
were dated the date of such letter (except that the
statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or
supplemented to date of delivery of such letter).
(j) That each time that the Registration Statement or
the Prospectus is amended or supplemented to set forth
amended or supplemental financial information or such
amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus,
the Company shall cause its independent public accountants,
forthwith to furnish each Agent a letter, dated the date of
the effectiveness of such amendment or the date of filing of
such supplement, in form satisfactory to such Agent, of the
same tenor as the letter referred to in Section 6(d) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated
by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such
letter, provided that if the Registration Statement or the
Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for
a fiscal quarter, such independent public accountants may
limit the scope of such letter, which shall be satisfactory
in form to each Agent, to the unaudited financial statements
and the related "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included in
such amendment or supplement, unless any other information
included or incorporated by reference therein of an
accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of any Agent, such
letter should cover such other information; provided further
that, if during the period from the date hereof to and
including March 31, 1999, no purchase of Notes by a
Purchaser pursuant to a Terms Agreement shall have taken
place, then the obligation of the Company's certified public
accountants to furnish such letters pursuant to this
paragraph (j) shall be suspended. Thereafter, upon the
purchase of any Notes by a Purchaser pursuant to a Terms
Agreement, the Company's certified public accountants shall
furnish such letter as would most recently have been issued
pursuant to this paragraph (j) if no suspension had
occurred, and such accountants' obligations under this
paragraph (i) shall resume.
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the
interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change
the Agents deem to be immaterial), the Company shall furnish
or cause to be furnished forthwith to the Agents a
certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement in form
satisfactory to the Agents, of the same tenor as the
certificates referred to in Section 6(e) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of delivery of such
certificate or to the effect that the statements contained
in the certificate referred to in Section 6(e) hereof which
was 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 or
supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with
each Agent that the Company will, whether or not any sale of Notes is
consummated, pay all costs and expenses incident to the performance of its
obligations hereunder and under any applicable Terms Agreement, including
without limiting the generality of the foregoing, all costs and expenses: (i)
incident to the preparation, issuance, execution, authentication and delivery
of the Notes, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Notes under the laws of such jurisdictions
as the Agents (or in connection with any Terms Agreement, the applicable
Agent) may designate (including fees of counsel for the Agents (or such Agent)
and their disbursements), (iv) in connection with the listing of the Notes on
any stock exchange, (v) related to any filing with National Association of
Securities Dealers, Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Indenture, any Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to the Agents and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein provided, (vii)
payable to rating agencies in connection with the rating of the Notes, (viii)
the fees and disbursements of counsel for the Agents incurred in connection
with the offering and sale of the Notes, including any opinions to be rendered
by such counsel hereunder and (ix) any advertising and out-of-pocket expenses
incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to purchase the
Notes, the obligation of any Purchaser to purchase Notes pursuant to any Terms
Agreement, and the obligation of any other purchaser to purchase Notes shall
in each case be subject (1) to the condition that all representations and
warranties of the Company herein and all statements of officers of the Company
made in any certificate furnished pursuant to the provisions hereof are true
and correct (i) in the case of an Agent's obligation to solicit offers to
purchase Notes, at and as of such Solicitation Time and (ii) in the case of any
Purchaser's or any other purchaser's obligation to purchase Notes, at and as of
the time the Company accepts the offer to purchase such Notes and, as the case
may be, at and as of the related Time of Delivery or time of purchase; (2) to
the condition that at or prior to such Solicitation Time, time of acceptance,
Time of Delivery or time of purchase, as the case may be, the Company shall
have complied with all its agreements and all conditions on its part to be
performed or satisfied hereunder; and (3) to the following additional
conditions when and as specified (it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
discretionary judgment on behalf of the Company or any purchaser in respect
of the fulfillment of any such condition):
(a) Prior to such Solicitation Time or corresponding
Time of Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented
(including, if applicable, the Pricing
Supplement) with respect to such Notes shall
have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act within the
applicable time period prescribed for such
filing by the rules and regulations under the
Securities Act; no stop order suspending the
effectiveness of the Registration Statement
shall have been issued and no proceedings for
that purpose shall have been commenced or shall
be pending before or contemplated by the
Commission;
(ii) there shall not have been any downgrading,
nor shall any notice have been given of any
intended or potential downgrading or any review
or possible change that does not indicate the
direction of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating
organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities
Act subsequent to the date hereof;
(iii) there shall not have been any change, or
any development involving a prospective adverse
change, in the capital stock or in the long-term
debt of the Company or any of its Subsidiaries
from that set forth or incorporated by reference
in the Registration Statement and Prospectus
which would, in the opinion of the Agents,
materially impair the investment quality of the
Notes;
(iv) the Company and its Subsidiaries shall have
no liability or obligation, direct or contingent,
which is material to the Company and its
Subsidiaries, taken as a whole, other than those
reflected or incorporated by reference in the
Registration Statement and the Prospectus;
(v) there shall not have been any adverse change
or development involving a prospective adverse
change, in the condition, financial or otherwise,
of the Company or any of its Subsidiaries or the
earnings, affairs, or business prospects of the
Company or any of its Subsidiaries, whether or
not arising in the ordinary course of business,
which would, in the opinion of the Agents,
materially impair the investment quality of the
Notes; and
(vi) there shall not have been any (A) outbreak
or escalation of hostilities or other national or
international calamity or crisis or change in
economic conditions or in the financial markets
of the United States or elsewhere that, in the
judgment of the applicable Agent, is material and
adverse and would, in the judgment of the
applicable Agent, make it impracticable to market
the Notes on the terms and in the manner
contemplated in the Prospectus, (B) suspension or
material limitation of trading in securities on
the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market System or
limitation on prices for securities on any such
exchange or National Market System, (C)
enactment, publication, decree or other
promulgation of any federal or state statute,
regulation, rule or order of any court or other
governmental authority which in the opinion of
the Agents materially and adversely affects, or
will materially and adversely affect, the
business or operations of the Company or any
Subsidiary, (D) declaration of a banking
moratorium by either federal or New York State
authorities or (E) taking of any action by any
federal, state or local government or agency in
respect of its monetary or fiscal affairs which
in the opinion of the Agents has a material
adverse effect on the financial markets in the
United States.
