EXHIBIT 1.1
XXXXXXX & XXXXX, INCORPORATED
$500,000,000
MEDIUM-TERM NOTES, SERIES I
AMENDED AND RESTATED U.S. DISTRIBUTION AGREEMENT
November __, 2000
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the U.S. Distribution Agreement (the "Original
Agreement"), dated as of November 24, 1999, among XXXXXXX & XXXXX, INCORPORATED,
a Missouri corporation (the "Company"), and BEAR, XXXXXXX & CO INC., CHASE
SECURITIES INC. and XXXXXXX, XXXXX & CO. (each, an "Agent", and collectively,
the "Agents"), pursuant to which the Company appointed each Agent as an agent of
the Company for the purpose of soliciting and receiving offers to purchase its
Medium-Term Notes, Series I (the "Securities") in an aggregate amount up to
$500,000,000 (or the equivalent thereof in one or more foreign currencies or
composite currencies). On November 5, 1999, the Company filed a Registration
Statement on Form S-3 (File No. 333-90443), together with a prospectus
supplement relating to the Securities (collectively, the "Original Registration
Statement") with the Securities and Exchange Commission (the "Commission"),
which was declared effective by the Commission on November 15, 1999. On
November __, 2000, the Company filed a Registration Statement on Form S-3 (File
No. 333-______) (the "New Registration Statement"), which pursuant to Rule
429(b) of the Securities Act of 1933, as amended (the "Act"), carried forward
$150,000,000 of the Securities previously registered on the Original
Registration Statement, and registered an additional $350,000,000 of Securities.
In connection with the filing of the New Registration Statement, the Company is
entering
1
into this agreement with each of you (this "Agreement"), which shall be deemed
to amend, restate and supercede the Original Agreement in its entirety.
The Company proposes to issue and sell from time to time its Securities in
an aggregate amount up to $500,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) and agrees with each of you,
individually, as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Agreement
shall not be construed to create either an obligation on the part of the Company
to sell any Securities or an obligation of any of the Agents to purchase
Securities as principal.
The Securities will be issued under a senior indenture, dated as of
November 24, 1999 (the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee (the "Trustee"). The Securities shall have the maturity
ranges, interest rates, if any, redemption provisions and other terms set forth
in the Prospectus referred to below as it may be amended or supplemented from
time to time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent that:
(a) (i) The Original Registration Statement and the New Registration
Statement in respect of the Securities have been filed with the Commission; (ii)
such registration statements and any post-effective amendments thereto, each in
the form heretofore delivered or to be delivered to such Agent, including all
documents incorporated by reference in the prospectus included in such
registration statements and any post-effective amendments thereto, have been
declared effective by the Commission in such form; (iii) no other document with
respect to such registration statements or documents incorporated by reference
therein or any post-effective amendments thereto has heretofore been filed or
transmitted for filing with the Commission (other than one or more prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the Agents); and (iv) no
stop order suspending the effectiveness of any such registration statements has
been issued and no proceeding for that purpose has been initiated or threatened
by the Commission (each and every preliminary prospectus included in such
registration statements or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act, is hereinafter called
a "Preliminary
2
Prospectus"; (v) the various parts of each such registration statement,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in each such registration statement at the time such
part of each such registration statement became effective but excluding the Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939, each as amended at the time such part of each such registration statement
became effective, are hereinafter collectively called the "Registration
Statement"; (vi) the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, is hereinafter called the "Prospectus"; (vii) any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; (viii) any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein by reference;
(ix) any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement; and (x) any reference to the Prospectus as amended or supplemented
shall be deemed to refer to and include the Prospectus as amended or
supplemented (including by the applicable Pricing Supplement filed in accordance
with Section 4(a) hereof) in relation to Securities to be sold pursuant to this
Agreement, in the form filed or transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
3
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus as amended or
supplemented, or to that part of the Registration Statement that constitutes the
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of the Trustee;
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Missouri; and
has the requisite corporate power and authority to execute and deliver the
Securities and this Agreement, to perform its obligations hereunder and
thereunder, and to own its properties and conduct its business as described in
the Prospectus.
(e) The issuance and sale of the Securities in an aggregate
principal amount not in excess of an aggregate principal amount which shall not
exceed $500,000,000 (or the equivalent in a foreign currency or currencies), has
been duly authorized by the Company and, when the Securities have been duly
executed by the Company and authenticated and delivered by the Trustee, and
payment therefor has been received by or on behalf of the Company, such
Securities will constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(f) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles and except that no
representation or warranty is made with respect to the enforceability of Section
7 hereof.
(g) The Company and its subsidiaries have not sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which is material to the Company and its subsidiaries taken as a whole otherwise
than as set forth or contemplated in the
4
Prospectus; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
decrease in the capital stock of the Company or material increase in
consolidated long-term debt (as such terms are defined in accordance with
generally accepted accounting principles) of the Company and its subsidiaries or
any material adverse change, or any development that the Company believes would
be reasonably likely to result in a material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(h) (i) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not (A) result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject or (B) result in any violation
of (1) the provisions of the Articles of Incorporation, as amended, or the By-
laws of the Company or (2) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its properties; and (ii) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required on the part of the Company for the solicitation of offers to
purchase Securities, the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under the Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by such Agent of offers to
purchase Securities from the Company and with purchases of Securities by such
Agent as principal, as the case may be, in each case in the manner contemplated
hereby;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its subsidiaries is
subject, which would individually or in the aggregate reasonably be expected to
have a material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(j) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of Securities that
will have been issued and sold by the Company hereunder or under any Terms
Agreement and
5
of any debt securities of the Company (other than such Securities) that will
have been issued and sold pursuant to the Registration Statement will not exceed
the amount of debt securities registered under the Registration Statement; and
(k) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
2. (a) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit and receive offers to purchase the Securities from
the Company upon the terms and conditions set forth in the Prospectus as amended
or supplemented from time to time. The Company reserves the right to offer,
solicit offers and sell Securities directly on its own behalf to any person, to
sell Securities through others (provided that any other agent or broker dealer
will execute an agreement with the Company that includes terms and conditions
that are substantially identical to the terms and conditions included in this
Agreement), and after not less than 5 business days prior written notice to the
Agents, to designate and select additional agents to become party to this
Agreement. In the case of any sale not resulting from a solicitation made by any
Agent, no commission will be payable to the Agents with respect to such sale. In
no event shall any offers, solicitation of offers or sales of debt securities by
the Company result in (i) any violation of applicable federal or state
securities laws (and, if requested by any such Agent, the Company shall deliver
an opinion of counsel in a form reasonably satisfactory to such Agent, to such
effect, provided, that such counsel need not express any opinion as to accuracy
or completeness of disclosure in any other such sale by the Company) or (ii) any
Agent's inability to re-sell any Securities that it has purchased as a principal
pursuant to this Agreement or any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedures attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedures"). The provisions of
the Administrative Procedures shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedures. The
Company will furnish to the Trustee a copy of the Administrative Procedures as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents orally (with confirmation in writing) or in writing to suspend at any
time, for any period of time or permanently, the solicitation of offers to
purchase the Securities. Upon receipt of such instructions from the Company, the
Agents will forthwith suspend
6
solicitation of offers to purchase Securities from the Company until such time
as the Company has advised the Agents that such solicitation may be resumed.
During such period, the Company shall not be required to comply with the
provisions of Sections 4(h), 4(i), 4(j) and 4(k). Upon advising the Agents that
such solicitation may be resumed, however, the Company shall be required to
comply with the provisions of Sections 4(h), 4(i), 4(j) and 4(k) prior to
resumption of such solicitations. In addition, any failure by the Company to
comply with its obligations hereunder, including without limitation its
obligations to deliver the documents required by Sections 4(h), 4(i), 4(j) and
4(k), shall automatically terminate the Agents' obligations hereunder, including
without limitation its obligations to solicit offers to purchase the Securities
hereunder as agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the applicable percentage
of the principal amount of such Security sold as set forth in Schedule A hereto.
