EXHIBIT 1.2
THE XXXXXXX XXXXXX CORPORATION
MEDIUM TERM NOTES
DISTRIBUTION AGREEMENT
_______ __, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Ladies/Gentlemen:
The Xxxxxxx Xxxxxx Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of such aggregate initial public offering price of
its Medium-Term Notes, Series A, due more than 9 months from date of issue, as
at such time (a) has been duly authorized for issuance and sale by the Board of
Directors of the Company and (b) is covered by one or more registration
statements that have become effective under the Securities Act of 1933, as
amended (the "Notes"). The Notes may be issued as senior indebtedness (the
"Senior Notes") or as senior subordinated indebtedness (the "Senior Subordinated
Notes") of the Company. The Senior Notes will be issued pursuant to the
provisions of a senior indenture dated as of July 15, 1993, as amended (the
"Senior Debt Indenture") between the Company and The Chase Manhattan Bank
(formerly Chemical Bank), as trustee (the "Trustee"). The Senior Subordinated
Notes will be issued pursuant to the provisions of a senior subordinated
indenture dated as of July 15, 1993, as amended (the "Senior Subordinated Debt
Indenture") between the Company and the Trustee. The Senior Debt Indenture and
the Senior Subordinated Debt Indenture are sometimes hereinafter referred to
individually as an "Indenture" and collectively as the "Indentures." The Notes
will have the maturities, interest rates, redemption provisions, if any, and
other terms as set forth in supplements to the Basic Prospectus referred to
below.
Subject to the terms and conditions stated herein, and subject to the
reservation by the Company of the right to appoint additional Agents that will
agree to be subject to the terms hereof pursuant to Section 12 hereof and to
sell Notes directly on its own behalf at any time and to any person in those
jurisdictions where such offering by the Company is authorized, the Company
hereby appoints Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"), Xxxxxxx,
Xxxxx & Co. ("Xxxxxxx, Sachs"), Credit Suisse First Boston Corporation ("CS
First Boston"), and Xxxxxxx Xxxxxx & Co., Inc. ("Xxxxxxx Xxxxxx") (individually,
an "Agent" and collectively, the "Agents") as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Notes from the Company by
others and, on the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, each Agent agrees to
use reasonable efforts to solicit and receive offers to purchase Notes upon
terms acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify. In addition, any Agent may also purchase Notes
as principal pursuant to the terms of a terms agreement relating to such sale (a
"Terms Agreement") in accordance with the provisions of Section 2(b) hereof.
Each Agent acknowledges that, in the case of any sale of Notes by the Company
not resulting from a solicitation made or an offer to purchase received by such
Agent, or arising in connection with a purchase by such Agent as principal, no
commission shall be payable to such Agent with respect to such sale. Each Agent
further acknowledges that in acting under this Agreement and in connection with
the sale of any Notes by the Company (other than Notes sold to such Agent as
principal), such Agent is acting solely as agent of the Company and does not
assume any obligation towards or relationship of agency or trust with any
purchaser of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, and may in the
future file one or more additional registration statements, in each case
including a prospectus, relating to the Notes. The term "Registration
Statement," as used herein, means, at any time, such of the foregoing
registration statements, including the exhibits thereto, as are being used to
offer Notes at such time. The Company proposes to file with the Commission from
time to time, pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Company has filed an abbreviated registration statement
to register additional Debt Securities pursuant
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to Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants
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to and agrees with each Agent as of the Commencement Date (as hereinafter
defined), as of each date on which an Agent solicits offers to purchase Notes,
as of each date on which the Company accepts an offer to purchase Notes
(including any purchase by an Agent pursuant to a Terms Agreement), as of each
date the Company issues and delivers Notes, and as of each date the Registration
Statement or the Basic Prospectus is amended or supplemented, as follows (it
being understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder; (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder; and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to an Agent
furnished to the Company in writing by such Agent expressly for use therein or
(B) to that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee and (2) the representations and
warranties set forth in clauses (iii) and (iv) above, when made as of the
Commencement Date or as of any date on which an Agent solicits offers to
purchase Notes or on which the Company accepts an offer to purchase Notes, shall
be deemed not to cover information concerning an offering of particular Notes to
the extent such information will be set forth in a supplement to the Basic
Prospectus.
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(c) The Company is a duly incorporated, validly existing corporation in
good standing under the laws of the State of Delaware, has the corporate power
and authority to own its property and conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each of Xxxxxx Holdings, Inc. ("Holdings"), Xxxxxxx Xxxxxx, and each
other subsidiary of the Company that is a "significant subsidiary" within the
meaning of Rule 1-02 of Regulation S-X of the Commission (each, a "Significant
Subsidiary" and collectively, the "Significant Subsidiaries") is a duly
incorporated, validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and authority to
own its property and conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Terms Agreement
(as hereinafter defined) has been duly authorized, executed and delivered by the
Company.
