Exhibit 1.01
Commercial Credit Company
Medium-Term Notes, Eighth Series
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 12th Floor
New York, New York 10285-1200
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, North Tower
10th Floor
New York, New York 10281-1310
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0060
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
August 21, 1997
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Ladies and Gentlemen:
Commercial Credit Company, a Delaware corporation (the "Company"),
confirms its agreement with each of the Agents with respect to the issue and
sale by the Company of its Medium-Term Notes, Eighth Series (the "Notes"). The
Notes are to be issued under an Indenture dated as of December 1, 1986, as
supplemented by the First Supplemental Indenture dated as of June 13, 1990 (as
so supplemented or as it may from time to time be further supplemented or
amended by one or more indentures supplemental thereto, the "Indenture"),
between the Company and Citibank, N.A., as trustee (the "Trustee"). The Notes
will have the maturities, interest rates (whether fixed or floating), redemption
provisions and other terms set forth in a pricing supplement to the Prospectus
referred to below. The Notes may be denominated in U.S. dollars, foreign
currencies or foreign composite currency units (the "Specified Currency") as may
be specified in the applicable pricing supplement.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes to any Agent acting as
principal at a discount for its own account or for resale to one or more
investors or other dealers and the Company's right to sell Notes directly to
investors on its own behalf or through other agents (provided that any other
agent will execute an agreement with the Company which contains substantially
the same terms and conditions contained herein and that the Company will notify
each Agent of its agreement with any other agents, dealers or underwriters), the
Company hereby appoints each Agent as an agent of the Company for the purpose of
soliciting offers to purchase the Notes. In addition, an Agent may also
purchase Notes as principal and the Company will enter into a Terms Agreement
(referred to below) relating to such sale in accordance with the provisions of
Section l(b) hereof. For the purposes of this Agreement, the term "Agent" shall
refer to any of Xxxxx Xxxxxx Inc., Xxxxxx Brothers, Xxxxxx Brothers Inc.
(including Xxxxxx Government Securities Inc.); Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated; X.X. Xxxxxx Securities Inc.; and
Xxxxxx Xxxxxxx & Co. Incorporated, and the term "Agents" shall refer to all of
the above collectively.
1. SOLICITATIONS BY THE AGENTS OF OFFERS TO PURCHASE; PURCHASES AS
PRINCIPAL.
(a) SOLICITATIONS AS AGENTS. Following the Commencement Date
(referred to below), the Company shall notify the Agents from time to time as to
the commencement of a period during which the Notes may be offered and sold by
any Agent (each period, commencing with such a notification and ending at such
time as the authorization for offers and sales through any Agents shall have
been suspended by the Company or the Agents as provided hereunder, being herein
referred to as an "Offering Period"). 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 its reasonable best efforts to solicit offers to
purchase the Notes during each Offering Period upon the terms and conditions set
forth in the Prospectus as then amended and supplemented. The Company reserves
the right, in its sole discretion, to suspend solicitation of purchases of the
Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions from the Company, the Agents will forthwith suspend
solicitation of
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purchases from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay each Agent at the time of delivery of and
payment for the Notes, as consideration for soliciting the sale of each Note,
unless otherwise agreed to, a commission equal to the percentage set forth on
Schedule 1 hereto of the price to the public of each Note sold by the Company as
the result of a solicitation by such Agent. Without the prior approval of the
Company, an Agent (acting on an agency basis) may not reallow any portion of the
commission payable pursuant hereto to dealers or purchasers in connection with
the offer and sale of any Notes.