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and such
Agent otherwise agree) a Terms Agreement which will provide for the sale of such
Securities to, and the purchase thereof by, such Agent; a Terms Agreement may
also specify certain provisions relating to the re-offering of such Securities
by such Agent; the commitment of any Agent to purchase Securities as principal,
whether pursuant to any Terms Agreement or otherwise, shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth; each Terms Agreement shall specify the principal amount of Securities to
be purchased by any Agent pursuant thereto, the price to be paid to the Company
for such Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the re-offering of the
Securities and the time and date and place of delivery of and payment for such
Securities; and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related thereto at the
time of sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedures. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
7
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedures, is referred to herein as a "Time
of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on the
Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, New York, New York, at 11:00
a.m., New York City time, on the date of this Agreement, which date and time of
such delivery may be postponed by agreement between the Agents and the Company
but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date without affording
each Agent a reasonable opportunity to review and comment thereon or (B) after
the date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery that is
disapproved by any Agent party to such Terms Agreement or so purchasing as
principal promptly after reasonable notice thereof; provided, however, that (1)
the foregoing requirement shall not apply to any of the Company's filings with
the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, copies of which filings the Company will cause to be
delivered to the Agents promptly after being transmitted for filing with the
Commission and (2) any Prospectus supplement or Pricing Supplement that merely
sets forth the terms or a description of particular Securities shall only be
reviewed and approved by the Agent or Agents offering such Securities; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such Securities
in a form previously approved by such Agent and to file such Pricing Supplement
pursuant to Rule 424(b)(3) under the Act not later than the close of business of
the Commission on the fifth business day after the date on which such Pricing
Supplement is first used (or the business day immediately preceding the Time of
Delivery if earlier); (iii) to make no amendment or supplement to the
Registration Statement or Prospectus, other than any Pricing Supplement, at any
time prior to having afforded each Agent a reasonable opportunity to review and
comment thereon provided, however, that (1) the foregoing requirement shall not
apply to any of the Company's filings with the Commission required to be filed
pursuant to Section
8
13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which filings the
Company will cause to be delivered to the Agents promptly after being
transmitted for filing with the Commission and (2) any Prospectus supplement or
Pricing Supplement that merely sets forth the terms or a description of
particular Securities shall only be reviewed and approved by the Agent or Agents
offering such Securities; (iv) to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities, and during such same period to advise such
Agent, promptly after the Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has become effective
or any supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by such
Agent) has been filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the event of the issuance
of any such stop order or of any such order preventing or suspending the use of
any such prospectus or suspending any such qualification, to promptly use its
reasonable best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions in the United States as such Agent may
request (and in such foreign jurisdictions as the Company and the Agents may
mutually agree) and to comply with such laws so as to permit the continuance of
sales and dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or as a dealer in securities or to file a general consent to service of process
or subject itself to taxation in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time amended
or supplemented, other than any Pricing Supplement (except as provided in the
Administrative Procedures), in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as principal) and
if at such time any event has occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements
9
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it is
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify such Agent and request such Agent, in its capacity as
agent of the Company, to suspend solicitation of offers to purchase Securities
from the Company (and, if so notified, such Agent shall forthwith cease such
solicitations); and if the Company decides to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, to so
advise such Agent promptly by telephone (with confirmation in writing) and,
subject to the second proviso below, to prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such statement
or omission or effect such compliance; provided, however, that if during such
same period such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver a
prospectus in respect of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an amendment or supplement;
provided, further, however, that notwithstanding any other provision of this
Agreement, that if to do so would result in the Company disclosing information
that the Company is required by law, contract or otherwise to hold in confidence
or which the Company believes is in the best interests of its shareholders to
hold in confidence, the Company shall not be required to prepare and file such
amendment or supplement, provided, further that in any such event such Agent
shall have the right to require the Company to repurchase such Securities from
such Agent at the price such Securities were sold to such Agent by the Company,
plus accrued interest, less the Agent's commission to the extent the Agent
actually received a commission as an alternative to purchasing such Securities
at a discount from the Company pursuant to this Agreement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to the Company's shareholders, and deliver to such Agent (i) as soon
as they are available, copies of any reports and financial statements furnished
to or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company as
such Agent may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the
10
Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and continuing
to and including the termination of the trading restrictions for the Securities
purchased thereunder, as notified to the Company by such Agent, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company that both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities, without the prior written consent of
such Agent; provided, that in no event shall borrowings under the Company's
revolving credit agreements and lines of credit or issuances of commercial paper
be deemed to be substantially similar to the Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the Company
of a Terms Agreement with such Agent, shall be deemed to be an affirmation to
such Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties relating to the Registration Statement and
Prospectus shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus is amended or supplemented, including each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than by (i) an amendment relating solely to
securities other than the Securities, (ii) a filing pursuant to item 5 of
Form 8-K, (iii) the Company's quarterly reports filed on Form 10-Q and (iv) a
Pricing Supplement; unless in each case, in the reasonable judgment of the
Agents, the Agents request such documents to be delivered), and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion or
opinions by Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish to such counsel such papers and information as they may
reasonably request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus is
amended or supplemented, including each time a document filed under the Act or
the
11
Exchange Act is incorporated by reference into the Prospectus (other than by (i)
an amendment relating solely to securities other than the Securities, (ii) a
filing pursuant to item 5 of Form 8-K, (iii) the Company's quarterly reports
filed on Form 10-Q and (iv) a Pricing Supplement; unless in each case, in the
reasonable judgment of the Agents, the Agents request such documents to be
delivered) and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of
an opinion under this Section 4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a written opinion of the Company's General
Counsel, or other counsel for the Company reasonably satisfactory to such Agent,
dated the date of such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form reasonably satisfactory to
such Agent, to the effect that such Agent may rely on the opinion of such
counsel referred to in Section 6(c) hereof that was last furnished to such Agent
to the same extent as though it were dated the date of such letter authorizing
reliance (except that the opinion or opinions in such last opinion relating to
the Registration Statement and the Prospectus shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such opinion, an opinion of the same tenor as the opinion
of such counsel referred to in Section 6(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date;
(j) That each time the Registration Statement or the Prospectus is
amended or supplemented, including each time that a document filed under the Act
or the Exchange Act is incorporated by reference into the Prospectus, in either
case to set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records (other than by
(i) an amendment relating solely to securities other than the Securities, (ii) a
filing pursuant to item 5 of Form 8-K and (iii) a Pricing Supplement; unless in
each case, in the reasonable judgment of the Agents, the Agents request such
documents to be delivered), and each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall cause
the independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement to furnish forthwith such Agent a
letter, dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form reasonably
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 6(d) hereof but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company, to the
extent such financial statements and other information are available as of a
date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as
12
though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus is
amended or supplemented, including each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus (other than by
(i) an amendment relating solely to securities other than the Securities, (ii) a
filing pursuant to item 5 of Form 8-K, (iii) the Company's quarterly reports
filed on Form 10-Q and (iv) a Pricing Supplement; unless in each case, in the
reasonable judgment of the Agents, the Agents request such documents to be
delivered) and each time the Company sells Securities to such Agent as principal
and the applicable Terms Agreement specifies the delivery of a certificate under
this Section 4(k) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent a certificate, dated the date of such supplement, amendment,
incorporation or Time of Delivery relating to such sale, as the case may be, in
such form and executed by such officers of the Company as shall be reasonably
satisfactory to such Agent, to the effect that the statements contained in the
certificates referred to in Section 6(i) hereof that 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 relating to the Registration Statement and the
Prospectus shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
certificate, certificates of the same tenor as the certificates referred to in
said Section 6(i) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by such Agent
the right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedures, any condition
set forth in Section 6(a), 6(e), 6(f) or 6(g) hereof has not been satisfied (it
being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments of
an Agent with respect to certain matters referred to in such Sections 6(e) and
6(g), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(e) and 6(g) on behalf of
any such person).
