MORGAN STANLEY Morgan Stanley DirectSecuritiesSM DISTRIBUTION AGREEMENT
EXHIBIT
1-f
XXXXXX
XXXXXXX
Xxxxxx
Xxxxxxx DirectSecuritiesSM
December
23, 2008
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Dear
Sirs:
Xxxxxx
Xxxxxxx, a Delaware corporation (the “Company”), confirms its
agreement with you with respect to the issue and sale from time to time by the
Company of up to U.S.$2,000,000,000 aggregate initial public offering price, as
such amount may be increased from time to time upon due authorization by the
Company, of its Xxxxxx Xxxxxxx DirectSecuritiesSM having
a maturity more than nine months from the date of issue (the “Notes”) or such larger
aggregate initial public offering price as the Company may determine to offer
(the “Program
Capacity”), subject to reduction as a result of the sale of (1) the
Company’s (i) Global Medium Term Notes, Series F (issued other than as part
of a Unit), (ii) Global Units, Series F, (iii) Global Medium Term
Notes, Series G and Series H (issued other than as part of a Unit),
primarily outside of the United States, and (iv) Global Units, Series G and
Series H, primarily outside of the United States, and other debt
securities, warrants, preferred stock, common stock, purchase contracts and
units, (2) capital securities of certain statutory trust subsidiaries of the
Company and (3) securities of certain limited liability subsidiaries of the
Company (together with the Notes, the “Program Securities”) in excess
of an aggregate initial public offering price equal to
U.S. $165,452,274,876, as such amount may be increased from time to time
upon due authorization by the Company, minus the Program Capacity.
The Notes
will be issued as senior indebtedness pursuant to the provisions of a senior
indenture dated as of November 1, 2004, between the Company and The Bank of New
York Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly known as
JPMorgan Chase Bank)), as trustee (the “Trustee”) (as supplemented by
the First Supplemental Senior Indenture dated as of September 4, 2007, the
Second Supplemental Senior Indenture dated as of January 4, 2008, the Third
Supplemental Senior Indenture dated as of September 10, 2008 and the Fourth
Supplemental Senior Indenture dated as of December 1, 2008, each between the
Company and the Trustee and as may be further supplemented or amended from time
to time, the “Indenture”).
The Notes
will have the maturities, interest rates, redemption provisions, if any, and
other terms as set forth in the Prospectus referred to below and any Term Sheets
(as defined in Section 3(n) below) referred to below.
The
Company hereby appoints you as its exclusive agent 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, you agree 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, you may also purchase Notes as principal
pursuant to the terms of a terms agreement relating to such sale (a “Notes Terms Agreement”) in
accordance with the provisions of Section 2(b) hereof.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement, including a prospectus, relating to the Notes. Such
registration statement, as amended at the Commencement Date (as hereinafter
defined), including the documents incorporated therein by reference and the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430B of the Securities Act, as amended (the
“Securities Act”), is
hereinafter referred to as the “Registration
Statement.” The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act, supplements to
the prospectus relating to the Notes included in the Registration Statement that
will describe certain terms of the Notes. The prospectus covering the
Notes in the form first used to confirm each sale of Notes (or in the form first
made available to the agent by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
“Basic
Prospectus.” The Basic Prospectus, as supplemented by a
prospectus supplement and/or one or more product supplements and/or pricing
supplements setting forth the terms of the Notes, in the form first used to
confirm each sale of Notes (or in the form first made available to the agent by
the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act), is hereinafter referred to as the “Prospectus.” The
term “preliminary
prospectus” means any preliminary form of the Prospectus. The
term “free writing
prospectus” has the meaning set forth in Rule 405 under the Securities
Act. The term “Time
of Sale” in respect of Notes means any time at or prior to the
confirmation of any sales of any such Program Security. The term
“Time of Sale
Prospectus” means the Basic Prospectus, each preliminary prospectus
and/or Term Sheet, if any, and each free writing prospectus, if any, that has
been prepared by or on behalf of the Company relating to such Notes as of such
Time of Sale. The term “broadly available road show”
means a “bona fide electronic
road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used
herein, the terms “Registration
Statement,” “Basic
Prospectus,” “Prospectus,” “preliminary prospectus,” and
“Time of Sale
Prospectus” shall include the documents, if any, incorporated by
reference therein. The terms “supplement,” “amendment” and “amend” as used herein with
respect to the Registration Statement, the Basic Prospectus, any preliminary
prospectus, the Time of Sale Prospectus or free writing prospectus shall include
all documents subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are
deemed to be incorporated by reference therein.