(b) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable Terms
Agreement or other agreement, at the corresponding Time of
Delivery, Xxxxxxx X. Xxxx, General Counsel of the Company,
or such other counsel acceptable to the Agents, shall have
furnished to the Agents or the Purchaser, as the case may be,
his written opinion, dated the Commencement Date or Time of
Delivery, as the case may be, in form and substance
satisfactory to such Agents or such Purchaser, as the case
may be, to the effect that:
(i) the Company and each of the Subsidiaries has
been duly incorporated, is validly existing as a
corporation in good standing under the laws of
its jurisdiction of incorporation and has the
corporate power and authority required to carry
on its business as described in the Prospectus
and to own, lease and operate its properties;
(ii) each of the Company and the Subsidiaries is
duly qualified and is in good standing as a
foreign corporation authorized to do business in
each jurisdiction in which the nature of its
business or its ownership or leasing of property
requires such qualification, except where the
failure to be so qualified would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital
stock of the Company have been duly authorized
and validly issued and are fully paid,
non-assessable and not subject to any preemptive
or similar rights;
(iv) all of the outstanding shares of capital
stock of, or other ownership interests in, each
of the Subsidiaries have been duly and validly
authorized and issued, are fully paid and
non-assessable and are owned by the Company,
free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any
nature;
(v) the statements (A) incorporated by reference
in the Prospectus from Item 3 of the Company's
Annual Report on Form 10-K for the year ended
December 31, 1997 and (B) incorporated in the
Prospectus from Item 1 of Part II of the
Company's Quarterly Reports on Form 10-Q filed
since such Annual Report, insofar as such
statements constitute a summary of the legal
matters, documents or proceedings referred to
therein, fairly present the information called
for with respect to such legal matters,
documents and proceedings;
(vi) to the best of such counsel's knowledge,
there are no legal or governmental proceedings
pending or threatened to which the Company or
any of its subsidiaries is or could be a
party or to which any of their respective
property is or could be subject that are
required to be described in the Registration
Statement or the Prospectus and are not so
described or incorporated by reference, or
any statutes, regulations, contracts or other
documents that are required to be described
in the Registration Statement or the
Prospectus or are required to be filed as an
exhibit to the Registration Statement that
are not so described or filed or incorporated
by reference as required;
(vii) to the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries
is in violation of its respective certificate of
incorporation or by-laws except for such
violations that would not have a material adverse
effect on the Company and its subsidiaries, taken
as a whole, and, neither the Company nor any of
its Subsidiaries is in default in the
performance of any obligation, agreement,
covenant or condition contained in any bond,
debenture, indenture, loan agreement, mortgage,
lease or any other agreement or instrument that
is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of
its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or their
respective property is bound;
(viii) neither the Company nor any of the
Subsidiaries has violated any Environmental Law
or any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or the
rules and regulations promulgated thereunder,
except for such violations which, singly or in
the aggregate, would not have a material adverse
effect on the business, prospects, financial
condition or results of operation of the Company
and its subsidiaries, taken as a whole;
(ix) each of the Company and the Subsidiaries
has such Authorizations of, and has made all
filings with and notices to, all governmental or
regulatory authorities and self-regulatory
organizations and all courts and other tribunals,
including, without limitation, under any
applicable Environmental Laws, as are necessary
to own, lease, license and operate its
respective properties and to conduct its
business, except where the failure to have any
such Authorization or to make any such filing or
notice would not, singly or in the aggregate,
have a material adverse effect on the business,
prospects, financial condition or results of
operations of the Company and its Subsidiaries,
taken as a whole; each such Authorization is
valid and in full force and effect and each of
the Company and its Subsidiaries is in
compliance with all the terms and conditions
thereof and with the rules and regulations of the
authorities and governing bodies having
jurisdiction with respect thereto; and no event
has occurred (including, without limitation, the
receipt of any notice from any authority or
governing body) which allows or, after notice or
lapse of time or both, would allow, revocation,
suspension or termination of any such
Authorization or results or, after notice or
lapse of time or both, would result in any other
impairment of the rights of the holder of any
such Authorization; and such Authorizations
contain no restrictions that are materially
burdensome to the Company and its subsidiaries,
taken as a whole; except where such failure to
be valid and in full force and effect or to be
in compliance, the occurrence of any such event
or the presence of any such restriction would
not, singly or in the aggregate, have a material
adverse effect on the business, prospects,
financial condition or results of operations of
the Company and its subsidiaries, taken as a
whole;
(x) the execution, delivery and performance by
the Company of this Agreement, any applicable
Terms Agreement, the Indenture and the Notes
and compliance by the Company with all the
provisions hereof and thereof will not conflict
with or constitute a breach of any of the terms
or provisions of, or a default under, the
certificate of incorporation or by-laws of the
Company or any of its Subsidiaries or any
indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material
to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its
Subsidiaries is a party or by which the Company
or any of its Subsidiaries or their respective
property is bound, except for any such conflict,
breach or default which would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole, or violate or
conflict with any applicable law or any rule,
regulation, judgment, order or decree of any
court or any governmental body or agency having
jurisdiction over the Company, any of its
Subsidiaries or their respective property;
(xi) to the best of such counsel's knowledge,
all leases to which the Company or any of its
Subsidiaries is a party are valid and binding
and no default has occurred or is continuing
thereunder which might result in any material
adverse change in the business, prospects,
financial condition or results of operation
of the Company and its subsidiaries, taken as
a whole, and the Company and its Subsidiaries
enjoy peaceful and undisturbed possession
under all such leases to which any of them is
a party as lessee with such exceptions as do
not materially interfere with the use made by
the Company or such Subsidiary;
(xii) each document incorporated by reference in
the Registration Statement and the Prospectus
(except for the financial statements included
therein as to which no opinion need be
expressed) complied as to form when filed
with the Commission in all material respects
with the Securities Exchange Act of 1934, as
amended.
(xiii) (1) the Registration Statement and the
Prospectus (except for the financial statements,
including the notes thereto, and supporting
schedules and other financial, statistical and
accounting data contained or incorporated by
reference therein and the statements of
eligibility of the Trustees on Form T-1, as to
which no opinion need be expressed) comply as to
form in all material respects with the
requirements of the Securities Act and the rules
and regulations of the Commission thereunder;
and (2) nothing has come to the attention of
such counsel that would lead such counsel to
believe that (except for the financial
statements, including the notes thereto, and
supporting schedules and other financial,
statistical and accounting data contained or
incorporated by reference therein and the
statements of eligibility of the Trustees on Form
T-1 as to which no belief need be expressed) (x)
any part of the Registration Statement when such
part became effective or on the date of this
Agreement contained any 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
(y) the Prospectus on the date hereof contains
any untrue statement of a material fact or omits
to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; provided, however, that the opinion
and belief set forth in clauses (1) and (2) above
shall be deemed not to cover information
concerning an offering of particular Notes to the
extent such information will be set forth in a
supplement to the Prospectus.
The opinion described in Section 6 (b) above shall be rendered
to you at the request of the Company and shall so state therein.