5. The Company covenants and agrees with each Agent that the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the reasonable fees, disbursements and expenses of counsel for the
Agents in connection with the establishment of the
13
program contemplated hereby, any opinions to be rendered by such counsel
hereunder and under any Terms Agreement and the transactions contemplated
hereunder and under any Terms Agreement; (iii) the cost of printing, producing
or reproducing this Agreement, any Terms Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the reasonable fees and
disbursements of counsel for the Agents in connection with such qualification
and in connection with the Blue Sky and legal investment surveys; (v) any fees
charged by securities rating services for rating the Securities; (vi) any filing
fees incident to, and the reasonable fees and disbursements of counsel for the
Agents in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vii) the
cost of preparing the Securities; (viii) the fees and expenses of any Trustee
and any agent of any Trustee and any transfer or paying agent of the Company and
the reasonable fees and disbursements of counsel for any Trustee or such agent
in connection with any Indenture and the Securities; (ix) any advertising
expenses connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved in advance in
writing by the Company; and (x) all other costs and expenses incident to the
performance of its obligations hereunder that are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be (except that such
representations and warranties relating to the Registration Statement and the
Prospectus shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date), the condition that prior
to such Solicitation Time or Time of Delivery, as the case may be, the Company
shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the
14
Act and in accordance with Section 4(a) hereof; (ii) no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the Agents,
shall have furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, in form reasonably acceptable to such Agent, and (ii) if and
to the extent requested by such Agent, with respect to each applicable date
referred to in Section 4(h) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, an opinion or opinions, dated such
applicable date, to the effect that such Agent may rely on the opinion or
opinions that were last furnished to such Agent pursuant to this Section 6(b) to
the same extent as though it or they were dated the date of such letter
authorizing reliance (except that any such later opinion or opinions relating to
the Registration Statement and the Prospectus shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in clause (i)
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) The Company's General Counsel, or other counsel for the Company
reasonably satisfactory to such Agent, shall have furnished to such Agent their
written opinions, dated the Commencement Date and each applicable date referred
to in Section 4(i) hereof that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be (except that any such later opinion or opinions
relating to the Registration Statement and the Prospectus shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date), in form and substance reasonably satisfactory to
such Agent, substantially to the effect that
(i) the Company is a corporation validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own its
properties and conduct its business in all material respects as described in the
Prospectus;
(ii) each subsidiary constituting 10% or more of the
consolidated total assets of the Company as of such date (each such subsidiary
being hereinafter referred to as a "Significant Subsidiary") is a corporation
validly existing and in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and (except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, to such
15
counsel's knowledge free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that you and they are justified in relying
upon such opinions and certificates);
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus as of the date or dates indicated herein; the Securities
conform in all material respects to the description thereof contained in the
Prospectus; and, if the Securities are to be listed on any securities exchange,
authorization therefor has been given, subject to official notice of issuance
and evidence of satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting documents with
respect to the Securities with such securities exchange and such counsel has no
reason to believe that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(iv) the Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
(v) any series of Securities established on or prior to the date of
such opinion has been duly authorized and established in conformity with the
Indenture, and, when the terms of a particular Security and of its issuance and
sale have been duly authorized and established by all necessary corporate action
in conformity with the Indenture, and such Security has been duly completed,
executed, authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement, such Security will
constitute a legal, valid and binding obligation of the Company entitled to the
benefits of the Indenture and enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles, it being understood that such counsel may (a)
assume that at the time of the issuance, sale and delivery of each Security the
authorization of such series has not been modified or rescinded and there has
not occurred any change in law affecting the validity, legally binding character
or enforceability of such Security and (b) state that as of the date of such
opinion a judgment for money in an action based on Securities denominated in
foreign currencies or currency units in a federal or state court in the United
States ordinarily would be enforced in the United States only in United States
dollars, and that the date used to determine the rate of conversion of the
foreign currency or currency unit in which a particular Security is denominated
into United States dollars will depend upon various factors, including which
court renders the judgment;
16
(vi) to the best knowledge of such counsel, there is no action, suit
or proceeding pending or overtly threatened before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement that is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, that is
not described or filed as required; and the statements included or incorporated
in the Prospectus describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters to the extent
required by law;
(vii) such counsel has been advised by the Commission's staff that
the Registration Statement has become effective under the Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement and the Prospectus (other than the
financial statements, related financial statement schedules and other financial
and statistical information and written information relating to and furnished by
the Agents contained therein or omitted therefrom, and except for the part of
the Registration Statement that constitutes the Form T-1 Statement of
Eligibility and Qualification under the Trust Indenture Act of 1939 of the
Trustee, as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act, the Exchange
Act and the Trust Indenture Act and the respective rules thereunder;
(viii) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any federal or
Missouri court or governmental agency or body is required to be obtained by the
Company for the consummation of the transactions contemplated herein or in any
applicable Terms Agreement, except such as have been obtained under the Act and
the Trust Indenture Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the solicitation by the Agents to purchase
the Securities and such other approvals (specified in such opinion) as have been
obtained;
(x) neither the execution and delivery by the Company of the
Indenture, the issue and sale of the Securities, nor the consummation by the
Company of any other of the transactions herein contemplated nor the fulfillment
by the Company of the terms hereof or of any applicable Terms Agreement will
result in a breach or violation of, or constitute a default under (A) the
articles of incorporation or by-laws of the Company, (B) the terms of any
indenture or other material agreement or instrument known to such counsel and to
which the Company or any of its Significant Subsidiaries is
17
a party or bound, (C) any judgment, order or decree known to such counsel to be
specifically applicable to the Company or any of its Significant Subsidiaries of
any federal or Missouri court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any of
its Significant Subsidiaries or (D) any provision of federal or Missouri statute
or governmental regulation applicable to the Company;
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; and
(xi) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Such opinion shall also state that, although such counsel does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, nothing has come to such
counsel's attention that causes such counsel to believe that at the Effective
Date the Registration Statement (other than the financial statements, related
financial statement schedules and other financial and statistical information
and written information relating to and furnished by the Agents contained
therein or omitted therefrom, and except for the part of the Registration
Statement that constitutes the Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of the Trustee, as to which such
counsel need express no opinion) contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus (other than the financial statements, related schedules and other
financial and statistical information and written information furnished by the
Agents contained therein or omitted therefrom as to which such counsel need
express no opinion) includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Missouri or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the Agents and (B)
as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
(d) Not later than 11:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Prospectus
18
as amended and supplemented to such date shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date, as the case may be,
in form and substance reasonably satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(e) (i) The Company and its subsidiaries shall not have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which is material to the Company and its subsidiaries taken as a whole otherwise
than as set forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery and (ii) since the respective dates
as of which information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery there shall not have been any
material decrease in the capital stock of the Company or material increase in
consolidated long-term debt (as such terms are defined in accordance with
generally accepted accounting principles) of the Company and its subsidiaries or
any change, or any development that the Company believes would be reasonably
likely to result in a material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented prior
to the date of the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of such Agent so material
and adverse as to make it impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase Securities from the Company or
the purchase by such Agent of Securities from the Company as principal, as the
case may be, on the terms and in the manner contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the
19
Company's securities on the New York Stock Exchange; or (iii) a general
moratorium on commercial banking activities in New York declared by either
federal, New York state or Missouri state authorities; or (iv) the outbreak or
material escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
on financial markets of any such event specified in the Clause (iv) in the
judgment of such Agent makes it impracticable or inadvisable to proceed with the
purchase of the Securities from the Company as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the terms and in
the manner contemplated in the Prospectus;
(h) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a suspension or
material limitation in foreign exchange trading in such currency, currencies or
composite currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of hostilities
involving, the occurrence of any material adverse change in the existing
financial, political or economic conditions of, or the declaration of war or a
national emergency by, the country or countries issuing such currency,
currencies or composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries issuing such
currency, currencies or composite currency if the effect on financial markets of
any such event specified in this paragraph in the judgment of such Agent makes
it impracticable or inadvisable to proceed with the purchase of the Securities
from the Company as principal pursuant to the applicable Terms Agreement or
otherwise, as the case may be, on the terms and in the manner contemplated in
the Prospectus as amended and supplemented to such date; and
(i) The Company shall have furnished or caused to be furnished to
such Agent a certificate of an officer of the Company dated the Commencement
Date and each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in such
form and executed by such officers of the Company as shall be reasonably
satisfactory to such Agent, as to the accuracy of the representations and
warranties of the Company herein at and as of the Commencement Date or such
applicable date, as the case may be (except that the statements relating to the
Registration Statement and the Prospectus shall relate to the Registration
Statement and the Prospectus as amended and supplemented to such date), as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such applicable date, as the
case may be, as to the following matters and as to such other matters as such
Agent may reasonably request:
(a) With respect to any Securities sold at or prior to the Solicitation
Time or Time of Delivery, as the case may be, (i) the Prospectus as amended
or supplemented (including the Pricing Supplement) with respect to such
Securities
20
has been filed with the Commission pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4(a) of the
Agreement; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission; and (iii) all requests
for additional information on the part of the Commission have been complied
with;
(b) (i) The Company and its subsidiaries have not sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which is material to the Company and its subsidiaries taken as a
whole otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of Delivery
and (ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant Time
of Delivery there has not been any material decrease in the capital stock
of the Company or material increase in consolidated long-term debt (as such
terms are defined in accordance with generally accepted accounting
principles) of the Company and its subsidiaries or any material adverse
change, or any development that the Company believes would be reasonably
likely to result in a material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery.
7. (a) The Company will indemnify and hold harmless each Agent against any
losses, claims, damages or liabilities, joint or several, to which such Agent
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such action or claim as
21
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, (i) in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use
therein or (ii) that is corrected in any subsequent amendment or supplement to
such Registration Statement or Prospectus, provided that the Company has
performed each of its obligations pursuant to Section 4 hereof in respect of
such amendment or supplement and, to the extent that a prospectus relating to
the Securities was required to be delivered by such Agent under the Act, if such
Agent, having been furnished by or on behalf of the Company with copies of the
Prospectus as subsequently so amended or supplemented, thereafter fails to
deliver such subsequently amended or supplemented Prospectus prior to or
concurrently with the delivery of confirmation of the sale of the Securities to
the person asserting such loss, claim, damage or liability.
(b) Each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
shall not relieve the indemnifying party from liability under subsection (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) shall not relieve it from any
22
liability that it may have to any indemnified party otherwise than under such
subsection. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the offering of
the Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
each Agent on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and each Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the
sale of Securities to which such loss, claim, damage or liability relates
(before deducting expenses) received by the Company bear to the total
commissions or discounts received by such Agent in respect thereof (before
deducting expenses). The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
23
misleading relates to information supplied by the Company on the one hand or by
any Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if all Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), an Agent
shall not be required to contribute any amount in excess of the amount by which
the total public offering price at which the Securities purchased by or through
it were sold to which such loss, claim, damage or liability relates exceeds the
amount of any damages that such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of each
of the Agents under this subsection (d) to contribute are several in proportion
to the respective purchases made by or through it to which such loss, claim,
damage or liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability that such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the Company
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company defaults on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
24
9. The respective indemnities, agreements, representations, warranties and
other statements by any Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. This Agreement may be suspended or terminated at any time by the Company as
to any Agent or by any Agent as to such Agent upon the giving of oral (confirmed
in writing) or written notice of such suspension or termination to such Agent or
the Company, as the case may be; provided, that in the event of such suspension
or termination with respect to any Agent, (i) this Agreement shall remain in
full force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (ii) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party that have
previously accrued or that relate to Securities that are already issued, agreed
to be issued or the subject of a pending offer at the time of such suspension or
termination and (iii) in any event, this Agreement shall remain in full force
and effect insofar as the fourth paragraph of Section 2(a), and Sections 4(d),
4(e)(i), 5, 7, 8 and 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the Administrative
Procedures, all statements, requests, notices and advices hereunder shall be in
writing, or by telephone if promptly confirmed in writing, and if to Bear,
Xxxxxxx & Co. Inc. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Facsimile Transmission No. (000) 000-0000, Attention: Medium Term Note
Department, and if to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Facsimile Transmission No. (000) 000-0000, Attention: Medium Term Note
Desk and if to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile Transmission No. (000) 000-0000 Attention: Medium Term Note
Department; and if to the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to No. 0 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Treasurer (with copies to the Company's General Counsel, Facsimile
Transmission No. (000) 000-0000.
12. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Company, and to the extent provided
in Sections 7, 8 and 9 hereof, the officers and directors of the Company and any
person who controls any Agent or the Company, and their respective personal
representatives and successors, and no other person shall acquire or have any
right under or by virtue of this Agreement or any Terms Agreement. No purchaser
of any of the Securities through or from any Agent hereunder shall be deemed a
successor or assign by reason merely of such purchase.
25
13. Time shall be of the essence in this Agreement and any Terms Agreement. As
used herein, the term "business day" shall mean any day other than a Saturday or
Sunday, or any other day on which banks in The City of New York, are generally
required or authorized by law or executive order to close (and, with respect to
LIBOR Notes, is also a London Business Day). "London Business Day" means any day
on which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
15. This Agreement and any Terms Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which
shall be an original, but all of such respective counterparts shall together
constitute one and the same instrument.
16. If at any time the Company and any of the Agents determine that the
Company will issue and sell Securities denominated in a currency other than U.S.
dollars, which other currency may include a currency unit, or with respect to
which an index is used to determine the amounts of payments of principal and any
premium and interest, the Company and any such Agent may execute and deliver a
supplement to this Agreement for the purpose of making any appropriate additions
to and modifications of the terms of this Agreement (and the Administrative
Procedures) applicable to such Securities and the offer and sale thereof.
Subject to the Company's obligations pursuant to Section 4(b) hereof, each Agent
agrees not to directly or indirectly solicit offers to purchase or offer to sell
any Security in or to persons of any foreign jurisdiction except as permitted by
applicable law.
17. 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, but without the consent
of any Agent, (i) 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, or (ii) appoint one or more firms as a dealer on
a reverse inquiry basis, whereupon such firm shall become an Agent hereunder on
the same terms and conditions as the other Agents that are parties hereto but
only to the extent and for the purpose of an individual reverse inquiry
transaction or as otherwise agreed to between the Company and such reverse
inquiry dealer. The Company shall give reasonably prompt notice to the other
Agents of each additional Agent. The additional Agent(s) shall sign any
agreement, amendment or supplement giving effect to the addition of any such
firm as an Agent under this Agreement in accordance with the provisions of
Section 17.
26
If the foregoing is in accordance with your understanding, please sign and
return to us four (4) 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.
27
Very truly yours,
XXXXXXX & XXXXX, INCORPORATED
By:________________________
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
BEAR, XXXXXXX & CO. INC.
By:______________________
Name:
Title:
CHASE SECURITIES INC.
By:______________________
Name:
Title:
_________________________
(Xxxxxxx, Xxxxx & Co.)
28
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Security equal to the principal amount of such Security multiplied by the
appropriate percentage set forth below:
Commission (percentage of
aggregate principal
Range of Maturities amount of Securities sold)
------------------------------------ ------------------------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
30 years and more .825%
A-1
ANNEX I
Terms Agreement
The following terms, to the extent applicable, shall be agreed to by the
applicable Agent and the Company in connection with each sale of Securities:
Name of Agent: _____________________
Acting as principal [_]
Acting as agent for the Company [_]
Principal Amount: $______________________
Price to Public: ___% of the principal amount, plus accrued interest, if
any, from ______
Commission (or Discount): ___% of the principal amount
Purchase Price: ____%, plus accrued interest, if any, from _________
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Date(s):
If Floating Rate Note:
Base Rate:
If LIBOR:
LIBOR Reuters Page:
LIBOR Telerate Page:
If CMT:
CMT Telerate Page:
If CD Rate:
If Federal Funds Rate:
If Treasury Rate:
If Commercial Paper Rate:
If Prime Rate:
If 00/xx/ Xxxxxxxx Cost of Funds Rate:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Initial Interest Reset Date:
Interest Reset Date(s):
Interest Payment Date(s):
Interest Determination Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
A-I-1
If Original Issue Discount Note, terms:
If Redeemable:
Redemption Commencement Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Repayment Provisions, if any:
Original Issue Date:
Stated Maturity:
Settlement Date and Time:
Other Settlement Terms:
Additional Terms:
Also, in connection with the purchase of Securities by one or more Agents as
principal, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 6(i) of the Agreement.
Legal Opinions pursuant to Sections 6(b) and (c) of the Agreement.
Comfort Letter pursuant to Section 6(d) of the Agreement.
Stand-Off Agreement pursuant to Section 4(f) of the Agreement.
A-I-2
ANNEX II
Xxxxxxx & Xxxxx, Incorporated
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes, Series I
Due Nine Months or More From Date of Issue
(Dated as of November __, 2000)
Medium-Term Notes, Series I Due From Nine Months or More From Date of Issue
(the "Notes") are to be offered on a continuous basis by Xxxxxxx & Xxxxx,
Incorporated, a Missouri corporation (the "Company"), to or through Bear,
Xxxxxxx & Co. Inc., Chase Securities Inc. and Xxxxxxx, Xxxxx & Co., and any
other agent or agents appointed by the Company from time to time (each, an
"Agent" and, collectively, the "Agents"), pursuant to an Amended and Restated
U.S. Distribution Agreement, dated as of November __, 2000 (the "Agreement"), by
and among the Company and the Agents. The Agreement provides for the sale of
Notes by the Company to one or more of the Agents as principal (including for
resale to investors and other purchasers), for the sale of Notes by the Company
directly to investors (as may from time to time be agreed to by the Company and
the related Agent or Agents), in which case each such Agent will act as an agent
of the Company in soliciting purchases of Notes, and for the right of the
Company to sell Notes directly on its own behalf.
If agreed upon by the related Agent or Agents and the Company, Notes shall
be purchased by such Agent or Agents as principal. Such purchases will be made
in accordance with terms agreed upon by the related Agent or Agents and the
Company (which terms, unless otherwise agreed to, shall, to the extent
applicable, include those terms specified in Annex I to the Agreement, and be
agreed upon orally, with written confirmation prepared by such Agent or Agents
and mailed or sent by facsimile transmission to the Company). If agreed upon by
any Agent or Agents and the Company, the Agent or Agents, acting solely as agent
or agents for the Company, and not as principal, will use reasonable efforts to
solicit offers to purchase the Notes. Only those provisions in these
Administrative Procedures that are applicable to the particular role to be
performed by the related Agent or Agents shall apply to the offer and sale of
the relevant Notes.
The Notes will be issued under an Indenture, dated as of November 24, 1999,
as amended, supplemented or modified from time to time relating to the Notes
(collectively, the "Indenture"), between the Company and The Chase Manhattan
Bank ("Chase"), as trustee (the "Trustee"). The Company has filed a
Registration Statement (as defined in the Agreement) with the Securities and
Exchange Commission (the "Commission") registering the Notes. A pricing
supplement to the Prospectus (as defined in the Agreement) setting forth the
purchase price, interest rate or formula, maturity date and other terms of any
Notes (as applicable) is herein referred to as a "Pricing Supplement."
A-III-1
The Notes will either be issued (a) in book-entry form (each, a "Book-Entry
Note") and represented by one or more fully registered Notes without coupons
(each, a "Global Note") delivered to Chase, as agent for The Depository Trust
Company, New York, New York ("DTC"), and recorded in the book-entry system
maintained by DTC, or (b) in certificated form (each, a "Certificated Note")
delivered to the investor or other purchaser thereof or a person designated by
such investor or other purchaser. Except in the limited circumstances described
in the Prospectus or a Pricing Supplement, owners of beneficial interests in
Book-Entry Notes will not be entitled to physical delivery of Certificated Notes
equal in principal amount to their respective beneficial interests.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Book-Entry Notes will be issued in accordance with the procedures
set forth in Part II hereof and Certificated Notes will be issued in accordance
with the procedures set forth in Part III hereof. Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed thereto in the
Prospectus as amended and supplemented, the Indenture or the Notes, as the case
may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue date (the "Original
Issue Date"). The Original Issue Date shall
remain the same for all Notes subsequently
issued upon transfer, exchange or substitution
of an original Note regardless of their dates
of authentication.
Maturities: Each Note will mature on a date selected by the
purchaser and agreed to by the Company that is
not less than nine months nor more than fifty
years from its Original Issue Date (the "Stated
Maturity").
Currency/Denominations: Notes will be denominated in, and payments of
principal, premium, if any, and interest, if
any, in respect thereof will be made in, U.S.
dollars and the Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Registration: The Notes will be issued only in fully
registered form.