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1.
Representations and
Warranties. The Company represents and warrants to and agrees
with you as of the Commencement Date, as of each date on which you solicit
offers to purchase Notes, as of each date on which the Company accepts an offer
to purchase Notes (including any purchase by you as principal pursuant to a
Notes 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. If
the Registration Statement is an automatic shelf registration statement as
defined in Rule 405 under the Securities Act, the Company is a well-known
seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to
use the Registration Statement as an automatic shelf registration statement and
the Company has not received notice that the Commission objects to the use of
the Registration Statement as an automatic shelf registration
statement.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or 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 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 required to be stated therein
or necessary to make the statements therein not misleading, (iv) 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, (v) the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, at each Time of Sale of Notes in connection with the
offering thereof when the Prospectus is not yet available to prospective
purchasers and at each date on which the Company issues and delivers Notes, 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, (vi) each broadly available
road show, if any, when considered together with the applicable Time of Sale
Prospectus, does 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, and (vii) 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 paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to you furnished to the Company in
writing by you expressly for use therein or (B) those parts of the Registration
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Statement
that constitute the Statements of Eligibility (Forms T 1) under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the
Trustees and (2) the representations and warranties set forth in clauses (iv)
and (vii) above, when made as of the Commencement Date or as of any date on
which you solicit 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.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or behalf of or used or
referred to by the Company complies or will comply in all material respects with
the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder. Except for any free writing
prospectuses and electronic road shows each furnished to you before first use,
the Company has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing
prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and the Time of Sale Prospectus, as applicable, 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
consolidated subsidiaries, taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and the Time of Sale
Prospectus, as applicable, 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 consolidated subsidiaries,
taken as a whole; all of the issued shares of capital stock of each consolidated
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(f) Each of
this Agreement and any applicable Written Notes Terms Agreement (as hereinafter
defined) has been duly authorized, executed and delivered by the
Company.
(g) The
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of
4
the
Company, enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
(h) The form
of the Notes has been duly authorized and established in conformity with the
provisions of the Indenture and, when the Notes have been executed and
authenticated in accordance with the provisions of the 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 subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and equitable principles of general applicability.
(i) The
execution and delivery by the Company of this Agreement, the Notes, the
Indenture and any applicable Written Notes Terms Agreement and the performance
by the Company of its obligations under this Agreement, the Notes, the Indenture
and any applicable Notes Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated 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 of its consolidated
subsidiaries, 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 Indenture and any applicable Notes Terms Agreement, except 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 no
representation is made or warranty given 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.
(j) There has
not occurred any material adverse change, or any development involving a
prospective 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 and the Time of Sale
Prospectus, if applicable.
(k) There are
no legal or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is subject (i)
other than proceedings accurately described in all material respects in the
Prospectus and the Time of Sale Prospectus, if applicable, and proceedings that
would not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Indenture or the Notes or to
consummate the transactions contemplated by the Prospectus or (ii) that are
required to be described in the Registration Statement or the Prospectus and are
not so described and there are no 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.
5
(l) The
Company is not, and after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus, will
not be required to register as, an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
(m) Each of
the Company and its consolidated 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, and the Time of
Sale Prospectus, if applicable, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(n) Xxxxxx
Xxxxxxx & Co. Incorporated is registered as a broker dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
2.
Solicitations
as Agent; Purchases as Principal.
(a) Solicitations as
Agent. In connection with your actions as agent hereunder, you
agree 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 you 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, you will forthwith suspend solicitations of offers to
purchase Notes from the Company until such time as the Company has advised you
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); provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for (i) a change in the interest rates, repayment provisions, redemption
provisions or maturities offered on the Notes or (ii) for a change you deem to
be immaterial), you shall not be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions and
letters as you may request.
The
Company agrees to pay to you, as consideration for the sale of each Note
resulting from a solicitation made or an offer to purchase received by you, a
commission in the form of a discount from the purchase price of such Note equal
to between 0.2% and 3.0% (depending upon such Note’s maturity) of the principal
amount of such Note or such other discount as may be specified in the Prospectus
Supplement relating to such Note.