The Agents are authorized to solicit orders for the Notes only in
principal amounts of $1,000 or any amount in excess thereof which is a multiple
of $1,000 or, in the case of Notes denominated in a Specified Currency other
than U.S. dollars, in the denominations set forth in the applicable pricing
supplement, at a purchase price equal to 100% of the principal amount of the
Notes, unless otherwise mutually agreed upon by the purchaser and the Company
and specified in the applicable pricing supplement. Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer or
indication of interest to purchase Notes received by such Agent as Agent. The
Company shall have the sole right to accept offers to purchase the Notes and may
reject any such offer in whole or in part. Each Agent shall have the right to
reject, in its discretion reasonably exercised, any offer received by it to
purchase the Notes, in whole or in part, and any such rejection shall not be
deemed a breach of its agreements contained herein. In soliciting offers to
purchase the Notes in their capacity as agents of the Company, the Agents are
acting individually and not jointly and are acting solely as agents for the
Company, and not as principal, and do not assume any obligation toward or
relationship of agency or trust with any purchaser of the Notes (other than any
such obligation or relationship which the Agent assumes independently of this
Agreement). The Agents shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by the Agents and accepted by the Company, but the Agents shall not
have any liability to the Company in the event any such purchase is not
consummated for any reason. Under no circumstances will the Agents be obligated
to purchase any Notes for their own account except pursuant to subparagraph (b)
below.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement and such
Agent and 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" may take the form of an exchange of any form of written
telecommunication or oral communication followed by written confirmation or
telecommunication between the Agent and the Company and shall be with respect to
such information (as applicable) as is specified in Exhibit A hereto. The
Agents may utilize dealer groups and reallow commissions.
An Agent's commitment to purchase Notes as principal 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 agreement by such Agent to purchase Notes as principal shall
specify the principal amount of Notes to be purchased by the
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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 agreement
shall also specify any requirements for officers' certificates, opinions of
counsel and letters from the independent public accountants 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. Each date of delivery of and payment for Notes to
be purchased by an Agent as principal or as agent or by any other purchaser is
referred to herein as a "Settlement Date."
Upon the Company's request, each Agent will notify the Company either
orally or in writing (as specified by the Company) of the aggregate principal
amount of Notes held by such Agent as principal purchased pursuant to a Terms
Agreement and this Agreement.
(c) PROCEDURES. The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Medium-Term Notes Administrative Procedures attached hereto as Exhibit B
(the "Procedures"). The 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
this Agreement shall be delivered at the office of Xxxxx Xxxxxxxxxx, counsel for
the Agents, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, X.X. 10019-6092, on
August 21, 1997 (the "Commencement Date").
2. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date:
(a) The Company meets the requirements for use of Form S-3 under
the Act. A Registration Statement (File No. 333-28847) in respect of
$650,000,000 aggregate amount of debt securities of the Company, including the
Notes, has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendments
thereto, each in the form heretofore delivered or to be delivered to the Agents,
excluding exhibits to such registration statement but including all documents
incorporated by reference therein, has been declared effective by the Commission
in such form; no other document with respect to such registration statement
(other than a document incorporated by reference therein) has heretofore been
filed or transmitted for filing with the Commission; and no stop order
suspending the effectiveness of the registration statement has been issued and
no proceeding for that purpose has been instituted or threatened by the
Commission (any preliminary prospectus included in the Registration Statement
(as defined herein) or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus"); the
registration statement, at the time of filing, at the time it became effective
and, at the date of this Agreement, meets the requirements set forth in Rule 415
under the Act and complies in all other material respects with said Rule; the
various parts of the
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registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained therein at the time such
part of such registration statement became effective but excluding the Statement
of Eligibility under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), pertaining to the Indenture (the "Form T-1"), as amended at the
time such part became effective, being hereinafter collectively called the
"Registration Statement;" the prospectus included in the Registration Statement
(including the prospectus supplement) relating to the Notes, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement being hereinafter called
the "Prospectus;" any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of the
particular issue of the Notes (a "Pricing Supplement"), shall be deemed to refer
to and include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to include any report of the
Company filed pursuant to the Exchange Act after the effective date of such
Registration Statement that is incorporated by reference in such Registration
Statement; and any reference to the Prospectus as amended or supplemented shall
be deemed to refer to and include the Prospectus as amended or supplemented in
relation to the Notes sold pursuant to this Agreement, in the form in which it
is filed with the Commission pursuant to Rule 424(b) under the Act, including
any documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission promulgated thereunder, and any further documents
so filed and incorporated by reference in the Prospectus, or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder;
(c) The Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto, and the Indenture, conform or will
conform in all material respects with the applicable requirements of the Act and
the Trust Indenture Act, and the respective rules and regulations of the
Commission thereunder.