A-II-2
Base Rates Applicable to Unless otherwise provided in the applicable
Floating Rate Notes: Pricing Supplement, Floating Rate Notes will
bear interest at a rate or rates determined by
reference to the CD Rate, the Commercial Paper
Rate, the Federal Funds Rate, LIBOR, the Prime
Rate, the Treasury Rate, the CMT Rate, the
Eleventh District Cost of Funds Rate or such
other interest rate basis or formula as may be
set forth in the applicable Pricing Supplement,
or by reference to two or more such rates, as
adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating
Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the
Company on and after their respective
Redemption Commencement Dates, if any.
Redemption Commencement Dates, if any, will be
fixed at the time of sale and set forth in the
applicable Pricing Supplement and in the
applicable Note. If no Redemption Commencement
Dates are indicated with respect to a Note,
such Note will not be redeemable at the option
of the Company prior to its Stated Maturity.
The Notes will be subject to repayment at the
option of the Holders thereof in accordance
with the terms of the Notes on their respective
Optional Repayment Dates, if any. Optional
Repayment Dates, if any, will be fixed at the
time of sale and set forth in the applicable
Pricing Supplement and in the applicable Note.
If no Optional Repayment Dates are indicated
with respect to a Note, such Note will not be
repayable at the option of the Holder prior to
its Stated Maturity.
Calculation of Interest: In the case of Fixed Rate Notes, interest
(including payments for partial periods) will
be calculated and paid on the basis of a 360-
day year of twelve 30-day months.
The interest rate on each Floating Rate Note
will be calculated by reference to the
specified Base Rate or Rates plus or minus the
applicable Spread, if any, and/or multiplied by
the applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, accrued interest on each
Floating Rate Note will be calculated by
multiplying its principal amount by an accrued
interest factor. Such accrued interest factor
is computed by adding the interest factors
calculated for each day in the period for which
A-II-3
accrued interest is being calculated. Unless
otherwise provided in the applicable Pricing
Supplement, the interest factor (expressed as a
decimal calculated to seven decimal places
without rounding) for each such day is computed
by dividing the interest rate applicable to
such day by 360 if the CD Rate, Commercial
Paper Rate, Federal Funds Rate, LIBOR, Prime
Rate or Eleventh District Cost of Funds Rate is
an applicable Base Rate, or by the actual
number of days in the year if the Treasury Rate
or the CMT Rate is an applicable Base Rate. The
interest factor for Floating Rate Notes for
which the interest rate is calculated with
reference to two or more Base Rates will be
calculated in each period in the same manner as
if only the lowest, highest or average of the
applicable Base Rates applied as specified in
the applicable Pricing Supplement.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing Supplement,
interest on each Note will accrue from and
including the Original Issue Date of such Note
for the first interest period or from and
including the most recent Interest Payment Date
to which interest has been paid or duly made
available for payment for all subsequent
interest periods, to but excluding the
applicable Interest Payment Date or the Stated
Maturity, Redemption Date or Optional Repayment
Date (each Stated Maturity, Redemption Date or
Optional Repayment Date is referred to herein
as a "Maturity"). Interest on Notes will be
payable in arrears to the Holders of such Notes
as of the Regular Record Date for each Interest
Payment Date and at Maturity to the Person to
whom the principal of such Notes is payable.
If an Interest Payment Date or the Maturity
with respect to any Fixed Rate Note falls on a
day that is not a Business Day, the required
payment to be made on such day need not be made
on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day and no interest
shall accrue on such payment for the period
from and after such day to the next succeeding
Business Day. If an Interest Payment Date
(other than at Maturity) with respect to any
Floating Rate Note would otherwise fall on a
day that is not a Business Day, such Interest
Payment Date will be postponed to
A-II-4
the next succeeding Business Day and interest
will continue to accrue, except that in the
case of a LIBOR Note, if such next succeeding
Business Day falls in the next succeeding
calendar month, such Interest Payment Date will
be the immediately preceding Business Day. If
the Maturity of a Floating Rate Note falls on a
day that is not a Business Day, the required
payment need not be made on such day, but may
be made on the next succeeding Business Day as
if made on the date such payment was due, and
no interest on such payment shall accrue for
the period from and after such Maturity to the
date of such payment on the next succeeding
Business Day.
Regular Record Dates. Unless otherwise
specified in an applicable Pricing Supplement,
the Regular Record Date with respect to any
Interest Payment Date for any Note shall be the
date 15 calendar days (whether or not a
Business Day) preceding such Interest Payment
Date.
Interest Payment Dates. Interest payments will
be made at Maturity and on each Interest
Payment Date commencing with the first Interest
Payment Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued between
a Regular Record Date and an Interest Payment
Date will occur on the Interest Payment Date
following the next succeeding Regular Record
Date.
Fixed Rate Notes. Interest payments on Fixed
Rate Notes (other than Original Issue Discount
Notes) will be made semiannually on April 1 and
October 1 of each year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes will be made as specified
in the Floating Rate Note.
Acceptance and Rejection of If agreed upon by any Agent and the Company,
Offers from Solicitations as then such Agent acting solely as agent for the
Agents: Company and not as principal will solicit
purchases of the Notes. Each Agent will
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Notes solicited by such Agent on an agency
basis, other than those offers rejected by such
Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be a
breach of such Agent's agreement contained in
the Agreement. The
A-II-5
Company has the sole right to accept or reject
any proposed purchase of Notes from the
Company, in whole or in part, and any such
rejection shall not be a breach of the
Company's agreement contained in the Agreement.
Each Agent has agreed to make reasonable
efforts to assist the Company in obtaining
performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent
and accepted by the Company.
Preparation of Pricing If any offer to purchase a Note is accepted by
Supplement the Company, the Company will promptly prepare
a Pricing Supplement reflecting the terms of
such Note. Information to be included in the
Pricing Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the
date of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Presenting Agent (as
defined below);
5. whether such Notes are being sold to the
Presenting Agent as principal or to an
investor or other purchaser through the
Presenting Agent acting as agent for the
Company;
6. with respect to Notes sold to the
Presenting Agent as principal, whether such
Notes will be resold by the Presenting
Agent to investors and other purchasers at
(i) a fixed public offering price of a
specified percentage of their principal
amount or (ii) at varying prices related to
prevailing market prices at the time of
resale to be determined by the Presenting
Agent;
7. with respect to Notes sold to an investor
or other purchaser through the Presenting
Agent acting as agent for the Company,
whether such Notes will be sold at (i) 100%
of their principal amount or (ii) a
specified percentage of their principal
amount;
8. the Presenting Agent's discount or
commission;
9. net proceeds to the Company;
A-II-6
10. the information with respect to the terms
of the Notes set forth below (whether or
not the applicable Note is a Book-Entry
Note) under "Procedures for Book-Entry
Notes Settlement Procedures," items (ii),
(iii), (vii), (viii) and (ix); and
11. any other terms of the Notes material to
investors or other purchasers of the Notes
not otherwise specified in the Prospectus.
The Company shall use its reasonable best
efforts to send such Pricing Supplement by
electronic mail, telecopy or overnight express
(for delivery by the close of business on the
applicable trade date, but in no event later
than noon, New York City time, on the Business
Day next following the trade date) to the Agent
that made or presented the offer to purchase
the applicable Note (the "Presenting Agent") at
the following address:
If to Bear, Xxxxxxx & Co. Inc.:
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium Term Note Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Chase Securities Inc.:
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Medium Term Note Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Xxxxxxx, Xxxxx & Co.:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
A-II-7
Attn: Xxxxx Xxxxxxxxx
27th Floor
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will provide a
copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes or
its agent. Pursuant to Rule 434 ("Rule 434") of
the Securities Act of 1933, as amended (the
"Act"), the Pricing Supplement may be delivered
separately from the Prospectus. Outdated
Pricing Supplements (other than those retained
for files) will be destroyed.
The Company will arrange to file such Pricing
Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b)
under the Act.
Settlement: The receipt of immediately available funds by
the Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement." Offers accepted by the Company
will be settled in three Business Days, or at
such time as the purchaser, the applicable
Agent and the Company shall agree, pursuant to
the timetable for settlement set forth in Parts
II and III hereof under "Settlement Procedures"
with respect to Book-Entry Notes and
Certificated Notes, respectively (each such
date fixed for settlement is hereinafter
referred to as a "Settlement Date"). If
procedures A and B of the applicable Settlement
Procedures with respect to a particular offer
are not completed on or before the time set
forth under the "Settlement Procedures
Timetable," such offer shall not be settled
until the Business Day following the completion
of Settlement Procedures A and B or such later
date as the purchaser and the Company shall
agree.
In the event of a purchase of Notes by an Agent
as principal, appropriate settlement details
will be pursuant to the timetable for
settlement set forth in Parts II and III hereof
under "Settlement Procedures" with respect to
Book-Entry Notes and Certificated Notes,
respectively, or otherwise as agreed between
the Agent and the Company.
Procedure for Changing Rates When a decision has been reached to change the
or Other Variable Terms: interest rate or any other variable term on any
Notes
A-II-8
being sold by the Company, the Company will
promptly advise the Agents by telephone
(confirmed in writing) or facsimile
transmission and such Agents will forthwith
suspend solicitation of offers to purchase such
Notes. The Agent or Agents will telephone the
Company with recommendations as to the changed
interest rates or other variable terms. At such
time as the Company advises the Agents of the
new interest rates or other variable terms,
such Agents may resume solicitation of offers
to purchase such Notes. Until such time only
"indications of interest" may be recorded.