You shall
communicate to the Company, orally or in writing, each offer to purchase Notes
received by you as agent that in your judgment should be considered by the
Company. The Company shall have the sole right to accept offers to
purchase Notes and may reject any
6
offer in
whole or in part. You shall have the right to reject any offer to
purchase Notes that you consider to be unacceptable, and any such rejection
shall not be deemed a breach of your agreements contained herein. The
procedural details relating to the issue and delivery of Notes sold by you as
agent 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 you 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 Notes Terms Agreement that
will provide for the sale of such Notes to and the purchase thereof by
you. Each Notes Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially in the
form of Exhibit A hereto (a “Written Notes Terms
Agreement”), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your
commitment to purchase Notes as principal pursuant to a Notes 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 Notes Terms Agreement shall specify
the principal amount of Notes to be purchased by you 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 Notes 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 Notes Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by you.
Each Notes
Terms Agreement shall specify the time and place of delivery of and payment for
such Notes. Unless otherwise specified in a Notes Terms Agreement,
the procedural details relating to the issue and delivery of Notes purchased by
you 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 you as principal pursuant to a Notes Terms Agreement is
referred to herein as a “Settlement Date.”
Unless
otherwise specified in a Notes Terms Agreement, if you are purchasing Notes as
principal you 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 Time of
Sale Prospectus and Prospectus relating to such Notes.
(c) Administrative
Procedures. You and the Company agree to perform the
respective duties and obligations specifically provided to be performed in the
DirectSecurities, 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
you.
(d) Delivery. The
documents required to be delivered by Section 4 of this Agreement as a condition
precedent to your obligation to begin soliciting offers to purchase Notes as
agent of the Company shall be delivered at the office of Sidley Austin llp, your
counsel, not later than 4:00 p.m., New York City time, on the date hereof, or at
such other time and/or place as you and
7
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 you begin soliciting offers to purchase
Notes and (ii) the first date on which the Company accepts any offer by you to
purchase Notes as principal. The date of delivery of such documents
is referred to herein as the “Commencement
Date.”
(e) Free Writing
Prospectuses. In connection with your actions hereunder, you
covenant that, unless you obtain the prior consent of the Company, you will not
make any offer relating to the Notes that would constitute an “issuer free
writing prospectus,” as defined in Rule 433(h) under the Securities Act, or that
would otherwise constitute a free writing prospectus required to be filed with
the Commission.
3.
Agreements. The
Company agrees with you that:
(a) The
Company will furnish to you a copy of each proposed free writing prospectus to
be prepared by or on behalf of, used by, or referred to by the Company relating
to the offering of the Notes and the Company will not use or refer to any
proposed free writing prospectus to which you reasonably object.
(b) The
Company will not take any action that would result in you or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by you or on your behalf that
you otherwise would not have been required to file thereunder.
(c) If the
Time of Sale Prospectus is being used to solicit offers to buy Notes at a time
when the Prospectus is not yet available to prospective purchasers and any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Time of Sale Prospectus in order to make the statements therein,
in the light of the circumstances, not misleading, or if any event shall occur
or condition exist as a result of which the Time of Sale Prospectus conflicts
with the information contained in the Registration Statement then on file, or
if, in the opinion of your counsel, it is necessary to amend or supplement the
Time of Sale Prospectus to comply with applicable law, the Company will
forthwith prepare, file with the Commission and furnish, at the Company’s own
expense, to you and to any dealer upon request, either amendments or supplements
to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable
law.
(d) Prior to
the termination of the offering of the Notes pursuant to this Agreement or
pursuant to any Notes Terms Agreement, the Company will not file any Time of
Sale Prospectus or prospectus supplement (including any product supplement or
pricing supplement) relating to the Notes or any amendment to the Registration
Statement relating to the Notes unless the Company has previously furnished to
you a copy thereof for your review and will not file any such proposed
supplement or amendment to which you reasonably object; provided, however, that the foregoing
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), 13(f), 14 or
15(d) of the
8
Exchange
Act, copies of which filings the Company will cause to be delivered to you
promptly after being transmitted for filing with the
Commission. Subject to the foregoing sentence, the Company will
promptly cause each supplement to the Basic Prospectus relating to the
Notes (including any product supplement or pricing 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 you
(i) of the filing of any amendment or supplement to the Basic Prospectus, (ii)
of 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 its 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. 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, you shall not be obligated to solicit offers to
purchase Notes so long as you are not reasonably satisfied with such
document.