(d) The Registration Statement, as amended as of any time, did
not and will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading and the Prospectus, as amended and
supplemented as of any such time, did not and will not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the
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statements made, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Form T-1 under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance upon, and
in conformity with, information furnished in writing to the Company by or on
behalf of any Agent specifically for use in the Registration Statement and the
Prospectus or any amendment thereof or supplement thereto.
(e) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will constitute valid and binding obligations of
the Company, enforceable in accordance with their respective terms and entitled
to the benefits of the Indenture (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether such enforceability is considered in a proceeding in
equity or at law); the Indenture has been duly authorized by the Company and
qualified under the Trust Indenture Act; and the Indenture conforms to the
descriptions thereof in the Prospectus as amended or supplemented to relate to
such issuance of Notes.
(f) Since the date of the most recent financial statements
included in the Prospectus, as amended or supplemented, there has not been any
material adverse change in the consolidated financial condition or results of
operations of the Company and its subsidiaries, taken as a whole which is not
discussed in the Prospectus, as amended or supplemented.
(g) The Company is in compliance with the provisions of Section
517.075 of the Florida Statutes and the regulations thereunder, relating to the
disclosure of doing business with Cuba.
3. AGREEMENTS OF THE COMPANY. The Company agrees with each Agent that:
(a) At any time during an Offering Period or during the time a prospectus
relating to the Notes is required to be delivered under the Act: (i) prior to
amending or supplementing the Registration Statement or the Prospectus, the
Company will furnish each of the Agents and the Agents' counsel with a copy of
each proposed amendment or supplement (other than an amendment or supplement to
be made pursuant to incorporation by reference of a document filed under the
Exchange Act, or a Pricing Supplement, or an amendment or supplement relating
solely to an offering of debt securities other than the Notes); and (ii) prior
to filing any documents under the Exchange Act to be incorporated by reference
into the Prospectus (other than documents relating solely to an offering of debt
securities other than the Notes), the Company will notify each of the Agents and
the Agents' counsel orally of the general subject matter of such filing and will
furnish copies of such filings to each Agent and the Agents' counsel
simultaneously with, or as promptly as practicable after, the filing of such
documents with the Commission. Subject to the foregoing sentence, the Company
will promptly cause the Prospectus together with each amendment thereof or
supplement thereto to be mailed or otherwise transmitted to the Commission for
filing pursuant to Rule 424(b) by an appropriate
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method or will promptly cause the Prospectus together with each amendment
thereof or supplement thereto to be filed with the Commission pursuant to said
Rule. If the Prospectus is amended or supplemented (other than a Pricing
Supplement or an amendment or supplement relating solely to an offering of debt
securities other than the Notes), the Agents shall be furnished with such
information relating to such filing as they may reasonably request, and the
Agents shall not be obligated to solicit offers to purchase Notes so long as
they are not reasonably satisfied that such amendment or supplement complies in
all material respects with the provisions of the Act and the Exchange Act. At
any time during an Offering Period or during the time a prospectus relating to
the Notes is required to be delivered under the Act, the Company will promptly
advise the Agents of (i) the filing of any amendment or supplement to the
Prospectus (other than a Pricing Supplement or an amendment or supplement
relating solely to an offering of debt securities other than the Notes), (ii)
the filing or effectiveness of any amendment to the Registration Statement,
(iii) the receipt by the Company of comments from the Commission relating to or
requests by the Commission for any amendment of the Registration Statement or
any amendment of or supplement to the Prospectus or for any additional
information, (iv) 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) 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 its reasonable best
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. Upon the Agents' request, the Company will within a reasonable time
inform the Agents of the aggregate principal amount of Notes registered under
the Registration Statement that remain unissued.
(b) Within the time during which a prospectus relating to the
Notes is required to be delivered under the Act, the Company will comply with
all requirements imposed upon it by the Act, as now and hereafter amended, and
by the rules and regulations of the Commission thereunder, as from time to time
in force, so far as necessary to permit the continuance of sales of or dealings
in the Notes as contemplated by the provisions hereof and the Prospectus. If
during such period any event occurs 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 a material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if, in the opinion
of the Company, during such period it is necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the Act, the Company
will promptly notify the Agents to suspend the solicitation of offers to
purchase the Notes in their capacity as Agents and to cease sales of any Notes
they may then own as principals and, to the extent required under the provision
in the last sentence of this subsection (b), the Company will promptly amend or
supplement such Registration Statement or the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such compliance.