Immediately after acceptance by the Company of
an offer to purchase Notes at a new interest
rate or new variable term, the Company, the
Presenting Agent and Chase shall follow the
procedures set forth under the "Settlement
Procedures."
Suspension of Solicitation; The Company may instruct the Agents to suspend
Amendment or Supplement: solicitation of offers to purchase Notes at any
time by telephone (confirmed in writing) or in
writing. Each Agent receiving such instructions
will forthwith suspend solicitation of offers
to purchase Notes from the Company until such
time as the Company has advised the Agents that
solicitation of offers to purchase may be
resumed. If the Company decides to amend or
supplement the Registration Statement
(including incorporating any documents by
reference therein) or the Prospectus (other
than to change interest rates or other variable
terms with respect to the offering of the
Notes), it will promptly advise each Agent and
will furnish each Agent and counsel to the
Agents with copies of the proposed amendment or
supplement (including any document proposed to
be incorporated by reference therein but
excluding any Pricing Supplements unless
otherwise provided herein); provided, however,
that (1) the foregoing requirement shall not
apply to any of the Company's filings with the
Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended,
copies of which filings the Company will cause
to be delivered to the Agents promptly after
being transmitted for filing with the
Commission and (2) any Prospectus supplement or
Pricing Supplement that merely sets forth the
terms or a description of particular Securities
shall only be reviewed and approved by the
Agent or Agents offering such Securities. One
copy of such filed document,
A-II-9
along with a copy of the cover letter sent to
the Commission, will be delivered, mailed or
telecopied to Bear, Xxxxxxx & Co. Inc. at
Medium Term Note Department, 000 Xxxx Xxxxxx,
0/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telecopy: (000) 000-0000; to Chase Securities
Inc. at Medium Term Note Desk, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Telecopy: (212) 834-
4421 and to Xxxxxxx, Xxxxx & Co. at Credit
Department, Credit Control-Medium Term Notes,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telecopy: (000) 000-0000. For record keeping
purposes, one copy of each such amendment or
supplement shall also be delivered, mailed or
telecopied to Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.,
Telecopy: (000) 000-0000.
In the event that at the time the solicitation
of offers to purchase Notes from the Company is
suspended (other than to change interest rates
or other variable terms) there are any offers
to purchase Notes that have been accepted by
the Company that have not been settled, the
Company will promptly advise the Agents and
Chase whether such offers may be settled and
whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the
time of the suspension may be delivered in
connection with the settlement of such offers.
The Company will have the sole responsibility
for such decision and for any arrangements that
may be made in the event that the Company
determines that such offers may not be settled
or that copies of such Prospectus may not be so
delivered.
Delivery of Prospectus and A copy of the most recent Prospectus and the
Applicable Pricing applicable Pricing Supplement, which pursuant
Supplement: to Rule 434 may be delivered separately from
the Prospectus, must accompany or precede the
earlier of (a) the written confirmation of a
sale sent to an investor or other purchaser or
his agent and (b) the delivery of Notes to an
investor or other purchaser or his agent.
Authenticity of Signatures: The Agents will have no obligation or liability
to the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee
on any Note.
Documents Incorporated by The Company shall supply the Agents with an
adequate
A-II-1
Reference: supply of all documents incorporated by
reference in the Registration Statement and the
Prospectus.
Business Day: "Business Day" means, unless otherwise
specified in the applicable Pricing Supplement,
any day other than a Saturday or Sunday, or any
other day on which banks in The City of New
York, are generally required or authorized by
law or executive order to close (and, with
respect to LIBOR Notes, is also a London
Business Day). "London Business Day" means any
day on which dealings in deposits in U.S.
dollars are transacted in the London interbank
market.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Chase will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and Chase to DTC, dated November 19, 1999, and a Medium-Term
Note Certificate Agreement, dated December 2, 1988, between Chase and DTC (the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued as Book-Entry Notes
having the same Original Issue Date, interest
rate, Stated Maturity and redemption and/or
repayment terms (collectively, the "Fixed Rate
Terms") will be represented initially by a
single Global Note and all Floating Rate Notes
issued as Book-Entry Notes having the same
Original Issue Date, Base Rate (which may be
the Commercial Paper Rate, the Treasury Rate,
LIBOR, the CD Rate, the Federal Funds Rate, the
Prime Rate, CMT Rate or Eleventh District Cost
of Funds Rate or any other rate set forth in
the applicable Pricing Supplement by the
Company), Initial Interest Rate, Index
Maturity, Spread or Spread Multiplier, if any,
Minimum Interest Rate, if any, Maximum Interest
Rate, if any, Stated Maturity, redemption
and/or repayment terms, if any, Initial
Interest Reset Date, Interest Reset Date(s) and
Interest Determination Date(s) (collectively,
the "Floating Rate Terms") will be represented
initially by a single Global Note.
A-II-1
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's (the "CUSIP Service
Bureau") for the reservation of one series of
CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which have been
reserved for and relating to Book-Entry Notes
and the Company has delivered to Chase and DTC
such list of such CUSIP numbers. The Company
will assign CUSIP numbers to Book-Entry Notes
as described below under Settlement Procedure
B. DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Company has assigned to Book-Entry Notes. Chase
will notify the Company at any time when fewer
than 100 of the reserved CUSIP numbers remain
unassigned to Book-Entry Notes, and, if it
deems necessary, the Company will reserve
additional CUSIP numbers for assignment to
Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company will
deliver a list of such additional numbers to
Chase and DTC. Book-Entry Notes having an
aggregate principal amount in excess of
$400,000,000 and otherwise required to be
represented by the same Global Note will
instead be represented by two or more Global
Notes that shall all be assigned the same CUSIP
number.
Registration: Each Global Note will be registered in the name
of Cede & Co., as nominee for DTC, on the
register maintained by Chase under the
Indenture. The beneficial owner of a Book-Entry
Note (i.e., an owner of a beneficial interest
in a Global 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 for such
beneficial 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 Book-Entry
Note in the account of such Participants. The
ownership interest of such beneficial owner in
such Book-Entry Note will be recorded through
the records of such Participants or through the
separate records of
A-II-1
such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial interests in a Global
Note will be accomplished 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
Global Note.
Exchanges: Chase may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying
(a) the CUSIP numbers of two or more Global
Notes outstanding on such date that represent
Book-Entry Notes having the same Fixed Rate
Terms or Floating Rate Terms, as the case may
be (but not the same Original Issue Dates), and
for which interest has been paid to the same
date; (b) a date, occurring at least 30 days
after such written notice is delivered and at
least 30 days before the next Interest Payment
Date for the related Book-Entry Notes, on which
such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new
CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
Participants (including Chase) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, Chase will deliver to
the CUSIP Service Bureau 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 Notes to
be exchanged will no longer be valid. On the
specified exchange date, Chase will exchange
such Global Notes for a single Global Note
bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if
the Global Notes to be exchanged exceed
$400,000,000 in aggregate principal amount, one
replacement Global Note will be authenticated
and issued to represent $400,000,000 in
aggregate principal amount of the exchanged
Global Notes and an additional Global Note or
Notes will be authenticated and issued to
represent any remaining principal amount of
such Global Notes (see "Denominations" below).
A-II-1
Denominations: Book-Entry Notes will be issued in
denominations of $1,000 and integral multiples
in excess thereof of $1,000 unless otherwise
set forth in the applicable Prospectus
supplement. Global Notes will be denominated in
principal amounts not in excess of
$400,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess
of $400,000,000 would, but for the preceding
sentence, be represented by a single Global
Note, then one Global Note will be issued to
represent $400,000,000 principal amount of such
Book-Entry Note or Notes and an additional
Global Note or Notes will be issued to
represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case,
each of the Global Notes representing such
Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Payments of Principal, Payments of Interest Only. Promptly after each
Premium, if any, and Interest: Regular Record Date, Chase will deliver to the
Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid
on each Book-Entry Note on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with Maturity) and the
total of such amounts (to the extent then
ascertainable). DTC will confirm the amount
payable on each Book-Entry Note on such
Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's. On
such Interest Payment Date, the Company will
pay to Chase in immediately available funds,
and Chase in turn will pay to DTC, such total
amount of interest due (other than at
Maturity), at the times and in the manner set
forth below under "Manner of Payment."