(c) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable Terms
Agreement or other agreement, at the corresponding Time of
Delivery, Xxxxx Xxxx & Xxxxxxxx, counsel to the Agents, shall
have furnished to the Agents or such Purchaser, as the case
may be, their opinion, dated the Commencement Date or Time of
Delivery, as the case may be, to the effect that:
(i) the forms of the Notes have been duly
authorized and, when the terms of a particular
Note and its issuance and sale have been duly
established in conformity with the Indenture, and
when such Note has been duly executed and
authenticated in accordance with the provisions
of the Indenture and delivered to and paid for
by the purchasers thereof in accordance with the
terms of this Agreement and any applicable Terms
Agreement, such Note will be entitled to the
benefits of the Indenture and will be a valid and
binding obligation of the Company, enforceable
against the Company in accordance with its terms
except (a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors'
rights and remedies generally and (b) as such
enforcement may be limited by general principles
of equity, regardless of whether enforcement is
sought in a proceeding at law or in equity;
(ii) the Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended and
has been duly authorized, executed and delivered
by the Company and (assuming the due
authorization, execution and delivery thereof by
the Trustee) is a valid and binding agreement of
the Company, enforceable in accordance with its
terms except (a) as such enforcement may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting creditors' rights and remedies
generally and (b) as such enforcement may be
limited by general principles of equity,
regardless of whether enforcement is sought in a
proceeding at law or in equity;
(iii) each of this Agreement and any applicable
Terms Agreement has been duly authorized,
executed and delivered by the Company and is a
valid and binding agreement of the Company,
except as rights to indemnity and contribution
thereunder may be limited by applicable law;
(iv) the Registration Statement has become
effective under the Act, no stop order suspending
its effectiveness has been issued and no
proceedings for that purpose are, to the best of
such counsel's knowledge after due inquiry,
pending before or contemplated by the Commission;
(v) the statements (A) in the Basic Prospectus
under the captions "Description of Debt
Securities" and "Plan of Distribution" and in
the Prospectus Supplement under the captions
"Description of Notes" and "Plan of Distribution"
and (B) in the Registration Statement in Item 15
of Part II, insofar as such statements
constitute a summary of legal matters or
documents referred to therein, fairly present
the information called for with respect to such
legal matters and documents;
(vi) the execution, delivery and performance by
the Company of this Agreement, any applicable
Terms Agreement, the Notes and the Indenture and
compliance by the Company with all the
provisions hereof and thereof will not, to the
best of our knowledge require any consent,
approval, authorization or other order of any
court, regulatory body, administrative agency or
other governmental body (except such as may be
required under the Securities Act, the Trust
Indenture Act of 1939, as amended or state
securities or Blue Sky laws or by the National
Association of Securities Dealers, Inc.), except
where the failure to obtain such consents,
approvals, authorizations or other orders would
not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(vii) the Company is not an "investment
company" as such term is defined in the
Investment Company Act of 1940, as amended;
(viii) to the best of such counsel's knowledge
based solely upon due inquiry of responsible
officers of the Company, there are no contracts,
agreements or understandings between the Company
and any person granting such person the right to
require the Company to include securities of the
Company with the securities registered pursuant
to the Registration Statement; and
(ix) (1) the Registration Statement and the
Prospectus (except for the financial statements,
including the notes thereto, and supporting
schedules and other financial, statistical and
accounting data contained or incorporated by
reference therein and the statements of
eligibility of the Trustees on Form T-1, as to
which no opinion need be expressed) comply as to
form in all material respects with the
requirements of the Securities Act and the rules
and regulations of the Commission thereunder;
and (2) nothing has come to the attention of
such counsel that leads such counsel to believe
that (except for the financial statements,
including the notes thereto, and supporting
schedules and other financial, statistical and
accounting data contained or incorporated by
reference therein and the statements of
eligibility of the Trustees on Form T-1 as to
which no belief need be expressed) (x) any part
of the Registration Statement when such part
became effective or on the date of this
Agreement contained any 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
(y) the Prospectus on the date hereof contains
any untrue statement of a material fact or omits
to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; provided, however, that the opinion
and belief set forth in clauses (1) and (2)
above shall be deemed not to cover information
concerning an offering of particular Notes to
the extent such information will be set forth
in a supplement to the Prospectus.
In giving such opinions with respect to the matters covered by
Section 6(c) above, Xxxxx Xxxx & Xxxxxxxx may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto (other than the documents incorporated therein by reference) and
review and discussion of the contents thereof (including the documents
incorporated therein by reference), but are without independent check or
verification except as specified.
(d) On the Commencement Date, the Company's
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 and Prospectus, as then amended or supplemented,
shall have furnished to the Agents a letter, dated the
Commencement Date, in form and substance satisfactory to the
Agents, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information relating to the Company
contained in or incorporated by reference in the
Registration Statement and the Prospectus, as then amended
or supplemented.
(e) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable Terms
Agreement or other agreement, at the corresponding Time of
Delivery, the Agents or such Purchaser, as the case may be,
shall have received a certificate or certificates signed by
an executive officer of the Company, dated the Commencement
Date or Time of Delivery, as the case may be, to the effect
set forth in Section 6(a)(i), (ii), (iii), (iv) and (v)
above and to the further effect that (1) the representations
and warranties of the Company contained herein are true and
correct on and as of the Commencement Date or Time of
Delivery, as the case may be, as if made on and as of such
date and (2) the Company has complied with all agreements
and all conditions on its part to be performed or satisfied
hereunder or under the applicable Terms Agreement or other
agreement at or prior to the Commencement Date or Time of
Delivery, as the case may be.
(f) On the Commencement Date, Xxxxx Xxxx & Xxxxxxxx,
special tax counsel to the Company, shall have furnished
an opinion dated the Commencement Date confirming that
the information set forth in the Prospectus under the
caption "United States Tax Considerations" is accurate in
all material respects.
(g) On the Commencement Date and at each Time of
Delivery, the Company shall have furnished to the Agents or
the Purchaser, as the case may be, such further certificates,
information and documents as such Agents or such Purchaser,
as the case may be, may reasonably request.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls any Agent within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Agents furnished in writing
to the Company by or on behalf of any Agent expressly for use therein.
(b) In case any action shall be brought against any Agent or
any person controlling such Agent, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company,
such Agent shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses.
Any Agent or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Agent or such controlling person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both such Agent or such controlling person and the Company and such Agent or
such controlling person shall have been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to assume the defense of such action on behalf of such
Agent or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Agents and controlling persons, which firm shall be
designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
subject to approval by a majority of such Agents, and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Agent and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and
an indemnified party shall have requested the indemnifying party to reimburse
the indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than ten business days after the receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Agent
but only with reference to information relating to such Agent furnished in
writing by or on behalf of such Agent expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any such officer
or any person controlling the Company based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which indemnity may
be sought against any Agent, such Agent shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, such Agent shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Agent), and the
Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Agent, by Section 7(b)
hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Agents in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Agents shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Company, and the total underwriting discounts and commissions
received by the Agents from the offering of the Notes, bear to the total price
to the public of the Notes. The relative fault of the Company and the Agents
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the Agents 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 Section 7(d) were determined by pro
rata allocation (even if the 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 in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, 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 Section 7, no
Agent shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by or sold through such
Agent and distributed to the public 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective principal amount of Notes purchased by or through each of the
Agents hereunder and not joint.