(f) Each Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The forms of Notes have been duly authorized and, when the Notes
have been executed and authenticated in accordance with the provisions of the
relevant Indenture and delivered to and duly paid for by the purchasers thereof,
the Notes will be entitled to the benefits of such Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The execution and delivery by the Company of this Agreement, the
Notes, the Indentures and any applicable Written Terms Agreement, and the
performance by the Company of its obligations under this Agreement, the Notes,
the Indentures and
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any applicable Terms Agreement will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or Xxxxxxx
Xxxxxx or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Notes, the Indentures and any applicable Terms
Agreement, or for the performance by Xxxxxxx Xxxxxx of its obligations under
this Agreement and any applicable Terms Agreement, except such as have been
obtained, and such as may be required by the securities or Blue Sky laws of the
various states and territories in connection with the offer and sale of the
Notes; provided, however, that no representation is made as to whether the
purchase of the Notes constitutes a "prohibited transaction" under Section 406
of the Employee Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(i) There has not occurred any material adverse change, or any
development which could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(k) The Company is not an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(l) Each of the Company and its Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations and
all courts and other tribunals, to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(m) Each of the Company and its Significant Subsidiaries is duly
registered as a broker-dealer, municipal securities broker or dealer, investment
adviser, or transfer agent, as the case may be, in each jurisdiction wherein the
conduct of its business requires such registration, and each of the Company and
its Significant Subsidiaries is in compliance in all material respects with all
applicable laws, rules, regulations, orders, by-
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laws and similar requirements in connection with such registrations, except to
the extent that the failure to be so registered or be in compliance would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) Xxxxxxx Xxxxxx is a member in good standing of the associations and
exchanges indicated in the Prospectus and is registered as a broker-dealer with
the Commission and in all 50 states, the District of Columbia and Puerto Rico,
except to the extent that the failure to be in good standing or be so registered
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
2. Solicitations as Agent; Purchases as Principal.
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(a) Solicitations as Agent. In connection with an Agent's actions as
----------------------
agent hereunder, such Agent agrees to use reasonable efforts to solicit offers
to purchase Notes upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one business
day's prior notice from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c). If the Registration Statement or Prospectus is amended or supplemented
during the period of suspension (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a change the
Agents deem to be immaterial), no Agent shall be required to resume soliciting
offers to purchase Notes until the Company has delivered such certificates,
opinions and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase received
by such Agent, a commission in the form of a discount from the purchase price of
such Note equal to the percentage set forth below of the purchase price of such
Note:
Term of Note Commission Rate
------------ ---------------
From 9 months to less than 12 months .125%
From 12 months 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%
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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%
More than 30 years .875%
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in its judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Notes and may reject any offer in whole or in part.
Each Agent shall have the right to reject any offer to purchase Notes that it
considers to be unacceptable, and any such rejection shall not be deemed a
breach of its agreements contained herein. The procedural details relating to
the issue and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
----------------------
shall be made in accordance with the terms of this Agreement. In connection
with each such sale, the Company will enter into a Terms Agreement that will
provide for the sale of such Notes to and the purchase thereof by such Agent.
Each Terms Agreement will take the form of either (i) a written agreement
between such Agent and the Company, which may be substantially in the form of
Exhibit A hereto (a "Written Terms Agreement") or (ii) an oral agreement between
such Agent and the Company, which may be confirmed in writing by such Agent to
the Company.
An Agent's commitment to purchase Notes as principal pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
maturity date of such Notes, the price to be paid to the Company for such Notes,
the interest rate and interest rate formula, if any, applicable to such Notes
and any other terms of such Notes. Each such Terms Agreement may also specify
any requirements for officers' certificates, opinions of counsel and letters
from the independent auditors of the Company pursuant to Section 4 hereof. A
Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment for Notes to be
purchased by an Agent pursuant to a Terms Agreement is referred to herein as a
"Settlement Date."
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Unless otherwise specified in a Terms Agreement, if an Agent is
purchasing Notes as principal such Agent may resell such Notes to other dealers.
Any such sales may be at a discount, which shall not exceed the amount set forth
in the Prospectus Supplement relating to such Notes.
(c) Administrative Procedures. The Agents and the Company agree to
-------------------------
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes, Series A, Administrative Procedures
(attached hereto as Exhibit B) (the "Administrative Procedures"), as amended
from time to time. The Administrative Procedures may be amended only by written
agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by Section 4 of
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this Agreement as a condition precedent to each Agent's obligation to begin
soliciting offers to purchase Notes as an agent of the Company shall be
delivered at the office of Howard, Rice, Nemerovski, Canady, Xxxx & Xxxxxx, A
Professional Corporation, counsel for the Company, not later than 1:00 p.m.,
California time, on the date hereof, or at such other time and/or place as the
Agents and the Company may agree upon in writing, but in no event later than the
day prior to the earlier of (i) the date on which the Agents begin soliciting
offers to purchase Notes or (ii) the first date on which the Company accepts any
offer by an Agent to purchase Notes pursuant to a Terms Agreement. The date of
delivery of such documents is referred to herein as the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the obligations
-------------------
of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
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(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to the Agents copies thereof for
their review and will not file any such proposed supplement or amendment to
which the Agents reasonably object; provided, however, that (i) the foregoing
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requirement shall not apply to any of the Company's periodic 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 (ii) any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved by the Agent
or Agents offering such Notes. Subject to the foregoing sentence, the Company
will promptly cause each Prospectus Supplement to be filed with or transmitted
for filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise the Agents (i) of the filing of any
amendment or supplement to the Basic Prospectus (except that notice of the
filing of an amendment or supplement to the Basic Prospectus that merely sets
forth the terms or a description of particular Notes shall only be given to the
Agent or Agents offering such Notes), (ii) of
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the filing and effectiveness of any amendment to the Registration Statement,
(iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Basic Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use reasonable efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase Notes so
long as it is not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Securities Act, any event occurs or condition exists
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 to make the statements therein, in the light of the circumstances
when the Prospectus, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in the opinion of the Agents or in the opinion
of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law, the
Company will immediately notify the Agents by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Notes and, if so notified
by the Company, the Agents shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus, as then
amended or supplemented, it shall so advise the Agents promptly by telephone
(with confirmation in writing) and, at its expense, shall prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the Agents
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other provision of
this Section 3(b), until 180 days after the date any Agent has purchased Notes
as principal from the Company, if any event described above in this paragraph
(b) occurs, the Company will, at its own expense, forthwith prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to
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such Agent, will supply such amended or supplemented Prospectus to such Agent in
such quantities as it may reasonably request and shall furnish to such Agent
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as it may request in connection with the
preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders
and to the Agents as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a conformed
copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as such Agent may
reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualification for as long as the Agents
shall reasonably request.