(e) If, at any
time when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) 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 (or in lieu thereof the notice referred to in Rule 173(a) under
the Securities Act), as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in your opinion 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 you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified by the Company, you
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 you 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, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters
furnished to you pursuant to Section 3(i) 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 you, 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, you will resume the solicitation of
offers to purchase Notes hereunder. Notwithstanding any other
provision of this Section 3(e), until the distribution of any Notes you may own
as principal has been completed, if any event described above in this Section
3(e) 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
9
Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in all
respects to you, will supply such amended or supplemented Prospectus to you in
such quantities as you may reasonably request and shall furnish to you pursuant
to Section 3(i) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as you may request in connection with the
preparation and filing of such amendment or supplement.
(f) The
Company will make generally available to its security holders and to you 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 a period of at least twelve months 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.
(g) The
Company will furnish in New York City, without charge, (i) to you, a signed 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 you may reasonably request
and (ii) to the extent that you purchase Notes pursuant to a Notes Terms
Agreement or solicit an offer to purchase Notes that is accepted by the Company,
prior to 10:00 a.m. New York City time on the business day next succeeding the
date of such Notes Terms Agreement or the acceptance of such offer, as many
copies of the Prospectus, as then amended or supplemented (including the Time of
Sale Prospectus and the Prospectus Supplement relating to the Notes to be
purchased pursuant to such Notes Terms Agreement or accepted offer), as you may
reasonably request.
(h) The
Company will endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(i) During the
term of this Agreement, the Company shall furnish to you 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, any Time of Sale Prospectus, the
Indenture, the Notes, this Agreement, the Administrative Procedures, any Notes
Terms Agreement and the performance by the Company of its obligations hereunder
or thereunder as you may from time to time reasonably request.
(j) The
Company shall notify you 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 the Company or any of the securities of the Company or in
the rating outlook for the Company by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(k) Whether or
not any sale of Notes is consummated or this Agreement or any Notes Terms
Agreement is terminated, the Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement and any
Notes Terms Agreement including: (i) the fees, disbursements and
expenses of the Company’s counsel and the Company’s accountants, of the Trustee
and its counsel, in connection with the registration and
10
delivery
of the Notes under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statement, the
Prospectus, any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus prepared by or on behalf of, used by, or referred to by the
Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Notes (within the time
required by Rule 456(b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to you and the
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Notes to you, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Notes under state securities laws and all expenses in
connection with the qualification of the Notes for offer and sale under state
securities laws as provided in Section 3(h) hereof, including filing fees
and the reasonable fees and disbursements of your counsel in connection with
such qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements
of your counsel incurred in connection with the review and qualification of the
offering of the Notes by the Financial Industry Regulatory Authority, Inc.,
(v) any fees charged by the rating agencies for the rating of the Notes,
(vi) all fees and expenses in connection with the preparation and filing of
any registration statement on Form 8-A relating to any Notes and all costs
and expenses incident to listing the Notes on any national securities exchanges
and foreign stock exchanges, (vii) the cost of the preparation, issuance
and delivery of the Notes, (viii) the costs and charges of any trustee,
transfer agent, registrar or depositary, (ix) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Notes, including, without
limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with the
road show, (x) the document production charges and expenses associated with
printing this Agreement, the Indenture and any Notes Terms Agreement, (xi) the
fees and disbursements of your counsel incurred in connection with the offering
and sale of the Notes, including any opinions to be rendered by such counsel
hereunder, (xii) any out of pocket expenses incurred by you (provided that any
advertising expenses incurred by you shall have been approved by the Company)
and (xiii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided
in this Section and Section 6 entitled “Indemnification and Contribution,”
you will pay all of your costs and expenses, including fees and disbursements of
your counsel, transfer taxes payable on resale of any of the Notes by you and
any advertising expenses connected with any offers you may make.
(l) If the
third anniversary of the initial effective date of the Registration Statement
occurs during an offering of Notes before all of the Notes then being offered
have been sold by you, prior to the third anniversary the Company will file a
new shelf registration statement and take any other action necessary to permit
the public offering of the Notes to continue without interruption; references
herein to the Registration Statement shall include the new registration
statement declared effective by the Commission or that automatically becomes
effective upon filing with the Commission in accordance with Rule 462(e) under
the Securities Act.
11
(m) During the
period beginning on the date of any Notes Terms Agreement and continuing to and
including the Settlement Date with respect to such Notes Terms Agreement, the
Company will not, without your prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Notes set forth in such Notes Terms Agreement (other than (A) the Notes that
are to be sold pursuant to such Notes Terms Agreement, (B) Notes previously
agreed to be sold by the Company and (C) commercial paper issued in the ordinary
course of business), except as may otherwise be provided in the applicable Notes
Terms Agreement.