8. Termination. (a) This Agreement may be terminated at any
time (i) by the Company with respect to any or all of the Agents or (ii) by
any Agent with respect to itself only, in each case upon the giving of written
notice of such termination to each other party hereto. Any Terms Agreement
shall be subject to termination in the absolute discretion of the Agent or
Agents that are parties thereto on the terms set forth or incorporated by
reference therein. The termination of this Agreement shall not require
termination of any agreement by an Agent to purchase Notes as principal
(whether pursuant to a Terms Agreement or otherwise) and the termination of
such an agreement shall not require termination of this Agreement. In the
event this Agreement is terminated with respect to any Agent, (x) this
Agreement shall remain in full force and effect with respect to any Agent as
to which such termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes which are already
issued, agreed to be issued or the subject of a pending offer at the time of
such termination and (z) in any event, the provisions of the fourth paragraph
of Section 2(a), Section 2(c), the last sentence of Section 4(d) and Sections
4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall survive; provided that if at the time
of termination an offer to purchase Notes has been accepted by the Company but
the time of delivery to the purchaser or its agent of such Notes has not yet
occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(h)
through 4(k) and 6 shall also survive. If any Terms Agreement is terminated,
the provisions of the last sentence of Section 4(d) and Sections 2(b), 2(d),
4(a), 4(b), 4(e), 4(g) through 4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall
have been incorporated by reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be
terminated by an Agent or Agents because of any failure or refusal on the part
of the Company to comply with the terms or to fulfill any of the conditions of
this Agreement or any Terms Agreement or if for any reason the Company shall
be unable to perform its obligations under this Agreement or any Terms
Agreement or any condition of any Agent's obligations cannot be fulfilled, the
Company agrees to reimburse each Agent or such Agents as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably
incurred by such Agent or Agents in connection with this Agreement or the
offering of Notes.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Notes 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 and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Notes. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes 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 Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation 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 Notes.
11. Notices. Except as otherwise specifically provided herein
or in the Administrative Procedures, all statements, requests, notices and
advices hereunder shall be in writing, and effective only on receipt, and will
be delivered by hand, by mail (postage prepaid), by telegram (charges prepaid),
telex or telecopier. Communications to the Agents will be sent, in the case of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, to 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopier: (000) 000-0000; Attention: Xxxxx Xxxxxxx
and, if sent to the Company, to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
Telecopier: (000) 000-0000; Attention: Xxxxxxx Xxxxxxxxxxx, Senior Vice
President and Treasurer.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by
the Company and each Agent; provided that the Company may from time to time,
on 2 days prior written notice to the Agents but without the consent of any
Agent, amend this Agreement to add as a party hereto one or more additional
firms registered under the Exchange Act, whereupon each such firm shall become
an Agent hereunder on the same terms and conditions as the other Agents that
are parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day"
shall mean any day which is not a Saturday or Sunday or legal holiday or a day
on which banks in New York City are required or authorized by law, regulation
or executive order to close.
15. Applicable Law. This Agreement and any Terms Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding,
please sign and return to us 16 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,
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
By:________________________________
Name:
Title:
Accepted in New York, New York,
as of the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:________________________________
Name:
Title:
EXHIBIT A
[Principal Amount]
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
____________ ___, 199_
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Distribution Agreement dated as of
October __, 1998 (the "Distribution Agreement")
The undersigned agrees to purchase Medium-Term Notes having the
following terms:
FLOATING RATE FIXED RATE AMORTIZING DUAL CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
---------- ------------- ---------- ---------- ------------- --------------
Principal Amount: Interest Rate Basis Amortization
or Bases: Interest Rate: % Schedule Face Amount Currency: Index Currency:
Purchase If LIBOR: Face Amount: Currency Base
Price: % [ ] LIBOR Reuters Rate:
[ ] LIBOR Telerate
Settlement Date Index Maturity: Optional Payment Determination
and Time: Currency: Agent:
Place of Delivery: Spread (plus Designated Exchange
or minus): % Rate:
Original Issue Spread Option Election Date(s):
Date: Multiplier: %
Specified Currency: Initial Interest Option Value Calculation
[ ] U.S. dollars Rate: % Agent:
[ ] Other:
Authorized Initial Interest
Denomination: Reset Date:
[ ] $1,000 andInterest Reset
integral multiples Date(s)
thereof
[ ] Other:
Maturity Date: Maximum Interest
Rate: %
Interest Minimum Interest
Payments Date(s): Rate: %
Optional Repayment INTEREST
Date(s): CATEGORY:
Initial Redemption [ ] Regular Floating
Date: Rate Note
Initial Redemption [ ] Floating Rate/Fixed
Percentage: % Rate Note Fixed
Rate Commencement
Date:
Annual Redemption Fixed Rate
Percentage Interest: %
Reduction: %
[ ] Original Issue [ ] Inverse Floating
Discount Note Rate Note
Issue Price: % Fixed Interest
Rate:
Exchange Rate [ ] Original Issue
Agent: Discount Note
Issue Price:
Other Provisions:
[The certificate referred to in Section 6(e) of the
Distribution Agreement and the opinions referred to in Sections 6(b) and 6(c)
of the Distribution Agreement will be required.]
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7,
10, 11, 12 and 15 of the Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is subject to termination in our absolute
discretion on the terms incorporated by reference herein. If this Agreement is
so terminated, the provisions set forth in the last sentence of Section 8 of
the Distribution Agreement shall survive for the purposes of this Agreement.
[NAME OF AGENT(S)]
By_________________________
Name:
Title:
Accepted:
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
By________________________________
Name:
Title:
EXHIBIT B
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
______________________________________
The Medium-Term Notes (the "Notes"), are to be offered on a
continuous basis by Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc. (the "Company").
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation (the "Agent", and together
with any additional agents appointed from time to time pursuant to Section 13
of the Agreement (as defined herein), the "Agents") has agreed to solicit
offers to purchase the Notes in registered form. The Notes are being sold
pursuant to a Distribution Agreement dated as of October 30, 1998 (the
"Agreement") between the Company and the Agents. In the Agreement, each Agent
has agreed to use its reasonable efforts to solicit purchases of the Notes.
Each Agent, as principal, may purchase Notes for its own account and if it
does so, the Company and such Agent will enter into a terms agreement (each, a
"Terms Agreement"), as contemplated by the Agreement.
The Notes will be issued under an Indenture dated as of June 8,
1998 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Chase Manhattan Bank (the "Bank") will be the
Registrar, Calculation Agent, Authenticating Agent and Paying Agent for the
Notes, and will perform the duties specified herein. Each Note will bear
interest at either a fixed rate (the "Fixed Rate Notes"), or a floating rate
(the "Floating Rate Notes"). The Notes will be issued in U.S. dollars or other
currencies, currency units or composite currencies (the "Specified Currency").
Each Note will be represented by either a Global Security (as defined below)
delivered to the Bank, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a
certificate issued in definitive form delivered to the holder thereof or a
person designated by such holder (a "Certificated Note"). Certificated Notes
will not be exchangeable for Book-Entry Notes, and Book-Entry Notes will not
be exchangeable for and will not otherwise be issuable as Certificated Notes
except in limited circumstances.
Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may subsequently
be amended as the result of changes in DTC's operating procedures, and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indenture or the Notes shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Bank 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 Bank to DTC, dated as of the date of the Agreement
(the "Letter of Representation"), and a Medium-Term Note Certificate Agreement
between the Bank and DTC, dated as of [December 2, 1988] [March 10, 1989], and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to U.S.
$200,000,000 principal amount (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) of
all such Notes that have the same Purchase Price,
Settlement Date, Maturity Date, redemption or
repayment provisions, Interest Payment Date(s),
Original Issue Date, original issue discount
provisions (if any), and, in the case of Fixed
Rate Notes, Interest Rate, modified payment upon
redemption, repayment or acceleration (if any),
amortization schedule (if any) or, in the case of
Floating Rate Notes, Initial Interest Rate,
Interest Payment Period, Calculation Agent,
Interest Rate Basis, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Alternate Rate Event
Spread (if any), Minimum Interest Rate (if any)
and Maximum Interest Rate (if any), Index currency
(if any) and, in each case, any other relevant
terms (collectively "Terms"). Each Global
Security will be dated and issued as of the date
of its authentication by the Bank. Each Global
Security will bear an "Interest Accrual Date,"
which will be (i) with respect to any Global
Security (or any portion thereof) issued on any
date of settlement, its original issuance date and
(ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange
of a Global Security, or in lieu of a destroyed,
lost or stolen Global Security, the most recent
Interest Payment Date to which interest had been
paid or duly provided for on the predecessor
Global Security or Securities (or if no such
payment or provision has been made, the original
issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global Security. No Global
Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any
Certificated Note.
The Company has arranged with the CUSIP Numbers
Service Bureau of Standard & Poor's Corporation
(the "CUSIP Service Bureau") for the reservation
of a series of approximately 900 CUSIP numbers
(including tranche numbers) for assignment to the
Global Securities representing the Book-Entry
Notes. The Company has obtained from the CUSIP
Service Bureau a written list of each series of
reserved CUSIP numbers and has delivered to the
Bank and DTC the written list of 900 CUSIP numbers
of such series. The Bank will assign CUSIP
numbers to Global Securities as described below
under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP
numbers that the Bank has assigned to Global
Securities. At any time when fewer than 100 of
the reserved CUSIP numbers of either series remain
unassigned to Global Securities, the Bank shall so
advise the Company and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-
Entry Notes. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to the Bank and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by
such owner) will designate one or more
participants in DTC with respect to such Book-
Entry Note (the "Participants") to act as agent or
agents for such owner in connection with the book-
entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such beneficial
owner in such Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or
through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Book-Entry Note.
Exchanges: The Bank may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent Book-
Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a
date, occurring at least thirty days after such
written notice is delivered and at least thirty
days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP
number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will
send to its Participants (including the Bank) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to
the specified exchange date, the Bank will deliver
to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date,
the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, the Bank will exchange
such Global Securities for a single Global
Security bearing the new CUSIP number and a new
Interest Accrual Date, and the CUSIP numbers of
the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed U.S.$200,000,000
(or, if the Specified Currency is other than U.S.
dollars, the equivalent thereof in such Specified
Currency) in aggregate principal amount, one
Global Security will be authenticated and issued
to represent each U.S. $200,000,000 principal
amount (or, if the Specified Currency is other
than U.S. dollars, the equivalent thereof in such
Specified Currency) of the exchanged Global
Security and an additional Global Security will be
authenticated and issued to represent any
remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine
months or more from its date of issue.
Currency: Book-Entry Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Notice of Redemption The Bank will give notice to DTC prior to each
and Repayment Dates: redemption date or repayment date (as specified in
the Note), if any, at the time and in the manner
set forth in the Letter of Representation.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Book-Entry Notes will be issued in
denominations of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable
Pricing Supplement) or any amount in excess
thereof which is an integral multiple of $1,000
(or, if the Specified Currency is other than U.S.
dollars, integral multiples of such minimum
denomination thereof specified in the applicable
Pricing Supplement). Global Securities will be
denominated in principal amounts not in excess of
U.S. $200,000,000 (or, if the Specified Currency
is other than U.S. dollars, the equivalent thereof
in such Specified Currency). If one or more Book-
Entry Notes having an aggregate principal amount
in excess of U.S. $200,000,000 (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency)
would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be issued to represent each
U.S. $200,000,000 principal amount (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) of
such Book-Entry Note or Notes and an additional
Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest: General. Unless otherwise specified in the applicable
Pricing Supplement, interest on each Book-Entry Note
will accrue from the Interest Accrual Date of the
Global Security representing such Book-Entry Note.
Each payment of interest on a Book-Entry Note will
include interest accrued from and including the
immediately preceding Interest Payment Date in
respect of which interest has been paid or duly
made available for payment (or from and including
the date of issue, if no interest has been paid
with respect to such Book-Entry Note) to but
excluding the related Interest Payment Date or the
Maturity Date, as the case may be. Interest
payable at the maturity or upon redemption or
repayment of a Book-Entry Note will be payable to
the person to whom the principal of such Note is
payable. Standard & Poor's Corporation will use
the information received in the pending deposit
message described under Settlement Procedure "C"
below in order to include the amount of any
interest payable and certain other information
regarding the related Global Security in the
appropriate weekly bond report published by
Standard & Poor's Corporation.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
Interest Payment Dates for Fixed Rate Book-Entry
Notes will be June 15 and December 15 of each
year; provided that, in addition to other amounts
due and payable on any Maturity Date, interest
accrued from and including the immediately
preceding Interest Payment Date shall be paid on
such Maturity Date. In the event that any
Interest Payment Date or Maturity Date for a Fixed
Rate Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date or Maturity Date
to such next succeeding Business Day. The first
payment of interest on any Fixed Rate Book-Entry
Note issued between a Record Date and an Interest
Payment Date will be made on the Interest Payment
Date following the next succeeding Record Date.
Floating Rate Book-Entry Notes. Except as
provided in the applicable Pricing Supplement,
interest will be payable in the case of Floating
Rate Book-Entry Notes which reset (i) daily,
weekly or monthly, on a Business Day that occurs
in each month or that occurs in each third month,
as specified in the applicable Pricing Supplement;
(ii) quarterly, on a Business Day that occurs in
each third month, as specified in the applicable
Pricing Supplement; (iii) semiannually, on a
Business Day that occurs in each of two months of
each year, as specified in the applicable Pricing
Supplement; and (iv) annually, on a Business Day
that occurs in one month of each year, as
specified in the applicable Pricing Supplement
(each, an "Interest Payment Date"), and, in each
case, on the Maturity Date. If an Interest
Payment Date for Floating Rate Book-Entry Notes
would otherwise be a day that is not a Business
Day, such Interest Payment Date will be the next
succeeding Business Day and no interest shall
accrue for the period from and after such Interest
Payment Date, except that if such Note is a LIBOR
Note and such Business Day falls in the next
succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business
Day. In the case of a Floating Rate Book-Entry
Note issued between a Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Record Date.