(f) The Company shall furnish to the Agents such relevant documents and
certificates of officers of the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Basic Prospectus, any
amendments or supplements thereto, the Indentures, the Notes, this Agreement,
the Administrative Procedures, any Terms Agreement and the performance by the
Company of its obligations hereunder or thereunder as the Agents may from time
to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated,
pay all expenses incident to the performance of its obligations under this
Agreement and any Terms Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the
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preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the Trustee and
its counsel, (iv) the qualification of the Notes under securities or Blue Sky
laws in accordance with the provisions of Section 3(e), including filing fees
and the fees and disbursements of counsel for the Agents in connection therewith
and in connection with the preparation of any Blue Sky or Legal Investment
Memoranda, (v) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto and of the Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to the Agents of copies of any Blue Sky or Legal
Investment Memoranda, (vii) any fees charged by rating agencies for the rating
of the Notes, (viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix) the
reasonable fees and disbursements of counsel for the Agents incurred in
connection with the offering and sale of the Notes, including any opinions to be
rendered by such counsel hereunder, and (x) any reasonable out-of-pocket
expenses incurred by the Agents; provided that any advertising expenses incurred
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by the Agents shall have been approved by the Company.
(i) Between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the prior consent
of the Agent under such Term Agreement, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Notes that are to be sold pursuant to such Terms Agreement (other than (i)
such Notes, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in such Terms Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
-------------------------------------------
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes pursuant to any Terms Agreement and the
obligation of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof and to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed (in the case of an Agent's obligation
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of an Agent's or any other purchaser's obligation to purchase Notes, at
the time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development which
could reasonably be expected to result in a change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth
in the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such
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offer to purchase was made, that, in the judgment of the relevant Agent,
is material and adverse and that makes it, in the judgment of such
Agent, impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (B) suspension of trading of
any securities of the Company on any exchange or in any over-the-counter
market, (C) declaration of a general moratorium on commercial banking
activities in New York by either Federal or New York State authorities
or (D) any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
relevant Agent, is material and adverse and, in the case of any of the
events described in clauses (ii)(A) through (D), such event, singly or
together with any other such event, makes it, in the judgment of such
Agent, impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as amended or supplemented at the time
of such solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless in
each case described in (ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms Agreement,
on the corresponding Settlement Date, the relevant Agents shall have received:
(i) The opinion, dated as of such date, of Howard, Rice, Nemerovski,
Canady, Xxxx & Xxxxxx, A Professional Corporation, counsel for the
Company, to the effect that:
(A) Xxxxxxx Xxxxxx is a duly incorporated, validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own its
12
property and conduct its business as described in the Prospectus, as
then amended or supplemented;
(B) each of this Agreement and any applicable Written Terms
Agreement has been duly authorized, executed and delivered by the
Company;
(C) each Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as enforcement thereof
(a) may be limited by bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium and other similar laws or court
decisions affecting creditors' rights generally, (b) is subject to
general principles of equity, regardless of whether codified by
statute and regardless of whether enforcement is considered in a
proceeding in equity or at law, and (c) is subject to certain
additional customary exceptions;
(D) the forms of Notes have been duly authorized and established in
conformity with the provisions of the relevant Indenture and, if such
Note is duly executed by the Company and completed and authenticated
by the Trustee in accordance with the terms of the relevant Indenture
and delivered to and duly paid for by the purchasers thereof in
accordance with this Agreement and any applicable Terms Agreement on
the date of such opinion, such Note would be entitled to the benefits
of such Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except
as enforcement thereof (a) may be limited by bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium or other
similar laws or court decisions affecting creditors' rights generally,
(b) is subject to general principles of equity, regardless of whether
codified by statute and regardless of whether enforcement is
considered in a proceeding in equity or at law, and (c) is subject to
certain additional customary exceptions;
(E) (1) the execution and delivery by the Company of this Agreement,
the Indentures and any applicable Written Terms Agreement, and the
performance by the Company of its obligations under this Agreement,
the Indentures and any applicable Terms Agreement, as of the
Commencement Date (or Settlement Date, if applicable) did not
contravene, and (2) the execution and delivery by the Company of the
Notes, assuming such Notes were executed, issued and delivered in
accordance with this Agreement and the Indentures as of the
Commencement Date (or Settlement Date, if applicable) would not
contravene, (a) any provision of applicable law (other than the
securities or Blue Sky laws of the various states as to which such
counsel need express no opinion), or (b) the certificate or articles
of incorporation or by-
13
laws of the Company or Xxxxxxx Xxxxxx, or constitute a default under
the Revolving Credit Facility, consisting of (i) a Credit Agreement
(364-Day Commitment), between the Company, Bank of America National
Trust and Savings Association, as Administrative Agent, and the banks
listed therein, as lenders, dated as of June 25, 1999, and the
Promissory Notes issued pursuant thereto, and (ii) nine separate but
substantially identical Credit Agreement (3-Year Commitment), between
the Company and each of the banks listed in those Credit Agreements,
each dated as of June 26, 1998, as amended, and the Promissory Notes
issued pursuant thereto, or to the best knowledge of such counsel,
after reasonable investigation, any other instrument or agreement
binding upon the Company or any subsidiary and evidencing or related
to indebtedness for borrowed money, except such instruments and other
agreements relating to capitalized lease obligations and installment
purchase agreements for the acquisition of fixed assets for which
indebtedness does not in the aggregate exceed $15 million; and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes (assuming
such Notes were executed, issued and delivered in accordance with this
Agreement and the Indentures as of the Commencement Date or Settlement
Date, if applicable), the Indentures and any applicable Terms
Agreement, or for the performance by Xxxxxxx Xxxxxx of its obligations
under this Agreement and any applicable Terms Agreement, except such
as are specified and have been obtained, and such as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes; provided, however, that such
counsel need not express an opinion as to whether the purchase of the
Notes constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(F) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Plan of Distribution" (in the Prospectus Supplement and
in the Basic Prospectus), and (2) in the Registration Statement, as
then amended or supplemented, under Item 15, in each case insofar as
such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(G) such counsel is of the opinion that the statements in the
Prospectus, as amended or supplemented, under the caption "Certain
14
United States Federal Income Tax Consequences" are accurate in all
material respects.