If such amendment or supplement, and any documents, certificates, opinions and
letters furnished to the Agents pursuant to subsections (j), (k) and (l) of this
Section 3 in connection with the preparation and filing of such amendment or
supplement are reasonably satisfactory in all respects to an Agent, upon the
filing of such amendment or supplement with the Commission or effectiveness of
an amendment to such Registration Statement, such Agent will resume solicitation
of offers to purchase Notes hereunder. Notwithstanding the foregoing, the
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Company shall not be required to comply with the provisions of subsection (b) of
this Section 3 during any period from the time the Agents shall have been
notified to suspend the solicitation of offers to purchase the Notes in their
capacity as Agent (whether under this subsection (b) or otherwise under this
Agreement) to the time the Company shall determine that solicitation of offers
to purchase the Notes should be resumed; provided that if any Agent holds any
Notes as principal purchased pursuant to a Terms Agreement or otherwise pursuant
to this Agreement, the Company shall comply with the provisions of subsection
(b) of this Section 3 during the period when a Prospectus is required to be
delivered pursuant to the Act.
(c) The Company will comply, in a timely manner, with all
applicable requirements under the Exchange Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act and, if then applicable, of the Company's proxy statements
pursuant to Section 14 of the Exchange Act.
(d) The Company will use its best efforts to qualify the Notes
for sale under the securities laws of such jurisdictions as the Agents
reasonably designate, to maintain such qualifications in effect so long as
required for the distribution of the Notes and, if requested by the Agents, to
arrange for the determination of the legality of the Notes for purchase by
institutional investors, except that the Company shall not be required in
connection therewith to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so subject.
(e) The Company will furnish to the Agents copies of the
Registration Statement and the Prospectus (including all documents incorporated
by reference therein), and all amendments of and supplements to the Registration
Statement or the Prospectus which are filed with the Commission during the
period in which a prospectus relating to the Notes is required to be delivered
under the Act (including all documents filed by an amendment or supplement with
the Commission during such period which are deemed to be incorporated by
reference therein), in each case in such quantities as the Agents may from time
to time reasonably request.
(f) So long as any of the Notes are outstanding, the Company
agrees to furnish to the Agents, (i) copies of any reports sent generally to
holders of the Company's publicly held securities and (ii) in accordance with
the terms hereof, all reports and financial statements filed by or on behalf of
the Company with the Commission or any national securities exchange.
(g) The Company will make generally available to its security
holders and to the Agents as soon as practicable, but in any event not later
than 15 months after the end of the Company's current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month period
beginning after the date upon which any amendment of or supplement to the
Prospectus (other than a Pricing Supplement or an amendment or supplement
relating solely to an offering of debt securities other than the Notes) is filed
pursuant to Rule 424 under the Act, which shall satisfy the provisions of
Section 11(a) of the Act.
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(h) The Company shall, whether or not any sale of Notes is
consummated or this Agreement is terminated, pay all expenses incident to the
performance of its obligations under this Agreement and under any Terms
Agreement, including, without limitation, the fees and disbursements of its
accountants and counsel, the cost of printing (or other production) and delivery
of the Registration Statement and the Prospectus, all amendments thereof and
supplements thereto, the Indenture, and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements (including reasonable fees of counsel) incurred in
connection with the qualification of the Notes for sale and determination of
eligibility for investment of the Notes under the securities or Blue Sky laws of
such jurisdictions as the Agents may designate, the fees and disbursements of
the Trustee, the fees of any agency that rates the Notes, the fees and expenses
in connection with any listing of the Notes on the New York Stock Exchange, Inc.
(the "New York Stock Exchange") or such other securities exchange agreed to in
writing by the Company, the fees and expenses incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and the
reasonable fees and disbursements of Xxxxx Xxxxxxxxxx, as counsel for the
Agents, or other counsel reasonably satisfactory to both the Agents and the
Company, and such other expenses, including, without limitation, advertising
expenses as may be agreed upon by the Agents and the Company; PROVIDED, HOWEVER,
that with respect to any purchase of Notes by the Agent as principal pursuant to
a Terms Agreement and with respect to which Xxxxx Xxxxxxxxxx or other counsel is
employed by such Agent as counsel to such Agent, the fees and disbursements of
Xxxxx Xxxxxxxxxx or such other counsel to such Agents shall not be paid by the
Company.