Notice of Interest Payment and Record Dates. On
the first Business Day of January, April, July and
October of each year, the Bank will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with
respect to Book-Entry Notes during the three-month
period beginning on such first Business Day.
Calculation of Fixed Rate Book-Entry Notes. Unless otherwise
Intrest: specified in the applicable Pricing Supplement,
interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated
on the basis of a 360-day year of twelve 30-day
months.
Floating Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Book-Entry Notes
will be determined as set forth in the form of
such Notes. Interest on Floating Rate Book-Entry
Notes will be calculated on the basis of actual
days elapsed and a year of 360 days except that in
the case of Treasury Rate Notes, interest will be
calculated on the basis of the actual number of
days in the year.
Payments of Principal Payments of Interest. Promptly after each Record Date,
and Interest: the Bank will deliver to the Company and DTC a written
notice specifying by CUSIP number the amount of
interest to be paid on each Global Security other
than an Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption
or repayment date) and the total of such amounts.
DTC will confirm the amount payable on each such
Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. In the case of
Amortizing Notes, the Bank will provide separate
written notice to DTC prior to each Interest
Payment Date at the time and in the manner set
forth in the Letter of Representation. The
Company will pay to the Bank, as paying agent, the
total amount of interest due on such Interest
Payment Date (and, in the case of an Amortizing
Note, principal and interest) (other than at
maturity), and the Bank will pay such amount to
DTC at the times and in the manner set forth below
under "Manner of Payment."
Payments at Maturity or Upon Redemption or
Repayment. On or about the first Business Day of
each month, the Bank will deliver to the Company
and DTC a written list of principal and interest
to be paid on each Global Security other than an
Amortizing Note maturing either at maturity or on
a redemption or repayment date in the following
month. The Company and DTC will confirm the
amounts of such principal and interest payments
with respect to each such Global Security on or
about the fifth Business Day preceding the
Maturity Date or redemption or repayment date of
such Global Security. In the case of Amortizing
Notes, the Bank will provide separate written
notice to DTC prior to the Maturity Date and any
redemption or repayment date, as the case may be,
at the times and in the manner set forth in the
Letter of Representation. The Company will pay to
the Bank, as the paying agent, the principal
amount of such Global Security, together with
interest due at such Maturity Date or redemption
or repayment date. The Bank will pay such amounts
to DTC at the times and in the manner set forth
below under "Manner of Payment." If any Maturity
Date or redemption or repayment date of a Global
Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day with
respect to such Book-Entry Note. No interest
shall accrue for the period from and after the
Maturity Date or redemption or repayment date to
such next succeeding Business Day. Promptly after
payment to DTC of the principal and interest due
on the Maturity Date or redemption or repayment
date of such Global Security, the Bank will cancel
such Global Security in accordance with the terms
of the Indenture and deliver it to the Company
with a certificate of cancellation.
Manner of Payment. Payments on Global Securities
denominated in U.S. dollars will be made in the
manner described below. Payments on Global
Securities denominated in a Specified Currency,
other than U.S. dollars will be made in accordance
with DTC's "Issuing/Paying Agent General Operating
Procedures and Participant Terminal System
Procedures for Medium-Term Notes (MTNs) Including
Deposit Notes and Medium-Term Bank Notes,"
subject, further, to the provisions of the Notes.
The total amount of any principal and interest due
on Global Securities on any Interest Payment Date
or at maturity or upon redemption or repayment
shall be paid by the Company to the Bank in funds
available for immediate use by the Bank not later
than 9:30 A.M. (New York City time) on such date.
The Company will make such payment on such Global
Securities by instructing the Bank to withdraw
funds from an account maintained by the Company at
the Bank. The Company will confirm such
instructions in writing to the Bank. Payment
shall be made prior to 10:00 A.M. (New York City
time) or as soon thereafter as practicable, on
each Maturity Date or redemption or repayment date
or, if either such date is not a Business Day, as
soon as possible thereafter, the Bank will pay by
separate wire transfer (using Fedwire message
entry instructions in a form previously specified
by DTC) to an account at the Federal Reserve Bank
of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment
of principal (together with interest thereon) due
on Global Securities on any Maturity Date or
redemption or repayment date. On each Interest
Payment Date or, if any such date is not a
Business Day, as soon as possible thereafter,
interest payments and, in the case of Amortizing
Notes, interest and principal payments shall be
made to DTC in same day funds in accordance with
existing arrangements between the Bank and DTC.
Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedures then
in effect, such amounts in funds available for
immediate use to the respective Participants in
whose names the Book-Entry Notes represented by
such Global Securities are recorded in the book-
entry system maintained by DTC. Neither the
Company nor the Bank shall have any responsibility
or liability for the payment by DTC to such
Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments directly to
the beneficial owner of such Note.
Preparation If any order to purchase any Book-Entry Notes is
of Pricing Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424 under the Securities Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent
shall request by the close of business on the
following Business Day. The relevant Agent will
cause such Pricing Supplement to be delivered to
the purchaser of the Note. In each instance that
a Pricing Supplement is prepared, the Agents
receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier
than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent shall
be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such
Note is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Dates,
Interest Payment Period, Calculation Agent,
Interest Rate Basis, Index Maturity, Interest
Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any) and Maximum Interest Rate (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. The Specified Currency
8. Agent's commission, if any, determined as
provided in the Agreement.
9. Whether the Note is an Indexed Note, and if it
is an Indexed Note, the Indexed Currency, the
Currency Interest Rate Basis and the
Determination Agent.
10. Whether the Note is a Dual Currency Note,
and if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
11. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity
Date, the Final Maturity Date, the Election
Dates and the Maturity Extension Dates.
12. Whether the Company has the option to
extend the Original Maturity Date of the Note,
and if so, the Final Maturity Date of such
Note.
13. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified
Payment upon Acceleration (and, if so, the
Issue Price).
14. Any other applicable Terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing
at any time on the same date) of the
information set forth in Settlement Procedure
"A" above. The Bank will then assign a CUSIP
number to the Global Security representing
such Note and will notify the Company and the
Agent of such CUSIP number by telephone as
soon as practicable.
C. The Bank will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the relevant Agent and Standard & Poor's
Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which
in the case of Floating Rate Notes which reset
daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Record
Date as defined in the Note) and, if known,
the amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
5. Whether such Note is an Amortizing Note (by
an appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agents
and the Bank.
D. The Bank will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to the Bank's participant
account at DTC.
F. The Bank will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
to (i) debit such Note to the Bank's participant
account and credit such Note to the relevant
Agent's participant account and (ii) debit such
Agent's settlement account and credit the
Bank's settlement account for an amount equal
to the price of such Note less such Agent's
commission, if any. The entry of such a
deliver order shall constitute a representation
and warranty by the Bank to DTC that (a) the
Global Security representing such Book-Entry
Note has been issued and authenticated and (b)
the Bank is holding such Global Security
pursuant to the Medium Term Note Certificate
Agreement between the Bank and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such
Note to the participant accounts of the
Participants with respect to such Note and (ii)
to debit the settlement accounts of such
Participants and credit the settlement account
of such Agent for an amount equal to the price
of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the
settlement date.