The letter containing such opinion shall also contain a statement
that although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and
such counsel makes no representation that it has independently verified
the accuracy, completeness or fairness of such statements (except as to
those matters stated in subparagraphs (F) and (G) above), such counsel
has no reason to believe (1) that any document, if any, filed by the
Company pursuant to the Exchange Act and incorporated by reference in
the Prospectus, as then amended or supplemented (except for financial
statements and schedules and other financial and statistical data
included therein, and except for any proxy statement of the Company, as
to which such counsel need not express any opinion), did not comply when
so filed as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (2)
that (except for the financial statements and schedules and other
financial and statistical data as to which such counsel need not express
any belief, except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to and except for any proxy
statement of the Company) any part of the Registration Statement, as
amended, if applicable, as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) that the Registration Statement
and Prospectus, as then amended or supplemented, if applicable (except
for financial statements and schedules and other financial and
statistical data included therein and except for any proxy statement of
the Company, as to which such counsel need not express any opinion) do
not comply as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder
and (4) that (except for the financial statements and schedules and
other financial and statistical data and except for any proxy statement
of the Company, as to which such counsel need not express any belief)
the Prospectus, as then amended or supplemented, if applicable, as of
the date such opinion is delivered, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided that in the case of an opinion
--------
delivered on the Commencement Date or pursuant to Section 5(b), the
opinion and belief set forth in clauses (3) and (4) above shall be
deemed not to cover information concerning an offering of particular
Notes to the extent such information will be set forth in a supplement
to the Basic Prospectus.
15
(ii) The opinion, dated as of such date, of the Office of Corporate
Counsel of the Company to the effect that:
(A) the Company is a duly incorporated, validly existing
corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and conduct
its business as described in the Prospectus, as then amended or
supplemented, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(B) each of the Company's Significant Subsidiaries is a duly
incorporated, validly existing corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and conduct its business as
described in the Prospectus, as then amended or supplemented, and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(C) each of the Company and its Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as
amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(D) the statements (1) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus, as then amended or supplemented and (2)
in "Item 1 -Legal Proceedings" of Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since such annual report, and (3)
under the caption "Employment Agreement and Name Assignment" in the
Company's Proxy Statement for its Annual Meeting of Stockholders
immediately succeeding the filing of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus, in
each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present
the
16
information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein;
(E) after due inquiry, such counsel does not know of any contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, or to be filed or incorporated by reference as exhibits
to such Registration Statement that are not described, filed or
incorporated as required;
(F) each of the Company and its Significant Subsidiaries is duly
registered as a broker-dealer, municipal securities broker or dealer,
investment adviser, or transfer agent, as the case may be, in each
jurisdiction wherein the conduct of its business requires such
registration, and each of the Company and its Significant Subsidiaries
is in compliance in all material respects with all applicable laws,
rules, regulations, orders, by-laws and similar requirements in
connection with such registrations, except to the extent that the
failure to be so registered or be in compliance would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(G) Xxxxxxx Xxxxxx is a member in good standing of the associations
and exchanges indicated in the Prospectus, as then amended or
supplemented, and is registered as a broker-dealer with the Commission
and in all 50 states, the District of Columbia and Puerto Rico, except
to the extent that the failure to be in good standing or be so
registered would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and
(H) (1) the execution and delivery by the Company of the
Agreement, the Indentures and any applicable Written Terms Agreement,
and the performance by the Company of its obligations under the
Agreement, the Indentures and any applicable Terms Agreement, as of
the Commencement Date (or Settlement Date, if applicable), did not
violate, and (2) the execution and delivery by the Company of the
Notes, assuming such Notes were executed, issued and delivered in
accordance with this Agreement and the Indentures as of the
Commencement Date (or Settlement Date, if applicable), would not
violate, to such counsel's best knowledge, after reasonable
investigation, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary
(except for such contravention that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole).
(I) After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties
of the
17
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus, as then
amended or supplemented, and are not so described or of any statutes
or regulations that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, that are
not described as required.
(J) (1) Such counsel is of the opinion that the proxy statement
most recently filed by the Company pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as then amended or
supplemented, (except for financial statements and schedules and other
financial and statistical data included therein, as to which such
counsel need not express an opinion), complied when so filed as to
form in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder and (2) no facts
have come to the attention of such counsel to lead them to believe
that (except for the financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the proxy statement most recently filed pursuant
to the Exchange Act by the Company and incorporated by reference in
the Prospectus, when such part of Registration Statement became
effective, and as of the date such opinion is delivered, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx,
counsel for the Agents, covering the matters in subparagraphs (B), (C), (D)
and (F) (with respect to statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the Prospectus
Supplement), "Description of Debt Securities" (in the Basic Prospectus) and
"Plan of Distribution" (in the Prospectus Supplement and in the Basic
Prospectus)), and clauses (2), (3) and (4) of the last subparagraph of
paragraph (b)(i) above.