(i) During the term of this Agreement, 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 Prospectus, any amendments or supplements thereto,
the Indenture, the Notes, this Agreement, the 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 and shall promptly notify
the Agents orally, followed by written notice, of any downgrading, or of its
receipt of any notice of any intended downgrading, or of notice of a change that
does not indicate the direction of the possible change, in the rating accorded
any of the Company's securities by Xxxxx'x Investor Service or Standard & Poor's
Corporation or, if one of them no longer rates the securities of the Company,
another "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act.
(j) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than a Pricing Supplement or amendment or
supplement relating solely to an offering of debt securities other than the
Notes), including each time an Annual Report on Form 10-K, a Quarterly Report on
Form 10-Q, or a Report on Form 8-K (but with respect to a Report on Form 8-K,
only if the Agents so request within a reasonable time after its filing) filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus, the Company will deliver or cause to be delivered forthwith to the
Agents a certificate of the Company signed by the Chairman of the Board, any
Vice Chairman, the President or any Vice President and by the principal
financial or accounting officer of the Company (or another officer or officers
acceptable to the Agents), dated the date of the effectiveness of such amendment
or the date of filing with the Commission of such supplement or document, as the
case may be, in form reasonably
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satisfactory to the Agents, to the effect that the statements contained in the
certificate referred to in Section 4(b)(iii) that was last furnished to the
Agents (either pursuant to Section 4(b)(iii) or pursuant to this Section 3(j))
are true and correct at the time of the effectiveness of such amendment or the
time of filing of such supplement or document, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement, as amended at the time of effectiveness of
such amendment, and to the Prospectus, as amended and supplemented at the date
of such certificate) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 4(b)(iii) but modified, if
necessary, to relate to the Registration Statement, as amended at the time of
the effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such certificate.
(k) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than a Pricing Supplement or an amendment or
supplement relating solely to an offering of debt securities other than the
Notes), including each time an Annual Report on Form 10-K, a Quarterly Report on
Form 10-Q or a Report on Form 8-K (but with respect to a Report on Form 8-K,
only if the Agents so request within a reasonable time after its filing) filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus, the Company shall furnish to or cause to be furnished forthwith to
the Agents the written opinion of the General Counsel of the Company or other
counsel reasonably satisfactory to the Agents dated the date of the
effectiveness of such amendment or the date of filing with the Commission of
such supplement or document, as the case may be, in form reasonably satisfactory
to the Agents, to the effect set forth in Exhibit C hereto. In lieu of such
opinion, counsel last furnishing such an opinion to the Agents may furnish to
the Agents a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it were dated the date of such letter and
authorizing reliance on such last opinion (except that statements in such last
opinion will be deemed to relate to the Registration Statement, as amended at
the time of the effectiveness of such amendment, and to the Prospectus, as
amended and supplemented at the date of such letter).
(l) Each time that the Registration Statement or the Prospectus
is amended or supplemented to set forth amended or supplemental financial
information (other than a Pricing Supplement or any amendment or supplement
relating solely to an offering of debt securities other than the Notes)
including each time an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Report on Form 8-K (but with respect to a Report on Form 8-K only if
the Agents so request within a reasonable time after its filing) filed under the
Act or the Exchange Act is incorporated by reference into the Prospectus to set
forth financial information included in or derived from the Company's
consolidated financial statements or accounting records as of the end of the
most recent fiscal quarter or fiscal year, the Company shall cause KPMG Peat
Marwick LLP, its independent certified public accountants, to furnish the Agents
a letter within three business days following the date of the effectiveness of
such amendment or the date of filing of such supplement or document, as the case
may be (provided that in the event any Settlement Date falls within such three
business day period, such letter shall be delivered on or prior to such
Settlement Date), in form satisfactory to the Agents and of the same tenor as
the letter referred to in Section 4(b)(iv) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the date
of such letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting
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records of the Company; PROVIDED, that if the Registration Statement or the
Prospectus is amended or supplemented solely to include or incorporate by
reference financial information with respect to a fiscal quarter, KPMG Peat
Marwick LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement.