Notice of Interest Rates. Promptly after each
Interest Determination Date for Floating Rate
Notes issued as Book-Entry Notes, the
Calculation Agent will notify each of Xxxxx'x
Investors Service, Inc. and Standard & Poor's
of the interest rates determined as of such
Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, Chase will deliver
to the Company and DTC a written list of
principal, interest (to the extent then
ascertainable) and premium, if any, to be paid
on each Book-Entry Note maturing or otherwise
becoming due in the following month. Chase, the
Company and DTC will confirm the amounts of
such
A-II-1
principal, premium and interest payments with
respect to a Book-Entry Note on or about the
fifth Business Day preceding the Maturity of
such Book-Entry Note. At such Maturity, the
Company will pay to Chase in immediately
available funds, and Chase in turn will pay to
DTC, the principal amount of such Note,
together with interest and premium, if any, due
at such Maturity, at the times and in the
manner set forth below under "Manner of
Payment." Promptly after payment to DTC of the
principal, interest and premium, if any, due at
the Maturity of such Book-Entry Note, the
Trustee will cancel the Global Note
representing such Book-Entry Note and deliver
it to the Company with an appropriate debit
advice. On the first Business Day of each
month, the Trustee will deliver to the Company
a written statement indicating the total
principal amount of outstanding Book-Entry
Notes as of the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Book-Entry Notes on any Interest Payment Date
or at Maturity shall be paid by the Company to
Chase in funds available for use by Chase no
later than noon, New York City time, on such
date. The Company will make such payment on
such Book-Entry Notes by instructing Chase to
withdraw funds from an account maintained by
the Company at Chase or by making such payment
to an account specified by Chase. The Company
will confirm such instructions in writing to
Chase. As soon as possible thereafter, Chase
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 interest,
principal and premium, if any, due on a Book-
Entry Note on such date. Thereafter on 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 such
Book-Entry Notes are recorded in the book-entry
system maintained by DTC. Neither the Company
nor Chase shall have any responsibility or
liability for the payment by DTC of the
principal of, premium, if any, or interest on,
the Book-Entry Notes to such
A-II-1
Participants.
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 and materials directly to the
beneficial owner of such Book-Entry Note.
Settlement Procedures: Settlement Procedures with regard to each Book-
Entry Note sold by an Agent, as agent of the
Company, or purchased by an Agent, as
principal, will be as follows:
A. The Presenting Agent will advise the
Company by telephone, confirmed by
facsimile, of the following settlement
information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount.
3. Fixed Rate Notes:
(a) interest rate;
(b) interest payment dates; and
(c) whether such Fixed Rate Note is being
issued as an Original Issue Discount Note
and, if so, the terms thereof.
(d) whether such Fixed Rate Note is being
issued as an amortizing note and, if so,
the amortization schedule.
Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) index maturity;
(i) calculation agent;
(j) maximum interest rate, if any;
A-II-1
(k) minimum interest rate, if any;
(l) calculation date;
(m) interest determination dates; and
(n) whether such Floating Rate Note is being
issued as an Original Issue Discount Note
and, if so, the terms thereof.
4. price to public of such Book-Entry Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Presenting Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity.
8. Redemption provisions, if any, including:
Redemption Commencement Date, Initial
Redemption Percentage and Annual
Redemption Percentage Reduction.
9. Optional Repayment Date(s) and repayment
provisions, if any.
10. Net proceeds to the Company.
11. Presenting Agent's discount or commission
(determined in accordance with Section
2(a) of the Agreement).
12. Name of Presenting Agent (and whether such
Note is being sold to the Presenting Agent
as principal or to an investor or other
purchaser through the Presenting Agent
acting as agent for the Company).
13. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. The Company will assign a CUSIP number to
the Global Note representing such Book-
Entry Note and then advise Chase by
facsimile transmission or other electronic
transmission of the above settlement
information received from the Presenting
Agent, such CUSIP number and the name of
the Presenting Agent.
X. Xxxxx will communicate to DTC and the
Presenting Agent through DTC's Participant
Terminal System, a pending deposit message
A-II-1
specifying the following settlement
information:
1. The information set forth in Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of
Chase and the Presenting Agent.
3. Identification of the Global Note as a
Fixed Rate Note or Floating Rate Note.
4. Initial Interest Payment Date for such
Global Note, number of days by which such
date succeeds the related record date for
DTC purposes (or, in the case of Floating
Rate Notes which reset daily or weekly,
the date five calendar days preceding the
Interest Payment Date) and, if then
calculable, the amount of interest payable
on such Interest Payment Date (which
amount shall have been confirmed by the
Trustee).
5. CUSIP number of the Global Note
representing such Book-Entry Note.
6. Whether such Global Note represents any
other Book-Entry Notes.
7. The Company or Chase will advise the
Presenting Agent by telephone of the CUSIP
number of the Global Note representing
such Book-Entry Note.
8. Whether such Global Note is an amortizing
note (by an appropriate notation) in the
comments field of DTC's Participant
Terminal System.
DTC will arrange for each pending deposit
message described above to be transmitted to
Standard & Poor's, which will use the
information in the message to include certain
terms of the related Book-Entry Note in the
appropriate daily bond report published by
Standard & Poor's.
D. The Company will complete and deliver to
the Trustee a Global Note representing such
Book-Entry Note in a form that has been
approved by authorized officers of the
Company pursuant to the Indenture, the
Agents and the Trustee.
E. The Trustee will authenticate the Global
Note representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the
A-II-1
participant account of the Trustee
maintained by DTC.
X. Xxxxx will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Book-
Entry Note to Chase's participant account
and credit such Book-Entry Note to the
participant account of the Presenting Agent
maintained by DTC and (ii) to debit the
settlement account of the Presenting Agent
and credit the settlement account of Chase
maintained by DTC, in an amount equal to
the price of such Book-Entry Note less such
Presenting Agent's discount or commission.
Any entry of such a deliver order shall be
deemed to constitute a representation and
warranty by Chase to DTC that (i) the
Global Note representing such Book-Entry
Note has been issued and authenticated and
(ii) Chase is holding such Global Note
pursuant to the Certificate Agreement.
H. In the case of Book-Entry Notes sold
through the Presenting Agent, as agent, the
Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such
Book-Entry Note to the Presenting Agent's
participant account and credit such Book-
Entry Note to the participant account of
the Participants maintained by DTC and (ii)
to debit the settlement accounts of such
Participants and credit the settlement
account of the Presenting Agent maintained
by DTC in an amount equal to the initial
public offering price of such Book-Entry
Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures G and H will be settled in
accordance with SDFS operating procedures
in effect on the Settlement Date.
J. Upon receipt of such funds, Chase will
credit to an account of the Company
maintained at Chase or pay to an account
otherwise specified by the Company funds
available for immediate use in the amount
transferred to Chase in accordance with
Settlement Procedure X.
X. Xxxxx will send a copy of the Global Note
by first
A-II-1
class mail to the Company together with a
statement setting forth the total principal
amount of Notes of each series that have
been issued under the Indenture (whether or
not Outstanding) as of the related
Settlement Date, the principal amount of
Notes Outstanding as of the related
Settlement Date after giving effect to such
transaction and all other offers to
purchase Notes of which the Company has
advised Chase but that have not yet been
settled.
L. In the case of Book-Entry Notes sold
through the Presenting Agent, as agent, the
Presenting Agent will confirm the purchase
of such Book-Entry Note to the investor or
other purchaser either by transmitting to
the Participant with respect to such Book-
Entry Note a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures For offers to purchase Book-Entry Notes
Timetable: accepted by the Company, Settlement Procedures
"A" through "L" set forth above shall be
completed as soon as possible but not later
than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
----------- -----------------------------------
A 11:00 a.m. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or
within one hour following the trade
C No later than the close of business
on the trade date
D 3:00 p.m. on the Business Day
before the Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:00 p.m. on Settlement Date
X-X 5:00 p.m. on Settlement Date
A-II-2
If a sale is to be settled more than one
Business Day after the trade date, Settlement
Procedures A, B, and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such
trade date. In connection with a sale that is
to be settled more than one Business Day after
the trade date, if the Initial Interest Rate
for a Floating Rate Note is not known at the
time that Settlement Procedure A is completed,
Settlement Procedures B and C shall be
completed as soon as such rates have been
determined, but no later than noon and 2:00
p.m., New York City time, respectively, on the
second Business Day before the Settlement Date.
Settlement Procedure I is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the Settlement Date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, Chase will deliver to
DTC, through DTC's Participant Terminal System,
a cancellation message to such effect by no
later than 5:00 p.m., New York City time, on
the Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure G, Chase may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit
such Book-Entry Note to the participant account
of Chase maintained at DTC. DTC will process
the withdrawal message, provided that such
participant account contains a principal amount
of the Global Note representing such Book-Entry
Note that is at least equal to the principal
amount to be debited. If withdrawal messages
are processed with respect to all the Book-
Entry Notes represented by a Global Note, the
Trustee will xxxx such Global Note "cancelled",
make appropriate entries in its records and
send such cancelled Global Note to the Company.
The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. If withdrawal messages are
processed with respect to a portion of the
Book-Entry Notes represented by a Global Note,
Chase will exchange such Global Note for
A-II-2
two Global Notes, one of which shall represent
the Book-Entry Notes for which withdrawal
messages are processed and shall be cancelled
immediately after issuance, and the other of
which shall represent the other Book-Entry
Notes previously represented by the surrendered
Global Note and shall bear the CUSIP number of
the surrendered Global Note. In the case of any
Book-Entry Note sold through the Presenting
Agent, as agent, if the purchase price for any
Book-Entry Note is not timely paid to the
Participants with respect to such Book-Entry
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 related
Presenting Agent may enter SDFS deliver orders
through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures G and H, respectively.