In giving the opinions referred to in paragraph (i) hereof, Howard,
Rice, Nemerovski, Canady, Xxxx & Rabkin, A Professional Corporation, may
rely on the opinion of Xxxxx Xxxx & Xxxxxxxx as to any matters governed
by the laws of New York, and in giving the opinion referred to in
paragraph (iii) hereof, Xxxxx Xxxx & Xxxxxxxx may rely on the opinion of
Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, A Professional
Corporation, as to any matters governed by laws of California. With
respect to the last subparagraph of paragraph (b)(i) above, Howard,
Rice, Nemerovski, Canady, Xxxx & Xxxxxx, A Professional Corporation, may
state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein
18
by reference), but are without independent check or verification, except
as specified. With respect to clauses (2), (3) and (4) of the last
subparagraph of paragraph (b)(i) above, Xxxxx Xxxx & Xxxxxxxx may state
that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
The opinion of Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, A
Professional Corporation, described in paragraph (b)(i) above shall be
rendered to the Agents at the request of the Company and shall so state
therein.
The opinion of the Office of Corporate Counsel of the Company described
in paragraph (b)(ii) above shall be rendered to the Agents at the
request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms Agreement,
on the corresponding Settlement Date, the relevant Agents shall have received a
certificate, dated the Commencement Date or such Settlement Date, as the case
may be, signed by an executive officer of the Company to the effect set forth in
subparagraph (a)(iii) above and to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before such
date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms Agreement,
on the corresponding Settlement Date, the Company's independent auditors shall
have furnished to the relevant Agents a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance satisfactory to such Agents containing statements and information of
the type ordinarily included in accountant's "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus, as then amended
or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
------------------------------------
19
(a) Each time the Registration Statement or Prospectus is amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), the Company will deliver or cause to be delivered forthwith to each
Agent a certificate signed by an executive officer of the Company, dated the
date of such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospectus as amended
or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
written opinions of (i) independent counsel for the Company and (ii) the Office
of Corporate Counsel for the Company. All such opinions shall be dated the date
of such amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the opinions
referred to in Sections 4(b)(i) and (ii), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinions. In lieu of such opinions, counsel last
furnishing such an opinions to an Agent may furnish to each Agent a letter to
the effect that such Agent may rely on such last opinions to the same extent as
though it were dated the date of such letter (except that statements in such
last opinions will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter.
6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Agent and
each person, if any, who controls such Agent within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Agent or any
such controlling person in connection with investigating or defending any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary
20
to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Agent furnished to the Company in writing by such Agent expressly for
use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx or, if Xxxxxx Xxxxxxx is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents that are indemnified parties, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for
21
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) 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 hand from the offering of such Notes or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and each Agent on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, 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 hand in
connection with the offering of such Notes shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by each Agent in respect thereof. The relative fault
of the Company on the one hand and of each Agent on the other hand 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 relates to information supplied by the Company or by such Agent
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Each Agent's
obligation to contribute pursuant to this Section 6 shall be several (in the
proportion that the principal amount of the Notes the sale of which by or
through such Agent gave rise to such losses, claims, damages or liabilities
bears to the aggregate principal amount of the Notes the sale of which by or
through any Agent gave rise to such losses, claims, damages or liabilities) and
not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
--- ----
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of
22
the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes referred to in paragraph (d) above that were offered and sold to the
public through such Agent 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Position of the Agents. In acting under this Agreement and in
----------------------
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal pursuant to a Terms Agreement), each Agent is acting
solely as agent of the Company and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Notes. An Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not have any liability to the
Company in the event any such purchase is not consummated for any reason. If
the Company shall default in its obligations to deliver Notes to a purchaser
whose offer it has accepted, the Company shall hold the relevant Agent harmless
against any loss, claim, damage or liability arising from or as a result of such
default and shall, in particular, pay to such Agent the commission it would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by the
-----------
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 11 and 14 shall survive; provided that if at the time of termination an offer
--------
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive
until such delivery has been made.
9. Representations and Indemnities to Survive. The respective
------------------------------------------
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or
23
any Terms Agreement will remain in full force and effect, regardless of any
termination of this Agreement or any such Terms Agreement, any investigation
made by or on behalf of an Agent or the Company or any of the officers,
directors or controlling persons referred to in Section 6 and delivery of and
payment for the Notes.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to Xxxxxx Xxxxxxx, will be mailed,
delivered or telefaxed and confirmed to Xxxxxx Xxxxxxx at 0000 Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager--Continuously Offered
Products (telefax number: 212-761-0780), with a copy to Xxxxxx Xxxxxxx at 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking
Information Center (telefax number: 212-761-0260), if sent to Goldman, Sachs,
will be mailed, delivered or telefaxed and confirmed to Xxxxxxx, Sachs at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Credit Department, Medium-
Term Notes (telefax number: 212-357-8680), if sent to CS First Boston, will be
mailed, delivered or telefaxed and confirmed to CS First Boston at 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxx (telefax
number: 212-325-8183), if sent to Xxxxxxx Xxxxxx, will be mailed, delivered or
telefaxed and confirmed to Xxxxxxx Xxxxxx at 120-30, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer (telefax number:
415-636-5436) or, if sent to the Company, will be mailed, delivered or telefaxed
and confirmed to the Company at 120-30, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Chief Financial Officer (telefax number: 415-636-
5436).
11. Successors. This Agreement and any Terms Agreement will inure to
----------
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if, but
----------
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent; provided that the Company may from time to time, on seven days
--------
prior written notice to the Agents but without the consent of any Agent, amend
this Agreement to add as a party hereto one or more additional firms registered
under the Exchange Act, whereupon each such firm shall become an Agent hereunder
on the same terms and conditions as the other Agents that are parties hereto.