I. With respect to Notes denominated in U.S.dollars,
the Bank will credit to the U.S. dollar account
of the Company maintained at a bank located in
New York City (or with respect to Notes payable
in a Specified Currency other than U.S.
dollars, to a bank notified to such Agent from
time to time in writing, which bank shall be
located outside the United Kingdom in the case
of Notes payable in a Specified Currency other
than pounds sterling and which mature not later
than five years from and including the date of
issue thereof), notified to the Bank from time
to time in writing, in funds available for
immediate use in the amount transferred to the
Bank, in accordance with Settlement Procedure
"F".
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Quarterly, the Bank will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indenture and setting forth a brief description
of any sales of which the Company has advised
the Bank but which have not yet been settled.
Settlement Procedures For sales by the Company of Book-Entry Notes to or
Timetable: through an Agent for settlement on the first Business
Day after the sale date, Settlement Procedures "A"
through "J" set forth above shall be completed as
soon as possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
---------------
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A",
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon
and 2:00 P.M., respectively, on the first Business
Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedure
"B" and "C" shall be completed as soon as such
rate has been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the second
Business Day before the settlement date.
Settlement Procedure "H" is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or cancelled, the
Bank, after receiving notice from the Company or
the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.
on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If the Bank fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Bank may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the Bank's participant account,
provided that the Bank's participant account
contains a principal amount of the Global Security
representing such Note that is at least equal to
the principal amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Security, the Bank will mark such Global Security
"cancelled," make appropriate entries in the
Bank's records and send such cancelled Global
Security to the Company. The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned. If a
withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Bank will
exchange such Global Security for two Global
Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled
immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the relevant Agent may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "F" and
"G", respectively. Thereafter, the Bank will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes to have been represented by a Global
Security, the Bank will provide, in accordance
with Settlement Procedures "D" and "F", for the
authentication and issuance of a Global Security
representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank to
risk or expend its own funds in connection with any
payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all
parties that payments made by the Bank to the
Company, the Agents, DTC or any holders of Notes
shall be made only to the extent that funds are
provided to the Bank for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Bank will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Bank. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to any Certificated
Note (or any portion thereof) issued on any date of
settlement, such date of settlement and (ii) with respect
to any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a Certificated
Note or in lieu of a destroyed, lost or stolen
Certificated Note, the original issuance date of the
predecessor Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated
Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Bank.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine
months or more from its date of issue.
Currency: Certificated Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Certificated Notes will be issued in
principal amounts of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable Pricing
Supplement), or any amount in excess thereof which is
an integral multiple of $1,000 (or, if the Specified
Currency is other than U.S. dollars, integral multiples
of such minimum denomination thereof specified in the
applicable Pricing Supplement).
Interest: General. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest
periods. Unless otherwise specified in the applicable
Pricing Supplement, each payment of interest on a
Certificated Note will include interest accrued from and
including the immediately preceding Interest Payment
Date to but excluding the related Interest Payment Date
or the Maturity Date, as the case may be.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement, Interest
Payment Dates for Fixed Rate Certificated Notes will
be made semiannually on June 15 and December 15 of
each year; provided that, in addition to other amounts
due and payable on any Maturity Date, interest accrued
from and including the immediately preceding Interest
Payment Date shall be paid on such Maturity Date. In
the event that any Interest Payment Date or Maturity
Date for a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day, and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date or Maturity
Date to such next succeeding Business Day. The first
payment of interest on any Fixed Rate Certificated Note
issued between a Record Date and an Interest Payment
Date will be made on the Interest Payment Date
following the next succeeding Record Date.
Floating Rate Certificated Notes. Except as provided in
the applicable Pricing Supplement, interest will be
payable in the case of Floating Rate Certificated Notes
which reset (i) daily, weekly or monthly, on a Business
Day that occurs in each month or that occurs in each
third month, as specified in the applicable Pricing
Supplement; (ii) quarterly, on a Business Day that
occurs in each third month, as specified in the
applicable Pricing Supplement; (iii) semiannually, on a
Business Day that occurs in each of two months of each
year, as specified in the applicable Pricing Supplement;
and (iv) annually, on a Business Day that occurs in one
month of each year, as specified in the applicable
Pricing Supplement (each, an "Interest Payment Date"),
and, in each case, on the Maturity Date. If an Interest
Payment Date for Floating Rate Certificated Notes
would otherwise be a day that is not a Business Day,
such Interest Payment Date will be the next succeeding
Business Day and no interest shall accrue for the period
from and after such Interest Payment Date, except that
if such Note is a LIBOR Note and such Business Day
falls in the next succeeding calendar month, such
Interest Payment Date will be the immediately
preceding Business Day. In the case of a Floating Rate
Certificated Note issued between a Record Date and an
Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Record Date.
Calculation of Interest: Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest
on Fixed Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest
rates on Floating Rate Certificated Notes will be
determined as set forth in the form of such Notes.
Interest on Floating Rate Certificated Notes will be
calculated on the basis of actual days elapsed and a year
of 360 days except that in the case of Treasury Rate
Notes, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal Payments on Certificated Notes denominated in U.S.
and Interest: dollars will be made in the manner described below.
Payments on Certificated Notes denominated in a
Specified Currency other than U.S. dollars will be
made in the manner described below, except as
otherwise provided in the Notes. The Bank will pay the
principal amount of each Certificated Note at maturity
or upon redemption or repayment upon presentation and
surrender of such Note to the Bank. Such payment,
together with payment of interest due at maturity or
upon redemption or repayment of such Note, will be
made in funds available for immediate use by the Bank
and in turn by the holder of such Note. Certificated
Notes presented for payment to the Bank at maturity or
upon redemption or repayment will be cancelled by the
Bank and delivered to the Company with a certificate of
cancellation. All interest payments on a Certificated
Note (other than interest due at maturity or upon
redemption or repayment) will be made by check drawn
on the Bank (or another person appointed by the Bank)
and mailed by the Bank to the person entitled thereto as
provided in such Note and the Indenture; provided,
however, that the holder of U.S. $5,000,000 (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) or more
in aggregate principal amount of Certificated Notes
(having identical terms and provisions) will be entitled
to receive payments of interest by wire transfer of
immediately available funds to an account maintained
by the holder within the United States. Following each
Record Date, the Bank will furnish the Company with a
list of interest payments to be made on the following
Interest Payment Date for each Certificated Note and in
total for all Certificated Notes. Interest at maturity or
upon redemption or repayment will be payable to the
person to whom the payment of principal is payable.
The Bank will provide monthly to the Company lists of
principal and interest, to the extent ascertainable, to be
paid on Certificated Notes maturing or to be redeemed
in the next month. The Bank will be responsible for
withholding taxes on interest paid on Certificated Notes
as required by applicable law.