Thereafter, Chase will deliver the withdrawal
message and take the related actions described
in the preceding paragraph. If such failure has
occurred for any reason other than default by
the applicable Presenting Agent to perform its
obligations hereunder or under the Agreement,
the Company will reimburse such Presenting
Agent on an equitable basis for its loss of the
use of funds during the period when the funds
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry 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 a Book-Entry Note that was to have been
represented by a Global Note also representing
other Book-Entry Notes, the Trustee will
provide, in accordance with Settlement
Procedures D and E, for the authentication and
issuance of a Global Note representing such
remaining Book-Entry Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Certificated Notes will be issued in
denominations of $1,000 and integral multiples
of $1,000 in excess thereof unless otherwise
indicated in the applicable Pricing Supplement.
A-II-2
Payments of Principal, Upon presentment and delivery of the
Premium, if any, and Interest: Certificated Note, Chase upon receipt of
immediately available funds from the Company
will pay the principal amount of each
Certificated Note at Maturity and premium, if
any, and the final installment of interest in
immediately available funds. All interest
payments on a Certificated Note, other than
interest due at Maturity, will be made at the
Corporate Trust Office; provided, however, that
such payment of interest may be made, at the
option of the Company by check to the address
of the person entitled thereto as such address
shall appear in the Security Register.
Notwithstanding the foregoing, holders of
$1,000,000 or more in aggregate principal
amount of Certificated Notes having the same
Interest Payment Dates shall, at the option of
the Company, be entitled to receive payments of
interest (other than at Maturity) by wire
transfer of immediately available funds if
appropriate wire transfer instructions and
identifying information concerning such holder
to be found in the Security Register have been
received in writing by Chase by the Regular
Record Date (any such wire transfer
instructions received by Chase shall remain in
effect until revoked by such Holder).
Chase will provide monthly to the Company a
list of the principal, premium, if any, and (to
the extent then ascertainable) interest to be
paid on Certificated Notes maturing in the next
succeeding month. Chase will be responsible for
withholding taxes on interest paid as required
by applicable law, but shall be relieved from
any such responsibility if it acts in good
faith and in reliance upon an opinion of
counsel.
Certificated Notes presented to Chase at
Maturity for payment will be cancelled by the
Trustee. All cancelled Certificated Notes held
by the Trustee shall be disposed of in
accordance with its customary procedures, and
the Trustee shall furnish to the Company a
certificate with respect to such disposition.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall
be as follows:
A. The Presenting Agent will advise the
Company by telephone, confirmed by
facsimile, of the following settlement
information with regard to each
Certificated Note:
A-II-2
1. Exact name in which the Certificated
Note(s) is (are) to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any, and
interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount.
5. Authorized denomination.
6. Fixed Rate Notes:
(a) interest rate;
(b) interest payment dates; and
(c) whether such Fixed Rate Note is being
issued as an Original Issue Discount
Note, if so, the terms thereof.
Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) index maturity;
(i) calculation agent;
(j) maximum interest rate, if any;
(k) minimum interest rate, if any;
(l) calculation date;
(m) interest determination dates; and
(n) whether such Floating Rate Note is
being issued as an Original Issue
Discount Note and, if so, the terms
thereof.
A-II-2
7. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Presenting Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity.
11. Net proceeds to the Company.
12. Presenting Agent's discount or commission
(determined in accordance with Section 2(a)
of the Agreement).
13. Redemption provisions, if any, including:
Redemption Commencement Date, Initial
Redemption Percentage and Annual Redemption
Percentage Reduction.
14. Optional Repayment Date(s) and repayment
provisions, if any.
15. Name of Presenting Agent (and whether such
Note is being sold to the Presenting Agent
as principal or to an investor or other
purchaser through the Presenting Agent
acting as agent for the Company).
16. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. After receiving such settlement information
from the Presenting Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone. The Company will
cause the Trustee to issue, authenticate
and deliver the Certificated Notes.
X. Xxxxx will complete the preprinted 4-ply
Certificated Note packet containing the
following documents in forms approved by
the Company, the Presenting Agent and the
Trustee consistent with the Indenture, and
will make three copies thereof (herein
called "Stub 1," "Stub 2" and "Stub 3"):
1. Certificated Note with the Presenting
Agent's confirmation, if traded on a
principal basis, or the Presenting Agent's
customer confirmation, if traded on an
agency basis.
A-II-2
2. Stub 1 - for Trustee.
3. Stub 2 - for Presenting Agent.
4. Stub 3 - for the Company.
D. With respect to each trade, Chase will
deliver the Certificated Notes and Stub 2
thereof to the Presenting Agent at the
following applicable address: If to Bear,
Xxxxxxx & Co. Inc. to Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, 0/xx/ Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Medium
Term Note Department, if to Chase
Securities Inc., to Chase Securities Inc.,
00 Xxxxx Xxxxxx, Xxxx 000, Window 17 or 18,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxxxxx and if to Xxxxxxx, Sachs & Co. to
Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxxx Xxxxxx, 6th
Floor. The Trustee will keep Stub 1. The
Presenting Agent will acknowledge receipt
of the Certificated Note through a broker's
receipt and will keep Stub.
2. Delivery of the Certificated Note will be
made only against such acknowledgment of
receipt. Upon determination that the
Certificated Note has been authorized,
delivered and completed as aforementioned,
the Presenting Agent will wire the net
proceeds of the Certificated Note after
deduction of its applicable discount or
commission to the Company pursuant to
standard wire instructions given by the
Company.
E. In the case of Certificated Notes sold
through the Presenting Agent, as agent, the
Presenting Agent will deliver the
Certificated Note (with confirmations), as
well as a copy of the Prospectus and the
applicable Pricing Supplement or
Supplements received from the Trustee to
the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the
Company.
Settlement Procedures For offers to purchase Certificated Notes
Timetable: accepted by the Company, Settlement Procedures
"A" through "F" set forth above shall be
completed as soon as possible following the
trade but not later than the respective times
(New York City time) set forth below:
A-II-2
Settlement
Procedure Time
--------------- ----------------------------
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
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: In the case of Certificated Notes sold through
the Presenting Agent, as agent, in the event
that a purchaser of a Certificated Note from
the Company either fails to accept delivery of
or make payment for a Certificated Note on the
Settlement Date, the Presenting Agent will
forthwith notify the Trustee and the Company by
telephone, confirmed in writing, and return
such Certificated Note and related stub to the
Trustee.
The Trustee, upon receipt of the Certificated
Note and related stub from the Presenting
Agent, will immediately advise the Company and
the Company will promptly arrange to credit the
account of the Presenting Agent in an amount of
immediately available funds equal to the amount
previously paid by such Presenting Agent in
settlement for such Certificated Note. Such
credits will be made on the Settlement Date if
possible, and in any event not later than the
Business Day following the Settlement Date;
provided that the Company has received notice
on the same day. If such failure has occurred
for any reason other than failure by such
Presenting Agent to perform its obligations
hereunder or under the Agreement, the Company
will reimburse such Presenting Agent on an
equitable basis for its loss of the use of
funds during the period when the funds were
credited to the account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the failure occurred,
the Trustee will cancel and dispose of the
Certificated Note (and related stubs) in
accordance with its customary procedures, make
appropriate entries in its records to reflect
the fact that the Certificated Note was never
issued, and accordingly notify in writing the
Company.
A-II-2
A-II-2
ANNEX III
Accountants' Letter
--------------
Pursuant to Section 4(j) and Section 6(d), as the case may be, of the
Agreement, the Company's independent certified public accountants shall furnish
letters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements and
financial statement schedules audited by them and incorporated by
reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations thereunder.
(iii) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or that any material
modifications should be made for them to be in conformity with generally
accepted accounting principles;
(B) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma
A-III-1
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
(C) as of the date of the latest available financial statements of
the Company and at a subsequent date not more than five business days prior
to the date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock under the Company's
[Dividend Reinvestment and Stock Purchase Plan, Employee Stock Ownership
Plan, Retirement Savings Plan, Stock Option and Incentive Plans] or other
similar plans, and the incurrence of capital stock issuance expenses) of
the Company or in the preferred stock or other securities of the Company's
subsidiaries, or any increase in the consolidated long-term debt of the
Company and its subsidiaries or any decreases in consolidated net assets of
the Company and its subsidiaries or other items specified by the Agents, or
any increases in any items specified by the Agents, in each case as
compared with the amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases that the Prospectus discloses have occurred
or may occur or that are described in such letter; and
(D) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus ending as of the
date of the latest available financial statements of the Company and at (i)
the most recent month end if the date of such letter is 15 or more days
following such most recent month end or (ii) the month end immediately
preceding the most recent month end if the date of such letter is fewer
than 15 days following such most recent month end, there were any decreases
in consolidated revenues of the Company, or any increases in any items
specified by the Agents, in each case as compared with the comparable
period of the preceding year and with any other period of corresponding
length specified by the Agents, except in each case for increases or
decreases that the Prospectus discloses have occurred or may occur or that
are described in such letter;
(iv) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
that are derived from the general accounting records of the Company
and its subsidiaries, that appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Agents
or in documents incorporated by reference in the Prospectus specified
by the Agents, and have compared certain of such amounts, percentages
and financial information with the accounting
A-III-
records of the Company and its subsidiaries and have found them to be
in agreement.
All references to the Prospectus in this Annex III shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Agreement as of the Commencement Date referred to in
Section 6(d) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to an
agreement to purchase Securities as principal requiring the delivery of such
letter under Section 4(j) thereof.
A-III-