The Agents shall sign any amendment or supplement giving effect to the addition
of any such firm as an Agent under this Agreement.
13. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed
--------------
in accordance with the internal laws of the State of New York.
24
15. Headings. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and each of you.
Very truly yours,
THE XXXXXXX XXXXXX CORPORATION
By
Name: Xxxxxxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By
----------------------------------
Name:
Title:
XXXXXXX, SACHS & CO.
By
----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By
----------------------------------
Name:
Title:
XXXXXXX XXXXXX & CO., INC.
By
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Executive Vice President, Chief Financial Officer
26
EXHIBIT A
THE XXXXXXX XXXXXX CORPORATION
MEDIUM-TERM NOTES, SERIES A
TERMS AGREEMENT
_________________, 200_
The Xxxxxxx Xxxxxx Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Re: Distribution Agreement dated _______ __, 2000
(the "Distribution Agreement")
-------------------------------------------------
We agree to purchase your Medium-Term Notes, Series A, having the
following terms:
[We agree to purchase, severally and not jointly, the principal
amount of Notes set forth below opposite our names:
Principal Amount
Name of Notes
---- ------------
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston
Corporation
Xxxxxxx Xxxxxx & Co., Inc.
Total....$
===============
The Notes shall have the following terms:]*
__________________________
* Delete if the transaction will not be syndicated.
All Notes: Fixed Rate Notes: Floating Notes:
--------- ----------------- ---------------
Principal Interest Base Rate:
Amount: Rate:
Purchase Index Amortization Maturity:
Price: Schedule:
Price to Spread (Plus or Multiplier:
Public: Minus):
Settlement Applicability of Annual Initial Interest
Date and Time: Spread Payments: Rate:
Place of Interest Payment Interest Reset
Delivery: Date(s): Dates:
Original Issue Interest Payment Maximum Interest
Date: Period: Rate:
Interest Accrual Minimum Interest
Date: Rate:
Maturity Calculation Agent:
Date:
Optional Repayment LIBOR
Date(s): Reuters/Telerate:
Optional Redemption
Date:
Initial Redemption
Date:
Initial Redemption
Percentage
Reduction:
Annual Redemption
Percentage
Reduction:
2
Ranking:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6, 9, 10, 11
and 14 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as _______________ may specify, to purchase the Notes which
such defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
--------
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to _______________ and the Company for the purchase of such Notes
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Agent or the Company. In
any such case either _______________ or the Company shall have the right to
postpone the Settlement Date but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.]**
This Agreement is subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(h), 6, 9, 11 and 14 of the Distribution Agreement shall survive for
the purposes of this Agreement.
______________________________
** Delete if the transaction will not be syndicated.
3
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: ________________
[NAME OF RELEVANT AGENT(S)]
By ______________________________
Title:
Accepted:
THE XXXXXXX XXXXXX CORPORATION
By ___________________________
Title:
4
EXHIBIT B
---------
THE XXXXXXX XXXXXX CORPORATION
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes, Series A (the "Notes"), on a continuous
basis by The Xxxxxxx Xxxxxx Corporation (the "Company") pursuant to the
Distribution Agreement, dated as of ______ __, 2000 (the "Distribution
Agreement") among the Company and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx,
Sachs & Co., Credit Suisse First Boston Corporation, and Xxxxxxx Xxxxxx & Co.,
Inc. (the "Agents"). The Notes may be issued as senior indebtedness (the
"Senior Notes") or senior subordinated indebtedness (the "Senior Subordinated
Notes") of the Company, and as used herein the term "Notes" includes the Senior
Notes and the Senior Subordinated Notes. The Senior Notes will be issued
pursuant to the provisions of a senior indenture dated as of July 15, 1993, as
amended (the "Senior Debt Indenture"), between the Company and The Chase
Manhattan Bank (formerly Chemical Bank) ("Chase"), as trustee. The Senior
Subordinated Notes will be issued pursuant to the provisions of a senior
subordinated indenture dated as of July 15, 1993, as amended (the "Senior
Subordinated Debt Indenture"), between the Company and Chase, as trustee. The
Senior Debt Indenture and the Senior Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures." In the Distribution Agreement, the Agents have agreed to use
reasonable efforts to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
sold through the Agents, as agents of the Company. An Agent, as principal, may
also purchase Notes for its own account, and in connection with such purchase
the Company and such Agent will enter into a terms agreement (a "Terms
Agreement"), as contemplated by the Distribution Agreement. The administrative
procedures explained below will govern the issuance and settlement of any Notes
purchased by an Agent, as principal, unless otherwise specified in the
applicable Terms Agreement.
Chase will be the Registrar, Calculation Agent, Authenticating Agent
and Paying Agent for both the Senior Notes and the Senior Subordinated Notes and
will perform the duties specified herein. Each Note will be represented by
either a Global Security (as defined below) delivered to Chase, as custodian for
The Depository Trust Company ("DTC"), and recorded in
the book-entry system maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the holder thereof or a person designated by such holder (a
"Certificated Note"). Except as set forth in the Indentures, an owner of a Book-
Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC'S
operating procedures. Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless otherwise defined
herein, terms defined in the Indentures, the Notes or any Prospectus Supplement
relating to the Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Chase will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and Chase to DTC, dated as of August 3, 1993 (the "Letter of
Representation"), as amended, and a Medium-Term Note Certificate Agreement
between Chase and DTC, dated as of December 2, 1988 (the "MTN Certificate
Agreement") , and its obligations as a participant in DTC, including DTC's Same-
Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000
principal amount of all such Notes that have the same
Original Issue Date, Maturity Date and other terms.