If the Maturity Date or redemption or repayment date
of a Certificated Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such
Interest Payment Date, Maturity Date or redemption or
repayment date, as the case may be.
Preparation of Pricing If any order to purchase a Certificated Note is accepted
Supplement: by or on behalf of the Company, the Company will
prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note and will arrange to
file such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424
under the Securities Act and will deliver the number of
copies of such Pricing Supplement to the relevant Agent
as such Agent shall request by the close of business on
the following Business Day. The relevant Agent will
cause such Pricing Supplement to be delivered to the
purchaser of the Note. In each instance that a Pricing
Supplement is prepared, the Agents receiving such
Pricing Supplement will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated Note
delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the
Company will be settled on or before the third Business
Day next succeeding the date of acceptance pursuant to
the timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another date.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note sold by the Company to or through an Agent shall
be as follows:
A. The relevant Agent will advise the Company
by facsimile transmission or telephone that
such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, the applicability of Annual
Interest Payments and whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate (if
known at such time), Interest Payment Dates,
Interest Payment Period, Calculation Agent,
Interest Rate Basis, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest
Rate (if any), Maximum Interest Rate (if any),
and the Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined as
provided in the Agreement.
11. Specified Currency
12. Denominations.
13. Whether the Note is an Indexed Note, and if it
is an Indexed Note, the Indexed Currency, the
Currency Interest Rate Basis and the
Determination Agent.
14. Whether the Note is a Dual Currency Note,
and if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
15. If applicable, wire transfer instructions,
including name of banking institution where
transfer is to be made and account number.
16. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity
Date, the Final Maturity Date, the Election
Dates and the Maturity Extension Dates.
17. Whether the Company has the option to
extend the Original Maturity Date of the Note,
and, if so, the Final Maturity Date of such
Note.
18. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified
Payment upon Acceleration (and, if so, the
Issue Price).
19. Any other applicable terms.
B. The Company will advise the Bank by
telephone or electronic transmission
(confirmed in writing at any time on the sale
date) of the information set forth in Settlement
Procedure "A" above.
C. The Company will have delivered to the Bank
a pre-printed fourply packet for such Note,
which packet will contain the following
documents in forms that have been approved
by the Company, the relevant Agent and the
Bank:
1. Note with customer confirmation.
2. Stub One - For the Bank.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Bank will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will
acknowledge receipt of the Note by stamping
or otherwise marking Stub One and returning
it to the Bank. Such delivery will be made
only against such acknowledgment of receipt
and evidence that instructions have been given
by such Agent for payment to the U.S. dollar
account of the Company maintained at the
Bank, New York, New York (or, with respect
to Notes payable in a Specified Currency other
than U.S. dollars, to an account maintained at
a bank selected by the Company which bank
shall be located outside the United Kingdom in
the case of Notes payable in a Specified
Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof) in funds
available for immediate use, of an amount
equal to the price of such Note less such
Agent's commission, if any. In the event that
the instructions given by such Agent for
payment to the account of the Company are
revoked, the Company will as promptly as
possible wire transfer to the account of such
Agent an amount of immediately available
funds equal to the amount of such payment
made.
E. Unless the relevant Agent purchased such
Note as principal, such Agent will deliver
such Note (with confirmation) to the customer
against payment in immediately available
funds. Such Agent will obtain the
acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Bank will send Stub Three to the
Company by first-class mail. Periodically, the
Bank will also send to the Company a
statement setting forth the principal amount of
the Notes Outstanding as of that date under
the Indenture and setting forth a brief
description of any sales of which the Company
has advised the Bank but which have not yet
been settled.
Settlement Procedures For sales by the Company of Procedures Certificated
Timetable: Notes to or through an Agent, Settlement Procedures
"A" through "F" set forth above shall be completed on
or before the respective times (New York City time) set
forth below:
Settlement
Procedure
----------
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant Agent
will notify the Company and the Bank by telephone and
return such Note to the Bank. Upon receipt of such
notice, the Company will immediately wire transfer to
the account of such Agent an amount equal to the
amount previously credited thereto in respect of such
Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Distribution
Agreement with the Company, then the Company will
reimburse such Agent or the Bank, as appropriate, on
an equitable basis for its loss of the use of the funds
during the period when they were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such failure
occurred, the Bank will mark such Note "cancelled,"
make appropriate entries in the Bank's records and send
such Note to the Company.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank to
risk or expend its own funds in connection with any
payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all parties that
payments made by the Bank to the Company, the
Agents, DTC or any holders of Notes shall be made
only to the extent that funds are provided to the Bank
for such purpose.
EXHIBIT C
[Letterhead of Purchaser]
_______, 199_
Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter sets forth the terms and conditions upon which
[name of Purchaser] (the "Purchaser") proposes to purchase as principal from
Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc. (the "Company") the Medium-Term Notes (the
"Purchased Securities") of the Company described in Schedule I hereto and in
the Company's Prospectus dated June 1, 1998, as supplemented by the Prospectus
Supplement dated October __, 1998 and Pricing Supplement No. [insert number]
relating to the Purchased Securities (collectively, the "Prospectus").
The Company acknowledges that it has entered into a
Distribution Agreement, dated October __, 1998 (the "Distribution Agreement"),
with Xxxxxxxxx Xxxxxx & Xxxxxxxx Securities Corporation, (the "Agent", and
together with any additional agents appointed from time to time pursuant to
Section 13 thereof, the "Agents") providing for the sale of its Medium-Term
Notes due nine months or more from date of issue to or through the Agents
acting as principal or agent. The Company represents and warrants to the
Purchaser that the representations and warranties of the Company made in the
Distribution Agreement are true and correct as though made on and as of the
date hereof and will be true and correct on and as of the Time of Delivery;
provided, however, that the following terms have the meanings indicated: (i)
"Agent" means the Purchaser; (ii) "this Agreement" means this letter and (iii)
"Notes" means the Purchased Securities.
The Company and the Purchaser further agree that the following
provisions of the Distribution Agreement shall be incorporated by reference
into and made a part of this letter with respect to the Purchased Securities,
as if the Purchaser were an Agent purchasing Notes as principal pursuant to a
Terms Agreement and this letter were a Terms Agreement (and the Purchaser were
the Agent signatory thereto): (i) Section 4, for so long as the Purchaser
shall be required to deliver a prospectus in connection with the Purchased
Securities; (ii) Section 5; (iii) Section 6; and (iv) Section 7.
Terms used herein without definition have the meanings
specified in the Distribution Agreement.
Very truly yours,
[NAME OF PURCHASER]
By:________________________________
Name:
Title:
Agreed and accepted.
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
By_______________________________
Name:
Title:
Schedule I
Designation:
Principal Amount:
Issue Price:
Original Issue Date:
Interest rate and
other provisions: As described in the Prospectus
Purchase Price:
Time of Delivery:
Place of Delivery:
Manner of payment As described in the Administrative
and delivery: Procedures relating to [Book-Entry]
[Certificated] Notes or as otherwise agreed
by the parties
Other Terms:
