XXXXXX CO.
Medium-Term Notes, Series A,
Due Nine Months or More From Date of Issue
FIRST AMENDMENT TO DISTRIBUTION AGREEMENT
June 6, 1997
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FIRST CHICAGO CAPITAL MARKETS, INC.
One First National Plaza
Mail Suite 0595, 8th Floor
Chicago, Illinois 60670
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Co., a Delaware corporation (the "Company"), and each of Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Chase Securities Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated (collectively, the "Original Agents") have entered
into a Distribution Agreement, dated May 3, 1996 (the "Agreement"), with
respect to the issue and sale by the Company of its Medium-Term Notes, Series
A, Due Nine Months or More From Date of Issue (the "Notes"). The Company,
each of the Original Agents and First Chicago Capital Markets, Inc. ("First
Chicago") now desire to amend the Agreement in the manner described below.
Terms used and not otherwise defined in this First Amendment to Distribution
Agreement have the meanings set forth in the Agreement.
1. The Company hereby formally notifies each of the Original Agents that,
effective as of the date hereof, it has appointed First Chicago as an Agent (as
defined in the Agreement) under
the Agreement with respect to the issue and sale of the Notes, on the terms and
subject to the conditions set forth in the Agreement, as amended hereby.
Pursuant to Section 1(a) of the Agreement, First Chicago, in order to be
appointed an Agent to act on the Company's behalf, or to assist the Company in
the placement of the Notes, agrees to be bound by the terms and provisions of
the Agreement, as amended hereby.
2. Effective as of the date hereof, the Agreement is amended in the
manner described below:
a. All references in the Agreement to anAgent or the Agents shall be
deemed to include First Chicago Capital Markets, Inc.
b. All references in the Agreement to a Note or Notes shall be
deemed to include any Notes that are Remarketed Notes (as defined
in the Prospectus).
c. Section 2(a) of the Agreement is amended to add a new subsection
(xvi), set out below in its entirety:
"(xvi) Authorization and Validity of the Remarketing
Agreement. The Remarketing Agreement (as defined in
the Prospectus), if applicable, has been duly and
validly authorized, executed and delivered by the
Company and, assuming the Remarketing Agreement has
been duly authorized, executed and delivered by the
Remarketing Agent or Remarketing Agents (as defined in
the Prospectus), will be a valid and legally binding
agreement of the Company."
d. Section 2(a)(ix) of the Agreement is deleted in its entirety and
replaced by the following:
"(ix) No Defaults. Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter
or in default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it
is a party or by which it or any of them may be bound,
or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is
subject, except when such default would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution,
delivery and performance of this Agreement, the
Remarketing Agreement, if applicable, the Indenture and
the Notes, the compliance by the Company with its
obligations hereunder and thereunder and
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the consummation of the transactions contemplated
herein, therein and pursuant to any applicable Terms
Agreement will not conflict with or constitute a breach
of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its
Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any such
subsidiary is subject, nor will such action result in
any violation of the provisions of the charter or
by-laws of the Company or any law, administrative
regulation or administrative or court order or decree
of any court or governmental agency, authority or body
or any arbitrator having jurisdiction over the
Company."
e. Section 5(a)(2)(viii) of the Agreement is amended to add the
phrase "Special Provisions Relating to Remarketed Notes," before
the phrase "Special Provisions Relating to Foreign Currency
Notes."
f. Section 5(a)(2)(xii) of the Agreement is amended to add the
phrase "the Remarketing Agreement, if applicable" between the
phrases "the Agreement," and "the Indenture."
g. Section 5(a)(2) of the Agreement is amended to add a new
subsection (xvi) as set out below:
"(xvi) The Remarketing Agreement if applicable, has been duly
and validly authorized, executed and delivered by the
Company."
h. For purposes of determining the compensation payable to the
applicable Agent or Agents in accordance with Schedule A to the
Agreement in connection with the sale of any Remarketed Notes,
all references in such Schedule A to "Maturity Ranges" shall be
deemed to be to the period to the first Interest Rate Adjustment
Date (as defined in the Prospectus).
3. Pursuant to Section 3(c) of the Agreement, the parties hereto agree
that the Administrative Procedures attached hereto as Exhibit A shall apply with
respect to the sale and/or remarketing of Remarketed Notes.
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If the foregoing is in accordance with your understanding of this First
Amendment to the Agreement, please sign and return to the Company a counterpart
hereof, whereupon this agreement along with all counterparts will become a
binding agreement between the Company and the Agents, including First Chicago,
in accordance with its terms.
Very truly yours,
XXXXXX CO.
By: __________________________
Name: X.X. Xxxxxxxxx
Title: Vice President-Treasurer
Confirmed and accepted by:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: _________________________________
Name:
Title:
Chase Securities Inc.
By: _________________________________
Name:
Title:
First Chicago Capital
Markets, Inc.
By: _________________________________
Name:
Title:
4
Xxxxxx Xxxxxxx & Co. Incorporated
By: _________________________________
Name:
Title:
5
XXXXXX CO.
ADMINISTRATIVE PROCEDURES
FOR MEDIUM TERM NOTES, SERIES A
(REMARKETED NOTES)
(DATED AS OF JUNE 6, 1997)
Medium Term Notes, Series A ("Medium Term Notes"), issued as Remarketed
Notes (the "Notes") are to be offered from time to time by Xxxxxx Co., a
Delaware corporation (the "Company"), to or through Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Chase Securities
Inc. ("Chase Securities"), Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx")
and First Chicago Capital Markets, Inc. ("First Chicago" and, together with
Xxxxxxx Xxxxx, Xxxxx Securities and Xxxxxx Xxxxxxx, the "Agents" and
individually, an "Agent"), pursuant to a Distribution Agreement dated May 3,
1995 and amended as of June 6, 1997 (as amended, supplemented or otherwise
modified, the "Distribution Agreement") between the Company and the Agents. The
Distribution Agreement provides both for the sale of Notes by the Company to one
or more of the Agents as principal for resale to investors and other purchasers
and 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 the Agents will act as agents of the Company in soliciting Note purchases.
Each sale of Notes will be made in accordance with terms agreed upon by the
related Agent or Agents and the Company in a Terms Agreement in the form
included in Exhibit A to the Distribution Agreement. Only those provisions in
these Administrative Procedures that are applicable to the particular role that
an Agent will perform shall apply.
The Notes will be issued pursuant to an Indenture, dated as of November 1,
1995 (the "Indenture"), between the Company and The Chase Manhattan Bank (as
successor in interest to The Chase Manhattan Bank (National Association)), as
trustee with respect to the Notes (the "Trustee"). In accordance with the
provisions of the Indenture, the Trustee will act as Authenticating Agent,
Transfer Agent and Paying Agent with respect to the Notes. Unless the context
otherwise requires, references herein to the Indenture include the form of Note
adopted in accordance with the terms of the Indenture.
A Registration Statement on Form S-3 (No. 33-64225) (the "Registration
Statement") with respect to debt securities, including the Notes, has been filed
under the Securities Act of 1933, as amended (the "1933 Act") with the
Securities and Exchange Commission (the "Commission") and declared effective on
January 23, 1996. The most recent base Prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement dated June 9, 1997
with respect to the Notes, is herein referred to as the "Prospectus". The most
recent supplement to the
6
Prospectus setting forth the purchase price, interest rate and other terms of
the Notes (as applicable) is herein referred to as the "Pricing Supplement".
The Notes will be issued in fully registered book-entry form and delivered
to the Trustee, as custodian for The Depository Trust Company ("DTC"). The
terms of the initial issuance of each Note will be recorded on Annex A to the
book-entry note representing such Note. All other variable terms of the Notes
in connection with remarketings will be maintained in the Trustee's records.
Owners of beneficial interests in Notes issued in book-entry form will be
entitled to physical delivery of Notes in certificated form equal in principal
amount to their respective beneficial interests only upon certain limited
circumstances described in the Prospectus.
As set forth in the Prospectus, the Company shall appoint one or more
remarketing agents (each, a "Remarketing Agent" and, collectively, the
"Remarketing Agents") with respect to the Notes pursuant to one or more
remarketing agreements (collectively, the "Remarketing Agreement").
General procedures relating to the initial issuance of Notes are set forth
in Part I hereof. Certain procedures relating to the remarketing of Notes are
set forth in Part II hereof. Certain DTC procedures relating to the initial
issuance and remarketing of Notes are set forth in Part III hereof. Procedures
relating to the payment of principal and interest are set forth in Part IV
hereof. Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Indenture or the Notes, as the case may be.
The Administrative Procedures, dated as of May 3, 1996, relating to the
Medium Term Notes shall apply to the Notes except as modified or superseded
hereby. In the event of any discrepancy between these Administrative Procedures
and the Distribution Agreement, the Remarketing Agreement, the Letter of
Representations or the Indenture, the latter documents shall govern.
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PART I: PROCEDURES FOR INITIAL ISSUANCE
OF NOTES
Preparation of Pricing Supplement: If any offer to purchase a Note is accepted
by the Company, the Company will promptly
prepare a Pricing Supplement reflecting the
terms of such Note and file such Pricing
Supplement with the Commission in accordance
with Rule 424 under the 1933 Act.
Information to be included in the Pricing
Supplement shall include:
1. the name of the Company;
2. the title of the securities, including
series designation;
3. the date of the Pricing Supplement and
the dates of the Prospectus and
Prospectus Supplement to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. whether such Notes are being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company;
6. with respect to Notes sold to the
Offering Agent as principal, whether
such Notes will be resold by the
Offering Agent to investors and other
purchasers (i) at a fixed public offering
price of a specified percentage of their
principal amount, (ii) at varying prices
related to prevailing market prices at
the time of resale to be determined by
the Offering Agent or (iii) at 100% of
their principal amount;
7. with respect to Notes sold to an investor
or other purchaser through the Offering
Agent acting as agent for the Company,
whether such Notes will
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be sold at (i) 100% of their principal
amount or (ii) at a specified percentage
of their principal amount;
8. the Offering Agent's commission or
underwriting discount;
9. net proceeds to the Company;
10. the Principal Amount, Original Issue
Date, Stated Maturity, Initial Interest
Rate, Initial Interest Rate Period, first
Interest Rate Adjustment Date, Interest
Payment Date(s) and Record Date(s) in
respect of the Initial Interest Rate
Period, and Redemption or Repayment
provisions, if any, applicable to the
Initial Interest Rate Period; and
11. any other provisions of the Notes
material to investors or other purchasers
of the Notes not otherwise specified in
the Prospectus.
One copy of such filed document will be sent
by telecopy or overnight express (for
delivery as soon as practicable following the
trade, but in no event later than 11:00 a.m.
New York City time, on the Business Day
following the applicable trade date) to the
Agent that made or presented the offer to
purchase the applicable Note (in such
capacity, the "Offering Agent") and the
Trustee at the following applicable address:
if to Xxxxxxx Xxxxx, to: Tritech Services,
00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Prospectus
Operations/Xxxxxxx Xxxxxxxxx,
Telephone: (000) 000-0000, Telecopier:
(000) 000-0000/5/6; If to Chase Securities,
to: 000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx
Xxxx 00000, Attention: Medium-Term Note
Desk, Telephone: (000) 000-0000,
Telecopier: (000) 000-0000; If to Xxxxxx
Xxxxxxx, to: 0000 Xxxxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention:
Medium-Term Note Trading Desk, Xxxxxx
Xxxxxxx, Telephone: (000) 000-0000,
Telecopier: (000) 000-0000; if to First
Chicago, to: One First Xxxxxxxx Xxxxx, Xxxxx
0000,
0
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx
Xxxxxx, (000) 000-0000, telecopier: (312)
732-1033; if to the Trustee, to: The Chase
Manhattan Bank, 000 X. 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Global Trust
Services - 15th Floor, Attention: Xxxxxx
Xxxxxx, (000) 000-0000, telecopier:
(000) 000-0000. For record keeping purposes,
one copy of each Pricing Supplement, as so
filed, shall also be mailed or telecopied to
Xxxxx & Wood LLP at Xxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxx, Telephone: (000) 000-0000,
Telecopier: (000) 000-0000.
In each instance that a Pricing Supplement
is prepared, the Offering 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") under the 1933 Act, the Pricing
Supplement may be delivered separately from
the Prospectus. Outdated Pricing Supplements
(other than those retained for files) will
be destroyed.
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 a time as the purchaser, the applicable
Agent and the Company shall agree, pursuant
to the timetable for settlement set forth
below under "Settlement Procedures" (each
such date fixed for settlement is hereinafter
referred to as a "Settlement Date"). If
procedures A and B of the 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, the
applicable Agent and the Company shall agree.
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The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so agreed
by the Company and such Agent.
Delivery of Prospectus and appli- A copy of the most recent Prospectus
cable Pricing Supplement: covering the Notes and applicable Pricing
Supplement must accompany or precede the
earlier of (a) the written confirmation of a
sale sent to an investor or other purchaser
or its agent and (b) the delivery of Notes
to an investor or other purchaser or its
agent. Delivery of the Prospectus and
Pricing Supplement shall be the
responsibility of the Offering Agent.
Settlement Procedures: Settlement Procedures with regard to each
Note purchased by each Agent, as principal,
or sold by each Agent, as agent of the
Company, will be as follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile or appropriate electronic
media, of the following Settlement
information:
1. Principal amount of the Note.
2. Initial Interest Rate, Initial
Interest Rate Period, first
Interest Rate Adjustment Date,
Interest Payment Date(s) and
Record Date(s) in respect of
the Initial Interest Rate
Period, and Redemption or
Repayment provisions, if any,
applicable to the Initial
Interest Rate Period.
3. Price to public, if any, of
the Note (or whether the Note
is being offered at varying
prices relating to prevailing
market prices at time of
resale as determined by the
Offering Agent).
4. Trade Date.
5. Settlement Date (Original
Issue Date).
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6. Stated Maturity.
7. Net proceeds to the Company.
8. The Offering Agent's commission or
underwriting discount.
9. Whether such Note is being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting
as agent for the Company.
10. Whether such Note is being issued
at a discount and the terms thereof
(provided that no Note shall be
issued with "original issue
discount" within the meaning of the
Internal Revenue Code of 1986, as
amended).
11. Identification number of DTC
participant account maintained on
behalf of the Offering Agent.
12. Such other information specified
with respect to the Note.
B. The Trustee will assign a CUSIP number
to the Note (which CUSIP number assigned
to each Note shall consist of the base
issuer number and three additional
positions to form a CUSIP number unique
to that issuance) after being advised by
the Company by facsimile transmission or
other electronic transmission of the
above settlement information received
from the Offering Agent and the name of
the Offering Agent. Such transmission
shall be accompanied or immediately
followed by a Company Order instructing
the Trustee to authenticate the
book-entry note representing the Note
and record the initial terms of the Note
on Annex A in accordance with the terms
of the Notes.
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C. The Trustee will communicate to DTC and
the Offering Agent through DTC's
Participant Terminal System same-day
settlement issuance instructions
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 the Trustee and
the Offering Agent.
3. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related
record date for DTC purposes and,
if then calculable, the amount of
interest payable on such Interest
Payment Date.
4. CUSIP number of the Note.
5. Such other information as DTC may
require in accordance with its
procedures as in effect from time
to time in order to enter an SDFS
(as defined in Part III below)
deliver order through DTC's
Participant Terminal System (i)
debiting such Note to the Trustee's
participant account and crediting
such Note to the participant account
of the Offering Agent maintained by
DTC and (ii) debiting the settlement
account of the Offering Agent and
crediting the settlement account of
the Trustee maintained by DTC, in
an amount equal to the price of
such Note less such Offering Agent's
discount or underwriting commission,
as applicable.
DTC will arrange for each pending deposit