Each Global Security will be dated and issued as of the
date of its authentication by Chase. Each Global
Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security
(or any portion thereof), its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security or
Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor
Global Security), regardless of the date of
authentication of such subsequently issued Global
Security.
2
Book-Entry Notes may be payable only in U.S. dollars.
No Global Security will represent any Certificated
Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
U.S. $1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000. Global Securities
will be denominated in principal amounts not in excess
of U.S. $200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be issued to represent each U.S.
$200,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
issued to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted
of Pricing by or on behalf of the Company, the Company will
Supplement: prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note. The Company (i) will
arrange to file 10 copies (or, if participating in the
Commission's Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX"), such number of copies as is
required by the rules and regulations of the Commission
governing XXXXX filings then in effect) of such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not later
than 11:00 A.M. on the Business Day following the trade
date, deliver the number of copies of such Pricing
Supplement to the relevant Agent at the address listed
below as such Agent shall request and (iii) will, on
the relevant Agent's behalf, promptly file five copies
of such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the "NASD").
The relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
Pricing Supplements shall be delivered as follows:
If to Xxxxxx Xxxxxxx & Co. Incorporated, at:
Xxxxxx Xxxxxxx & Co.
Incorporated 0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
3
Attn.: Medium-Term Note Trading Desk
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Xxxxxxx, Sachs & Co., at:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Credit Department -Medium Term Notes
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Credit Suisse First Boston Corporation, at:
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All offers accepted by the
Company will be settled on the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on another
day, which shall be no earlier than the next Business
Day.
Settlement Procedures with regard to each Book-Entry Note sold by
Procedures: the Company to or through an Agent (unless otherwise
specified pursuant to a Terms Agreement and reasonably
acceptable to Chase) shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note and
4
of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
Interest Rate, whether such Note will pay interest
annually or semiannually and whether such Note is
an Amortizing Note, and, if so, the amortization
schedule, or, in the case of a Floating Rate Book-
Entry Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s), Interest
Payment Period, Calculation Agent, Base Rate (and,
if LIBOR, Reuters or Telerate), Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any) and Maximum Interest Rate (if any).
4. Redemption or repayment provisions (if any).
5. Ranking.
6. Settlement date and time (Original Issue Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission (if any) determined as provided
in the Distribution Agreement.
10. Any other applicable terms.
B. The Company will advise Chase by telephone or electronic
transmission (confirmed in writing at any time on the
same date) of the information set forth in Settlement
Procedure "A" above and of the name of the applicable
Agent. The Company will then assign a CUSIP number to the
Global Security representing such Note and will notify
Chase and the relevant Agent of such CUSIP number by
5
telephone as soon as practicable.
X. Xxxxx will enter a pending deposit message through DTC's
Participant Terminal System, providing the following
settlement information to DTC, the relevant Agent and
Standard & Poor's Corporation:
1. The information set forth in Settlement Procedure
"A".
2. The Initial Interest Payment Date for such Note, the
number of days by which such date succeeds the
related DTC Record Date (which in the case of
Floating Rate Notes which reset daily or weekly,
shall be the date five calendar days immediately
preceding the applicable Interest Payment Date and,
in the case of all other Notes, shall be the Record
Date as defined in the Note) and, if known, the
amount of interest payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global Security representing
such Note.
4. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
6. The number of Participant accounts to be maintained
by DTC on behalf of the relevant Agent and Chase.
X. Xxxxx will complete and authenticate the Global Security
representing such Note.
E. DTC will credit such Note to Chase's participant
account at DTC.
X. Xxxxx will enter an SDFS deliver order through DTC's
Participant Terminal System instructing
6
DTC to (i) debit such Note to Chase's participant account
and credit such Note to the relevant Agent's participant
account and (ii) debit such Agent's settlement account
and credit Chase's settlement account for an amount equal
to the price of such Note less such Agent's commission
(if any). The entry of such a deliver order shall
constitute a representation and warranty by Chase to DTC
that (a) the Global Security representing such Book-Entry
Note has been issued and authenticated and (b) Chase is
holding such Global Security pursuant to the MTN
Certificate Agreement.
G. Unless the relevant Agent is the end purchaser of such
Note, such Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to
debit such Note to such Agent's participant account and
credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to debit
the settlement accounts of such Participants and credit
the settlement account of such Agent for an amount equal
to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be
settled in accordance with SDFS operating procedures in
effect on the settlement date.
X. Xxxxx will credit to the account of the Company
maintained at Citibank, N.A., New York, New York, in
immediately available funds, the amount transferred to
Chase in accordance with Settlement Procedure "F".
J. Unless the relevant Agent is the end purchaser of such
Note, such Agent will confirm the purchase of such Note
to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such
purchaser.
K. Monthly, Chase will send to the Company a statement
setting forth the principal amount of Notes outstanding
as of that date under the
7
Indentures and setting forth a brief description
of any sales of which the Company has advised
Chase that have not yet been settled.
Settlement For sales by the Company of Book-Entry Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement and reasonably acceptable to Chase)
for settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "J" set forth
above shall be completed as soon as possible but not
later than the respective times in New York City set
forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 2:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I--J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B"
and "C" shall be completed as soon as practicable but
no later than 11:00 A.M., 12:00 and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12:00
and 2:00 P.M., respectively, on the first Business Day
before the settlement date. Settlement Procedure "H"
is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, Chase, after receiving notice from the
Company or the relevant Agent no later than 12:00 Noon
on the Business Day immediately preceding the
scheduled settlement date, will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day
8
immediately preceding the scheduled settlement date.
Failure to If Chase fails to enter an SDFS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "F", Chase may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable
a withdrawal message instructing DTC to debit such
Note to Chase's participant account, provided that
Chase's participant account contains a principal
amount of the Global Security representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Security, Chase will xxxx such Global Security
"cancelled," make appropriate entries in Chase's
records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global
Security shall, in accordance with the procedures of
the CUSIP Service Bureau of Standard & Poor's
Corporation, be cancelled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, Chase will
exchange such Global Security for two Global
Securities, one of which shall represent such Book-
Entry Note or Notes and shall be cancelled immediately
after issuance and the other of which shall represent
the remaining Book-Entry Notes previously represented
by the surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures
"F" and "G", respectively. Upon receipt of notice of
such event, Chase will deliver the withdrawal message
and take the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect.
9
In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to
have been represented by a Global Security, Chase will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a
Global Security representing the Book-Entry Notes to
be represented by such Global Security and will make
appropriate entries in its records.
10
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Chase will serve as Registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by Chase.
Each Certificated Note will bear an Original
Issue Date, which will be (i) with respect to
an original Certificated Note (or any portion
thereof), its original issuance date (which
will be the settlement date) and (ii) with
respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note,
the original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Preparation If any offer to purchase a Certificated Note
of Pricing Supplement: is accepted by or on behalf of the Company,
the Company will prepare a Pricing Supplement
reflecting the terms of such Note. The Company
(i) will arrange to file 10 copies (or, if
participating in XXXXX, such number of copies
as is required by the rules and regulations of
the Commission governing XXXXX filings then in
effect) of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than 11:00 A.M. on the Business Day
following the trade date, deliver the number of
copies of such Pricing Supplement to the
relevant Agent at the address set-forth above
as such Agent shall request and (iii) will, on
the relevant Agent's behalf, promptly file five
copies of such Pricing Supplement with the
NASD. The relevant Agent will cause such
Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the relevant Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached
(other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery of
such Note against receipt of immediately
available funds
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shall constitute "settlement" with respect to
such Note. All offers accepted by the Company
will be settled on or before the third Business
Day next succeeding the date of acceptance
pursuant to the timetable for settlement set
forth below, unless the Company and the
purchaser agree to settlement on another date.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company to or
through an Agent (unless otherwise specified
pursuant to a Terms Agreement and reasonably
acceptable to Chase) shall be as follows:
A. The relevant Agent will advise the Company
by telephone that such Note is a
Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the Interest Rate,
whether such Note will pay interest
annually or semiannually and whether
such Note is an Amortizing Note and,
if so, the amortization schedule, or,
in the case of a Floating Rate
Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Date(s), Interest
Payment Period, Calculation Agent,
Base Rate (and, if LIBOR, Reuters or
Telerate), Index Maturity, Interest
Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any).
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7. Redemption or repayment provisions
(if any).
8. Ranking.
9. Settlement date and time (Original
Issue Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
13. Denominations.
14. Any other applicable terms.
B. The Company will advise Chase by telephone
or electronic transmission (confirmed in
writing at any time on the same date) of
the information set forth in Settlement
Procedure "A" above and of the name of the
applicable Agent.
C. The Company will have delivered to Chase a
pre-printed four-ply packet for such Note,
which packet will contain the following
documents in forms that have been approved
by the Company, the relevant Agent and
Chase:
1. Note with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
X. Xxxxx will complete such Note and
authenticate such Note and deliver it
(with the confirmation) and Stubs One and
Two to the relevant Agent at the address
set-forth below, and such Agent will
acknowledge receipt of the Note by
stamping or otherwise marking Stub One and
returning it to Chase. In the event that
the instructions given by such Agent for
payment to the account of the Company are
revoked, the Company will as
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promptly as possible wire transfer to the
account of such Agent an amount of
immediately available funds equal to the
amount of such payment made.
Certificated Notes shall be delivered as follows:
If to Xxxxxx Xxxxxxx & Co. Incorporated, at:
Bank of New York
Dealer Clearance Department
0 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: For the Account of
Xxxxxx Xxxxxxx & Co. Incorporated
If to Xxxxxxx, Sachs & Co., at:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Bond Operations
Telephone: (000) 000-0000
If to Credit Suisse First Boston Corporation, at:
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier:(000) 000-0000
If to Xxxxxxx Xxxxxx & Co., Inc., at:
The Xxxxxxx Xxxxxx Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
E. Unless the relevant Agent is the end purchaser
of such Note, such Agent will deliver such Note
(with confirmation) to the customer against
payment in immediately available funds. Such
Agent will obtain the acknowledgment of receipt
of such Note by retaining Stub Two.
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X. Xxxxx will send Stub Three to the Company by
first-class mail. Periodically, Chase will also
send to the Company a statement setting forth
the principal amount of the Notes outstanding
as of that date under each Indenture and
setting forth a brief description of any sales
of which the Company has advised Chase that
have not yet been settled.
Settlement For sales by the Company of Certificated Notes
Procedures to or through an Agent (unless otherwise
Timetable: specified pursuant to a Terms Agreement and
reasonably acceptable to Chase), Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times in New
York City set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept delivery of
to Settle: and make payment for any Certificated Note, the
relevant Agent will notify the Company and Chase by
telephone and return such Note to Chase. Upon
receipt of such notice, the Company will
immediately wire transfer to the account of such
Agent an amount equal to the amount previously
credited thereto in respect of such Note. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other
than a default by such Agent in the performance of
its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse such Agent or Chase, as appropriate, on
an equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of the Company. Immediately upon
receipt of the Certificated Note in respect of
which such failure occurred, Chase will xxxx such
Note "cancelled," make appropriate entries in
Chase's records and send such Note to the Company.
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