(m) Each acceptance by the Company of an offer for the purchase
of Notes and each sale of Notes to an Agent as principal shall be deemed to be
an affirmation that the representations and warranties of the Company contained
in or made pursuant to this Agreement are true and correct in all material
respects at the time of such acceptance or sale, as the case may be, as though
made at and as of such time, and an undertaking that such representations and
warranties will be true and correct in all material respects at the time of
delivery to the purchaser or his agent, or the Agent or Agents, or an Agent as
principal, of the Notes relating to such acceptance, as the case may be, as
though made at and as of each such time, (and it is understood that such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended and supplemented to each such time).
(n) Anything to the contrary in subsections (i), (j), (k) and
(l) of this Section 3 notwithstanding, if, at the time of any required notice,
amendment or supplement to the Registration Statement or the Prospectus, the
Company shall have instructed the Agents to suspend solicitation of offers to
purchase the Notes in their capacity as Agents of the Company and the Agents do
not then hold any Notes acquired by them as principal pursuant to a Terms
Agreement, the Company shall not be obligated to furnish or cause to be
furnished to the Agents any notice, certificate, opinion or letter otherwise
required until such time as it shall determine that solicitation of offers to
purchase the Notes should be resumed; and PROVIDED FURTHER that, prior to
resuming such solicitation the Agents shall be entitled to receive any such
notices, certificates, opinions or letters not previously furnished, accurate as
of the date of such notice, certificate, opinion or letter.
4. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. Each of the Agents'
obligations to solicit offers to purchase Notes as agents of the Company, each
of the Agents' obligations to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes from the Company will be subject to the accuracy in all material respects
of the representations and warranties on the part of the Company herein
contained, 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 each of the
Agents' obligations to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of each of the Agents' 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 purchase) and (in each case) to the
following additional conditions precedent when and as specified:
(a) On the corresponding Settlement Date:
(i) There shall not have occurred any material adverse change in
the financial condition, earnings or business of the Company and its
subsidiaries, taken as
11
a whole, from that set forth in the Registration Statement, as amended or
supplemented, that in the relevant Agent's judgment, makes it impracticable
to market the Notes on the terms and in the manner contemplated in the
Prospectus except, in the case of any purchase of Notes by an Agent as
principal, as disclosed to the relevant Agent in writing by the Company
before it accepted the offer to purchase such Notes.
(ii) There shall not have occurred any (A) suspension or
material limitation in trading of securities generally on the New York
Stock Exchange, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, or any setting of minimum prices
for trading on any such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market, (B) declaration of a general moratorium on commercial banking
activities in New York by either federal or New York state authorities or
(C) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency that, in the
relevant Agent's judgment, is material and adverse and, in the case of any
of the events described in clauses (ii)(A) through (C) such event, makes
it, in the relevant Agent's judgment, impracticable to market the Notes on
the terms and in the manner contemplated by the Prospectus, as amended or
supplemented, except, in the case of any purchase of Notes by an Agent as
principal, for any such event occurring before the Company accepted the
offer to purchase such Notes.
(iii) There shall not have been any downgrading, nor any notice
given of any intended downgrading, in the rating accorded any of the
Company's securities by Xxxxx'x Investor Service or Standard & Poor's
Corporation or, if one of them no longer rates the securities of the
Company, another "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the Act,
except, in the case of any purchase of Notes by an Agent as principal, as
disclosed to the relevant Agent in writing by the Company before it
accepted the offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any agreement
by an Agent to purchase Notes as principal, on the corresponding Settlement
Date:
(i) The Company shall have furnished to the Agents the
opinion of the General Counsel of the Company (or other counsel for the
Company reasonably acceptable to the Agents) on the Commencement Date, and,
on the Settlement Date will furnish the opinion of the General Counsel of
the Company (or other counsel for the Company reasonably acceptable to the
Agents) and, if called for by a Terms Agreement, the opinion of other
counsel, dated the Commencement Date or the Settlement Date, as the case
may be, to the effect set forth in Exhibit C hereto.
(ii) The Agents shall have received from Xxxxx Xxxxxxxxxx,
counsel for the Agents (or other counsel reasonably acceptable to the
Agents and the Company), an opinion dated the Commencement Date or the
Settlement Date, as the case may be, to the effect set forth in Exhibit D
hereto.
12
(iii) The Company shall have furnished to the Agents a
certificate of the Company, signed by the Chairman of the Board, any Vice
Chairman, the President or any Vice President and by the principal
financial or accounting officer of the Company (or another officer or
officers acceptable to the Agents), dated the Commencement Date or the
Settlement Date, as the case may be, to the effect that each signatory of
such certificate has carefully examined the Registration Statement, as
amended as of the date of such certificate, the Prospectus, as amended and
supplemented as of the date of such certificate, and this Agreement and
that:
(A) the representations and warranties of the Company
in this Agreement are true and correct in all material respects on and
as of the date of such certificate with the same effect as if made on
the date of such certificate and the Company has complied in all
material respects with all the agreements and satisfied in all
material respects all the conditions on its part to be performed or
satisfied as a condition to the obligations of the Agents under this
Agreement;
(B) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to their knowledge, have been
threatened; and
(C) since the date of the most recent financial
statements included in the Prospectus, as amended and supplemented,
there has been no material adverse change in the consolidated
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, which is not disclosed in the
Prospectus, as amended or supplemented.
(iv) KPMG Peat Marwick LLP, or other nationally recognized
independent accounting firm, shall have furnished to the Agents a letter or
letters, dated the Commencement Date or the Settlement Date, as the case
may be, in form and substance reasonably satisfactory to the Agents, to the
effect set forth in Exhibit E hereto.
(v) The Company shall have furnished to the Agents such
appropriate further information, certificates and documents as the Agents
may reasonably request.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement when
it became effective, or in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related Preliminary Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
13
against such loss, claim, damage, liability or action and all such expenses
shall be reimbursed as they are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Agent specifically for use therein and such
indemnity with respect to any preliminary prospectus, the Prospectus or any
Preliminary Prospectus, shall not inure to the benefit of such Agent (or any
person controlling such Agent) if the Company shall have delivered sufficient
quantities of the Prospectus, as amended and supplemented, to the Agent within a
reasonable time prior to the earlier of the delivery of the written confirmation
of the sale of such Notes or the delivery of such Notes to the person asserting
such loss, claim, damage, liability or action for which indemnification is
sought, and the Prospectus as so amended and supplemented (excluding documents
incorporated by reference) was not sent or given to such person by the Agent at
or prior to the earlier of the delivery of the written confirmation of the sale
of such Notes or the delivery of such Notes to such person in any case where
such sending or giving of a prospectus is required by the Act, and the untrue
statement or omission of a material fact contained in such preliminary
prospectus, such Prospectus or such preliminary supplemental prospectus, was
corrected in the Prospectus, as so amended and supplemented, provided to the
Agents.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any part of the Registration Statement when it became effective, or
in the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related Preliminary Prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Agent specifically for use therein, and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending against any such loss,
claim, damage, liability or action and all such expenses shall be reimbursed as
they are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent that it shall wish, jointly with
any other indemnifying party, similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party
14
shall not be liable to such indemnified party under such subsection for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the indemnified parties shall have the
right to employ one counsel to represent such indemnified parties if, in the
reasonable judgment of such indemnified parties, by reason of an actual or
potential conflict of interest in the defense of the action, it is advisable for
such indemnified parties to be represented by counsel separate from the
indemnifying party, in which event the reasonable fees and expenses of such
separate counsel shall be borne by the indemnifying party and be reimbursed as
they are incurred. 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.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent participating in the offering that
gave rise to such losses, claims, damages or liabilities (a "Relevant Agent") on
the other from the offering of such Notes, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and each
Relevant Agent on the other in connection with the statements or omissions which
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 Relevant Agent on the other in connection with
the offering of such Notes shall be deemed to be in the same proportion as the
total net proceeds from the offering of such Notes by such Relevant Agent
(before deducting expenses) received by the Company bear to the total
commissions received by such Relevant Agent in respect thereof. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Relevant Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. If more than one Agent is a Relevant Agent in respect of a
proceeding, each Relevant Agent's obligation to contribute pursuant to this
Section 5 shall be several and not joint, and shall be in the proportion that
the principal amount of the Notes that are the subject of such proceeding and
that were offered and sold through such Relevant Agent bears to the aggregate
principal amount of the Notes that are the subject of such proceeding. The
Company and each of the Agents agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were to be determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim (which shall be limited as provided in subsection
15
(c) above if the indemnifying party has assumed the defense of any such action
in accordance with the provisions thereof) which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes were offered and sold to the public by such Agent
exceeds the amount of any damages which such Agent has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Promptly after
receipt by an indemnified party under this subsection (d) of notice of the
commencement of any action against such party in respect of which a claim for
contribution may be made against an indemnifying party under this subsection
(d), such indemnified party shall notify the indemnifying party in writing of
the commencement thereof if the notice specified in subsection (c) above has not
been given with respect to such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this subsection (d).
(e) The obligations of the Company under this Section 5 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Agent within the meaning of the Act or the Exchange Act; and the obligations
of each of the Agents under this Section 5 shall be in addition to any liability
which the respective Agents may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company (including any person who,
with his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act.
6. TERMINATION OF THE APPOINTMENT OF THE AGENTS. This Agreement may
be terminated at any time by any party hereto upon the giving of written notice
of such termination to the other parties hereto. The termination of this
Agreement shall not require termination of any agreement by any Agent to
purchase Notes as principal, and the termination of any such agreement shall not
require termination of this Agreement. The termination of this agreement by the
Company with respect to any Agent or Agents or by any Agent shall not require
termination of this Agreement with respect to the other Agents hereunder. If
this Agreement is terminated, no party shall have any liability to any other
party hereto, except as provided in the first sentence of the second paragraph
of Section 1(a), the last proviso of Section 3(b), and Sections 3(f), 3(g),
3(h), 5, 7 and 11, and except that, if at the time of termination an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or its agent of the Note or Notes relating thereto has
not occurred, the Company's representations and warranties stated in Section 2
and its obligations under Sections 1(c), 3(a), 3(b), 3(c), 3(e), 3(i), 3(j),
3(k), 3(l), 3(m) and 4 shall also remain in full force and effect and not be
terminated until the delivery of such Notes.
7. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other agreements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Agents or the Company or any of the
16
officers, directors or controlling persons referred to in Section 5 hereof, and
will survive delivery of and payment for the Notes.
8. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or transmitted to them by any standard form of telecommunications at:
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product Manager
Fax: (000) 000-0000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 12th Floor
New York, New York 10285-1200
Attention: Medium-Term Note Department
Fax: (000) 000-0000; 000-0000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, North Tower
10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0060
Attention: Medium Term Note Desk - 3rd Floor
Fax: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Manager, Continuously Offered Products
Fax: (000) 000-0000
17
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Investment Banking Information Center
Fax: (000) 000-0000
or, if sent to the Company, will be mailed, delivered or transmitted by any
standard form of telecommunications at:
Commercial Credit Company
c/o Travelers Group Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 10013
Attention: Treasurer
Reference Medium-Term Note Program
Fax: (000) 000-0000
Any party to this Agreement may change the address to which notices or
communications to it shall be directed by giving notice in writing to the other
parties hereto.
9. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 5 hereof. Nothing
expressed or implied in this Agreement or any Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Section 5 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof except to the extent provided for in Section 4
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase. This Agreement and the rights
and obligations of the Agent hereunder may not be assigned without the prior
written consent of the Company.
10. WAIVERS, ETC. Neither any failure nor delay on the part of any
party to exercise any right, remedy, power or privilege under this Agreement
(singly and collectively referred to as a "Right") shall operate as a waiver of
such Right, nor shall any single or partial
18
exercise of any Right preclude any other or further exercise of any Right, nor
shall any waiver of any Right with respect to any occurrence be construed as a
waiver of any Right with respect to any other occurrence.
a)
11. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
19
If the foregoing is in accordance with your understanding of this
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and each Agent's acceptance shall represent a binding agreement
between the Company and each of the Agents.
Very truly yours,
COMMERCIAL CREDIT COMPANY
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
and Treasurer
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first written above.
XXXXX XXXXXX INC. X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Managing Director Title: Vice President
XXXXXX BROTHERS INC. XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx, III
--------------------------------- ---------------------------------
Name: Xxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxxxxx, III
Title: Managing Director Title: Vice President
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
20