(n) Unless
otherwise notified by you, the Company will prepare a final term sheet (a “Term Sheet”) relating to each
offering of the Notes, containing only information that describes the final
terms of the Notes or the offering, in a form consented to by you, and will file
such Term Sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the
offering of the Notes.
4.
Conditions of the Obligations of the
Agent. Your obligation to solicit offers to purchase Notes as
agent of the Company, your obligation to purchase Notes as principal pursuant to
any Notes 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 your obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of your 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 involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its consolidated subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Notes on the terms and in the manner contemplated by
the Time of Sale Prospectus;
(ii) there
shall not have occurred any (A) suspension or material limitation of trading
generally on or by, as the case may be, any of the New York Stock Exchange, NYSE
Alternext US LLC, The NASDAQ Stock Market LLC, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in any over the counter market, (C) material disruption in securities
settlement, payment or clearance services in the United States or, in the event
of a global offering, in any relevant foreign jurisdiction, (D) declaration of
any moratorium on commercial banking activities by Federal or New York State
authorities or (E) any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your
12
judgment,
is material and adverse and which, singly or together with any other event
specified in this clause (E), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Notes on the
terms and in the manner contemplated in the Prospectus or the Time of Sale
Prospectus; 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 the Company or any of the securities of the Company or in the rating
outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(A)
except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Notes, 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 you prior to 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 Notes Terms Agreement, on the
corresponding Settlement Date, you shall have received:
(i) The
opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx, special counsel to
the Company, or of other counsel satisfactory to you and who may be an officer
of the Company, to the following effect that:
(A) the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if
applicable, 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 consolidated subsidiaries, taken as a
whole;
(B) each of
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx International Holdings
Inc. (each a “Material
Subsidiary”) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as amended or supplemented,
and the Time of Sale Prospectus, if applicable, 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
consolidated subsidiaries, taken as a whole;
13
(C) each of
the Company and its Material 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, and the Time of Sale Prospectus, if applicable, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(D) each of
this Agreement and any applicable Written Notes Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) the
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability;
(F) the form
of the Notes has been duly authorized and established in conformity with the
provisions of the Indenture and, if the Notes had been executed by the Company
and authenticated by the Trustee or its duly appointed agent in accordance with
the provisions of the Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, such Notes 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, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and equitable principles of general applicability;
(G) the
execution and delivery by the Company of the Notes, the Indenture and any
applicable Written Notes Terms Agreement and the performance by the Company of
its obligations under this Agreement, the Notes, the Indenture and any
applicable Notes Terms Agreement will not contravene any provision of applicable
law or the certificate of incorporation or by laws of the Company or, to the
best of such counsel’s knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of such counsel’s
knowledge, any judgment, order or decree of any U.S. governmental body, agency
or court having jurisdiction over the Company or any of its consolidated
subsidiaries, and no consent, approval, authorization or order of or
qualification with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indenture and any applicable Notes Terms Agreement, except 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 no opinion is
expressed on whether the purchase of the Notes constitutes a “prohibited
transaction” under Section 406 of the Employee Retirement Income Security Act
14
of 1974,
as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended;
(H) the
statements relating to legal matters, documents or proceedings included in (1)
the Prospectus, as then amended or supplemented, and the Time of Sale
Prospectus, if applicable, under the captions “Description of DirectSecurities”
(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), (2) the Registration Statement, as then amended or
supplemented, under Item 15, (3) “Item 3. Legal Proceedings” of the most recent
annual report on Form 10 K incorporated by reference in the Prospectus and the
Time of Sale Prospectus, if applicable, and (4) “Item 1. Legal Proceedings” of
Part II of the quarterly reports on Form 10 Q, if any, filed since such annual
report and incorporated by reference in the Prospectus and the Time of Sale
Prospectus, if applicable, in each case fairly summarize in all material
respects such matters, documents or proceedings;
(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 consolidated
subsidiaries is a party or to which any of the properties of the Company or any
of its consolidated 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 U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state law 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 by reference as required;
(J) the
Company is not, and after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus, will
not be required to register as, an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended; and
(K) (1) in the
opinion of such counsel (A) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus, as
then amended or supplemented, and the Time of Sale Prospectus, if applicable
(except for the financial statements and financial schedules and other financial
and statistical data included therein, as to which such counsel need not express
any opinion), appeared on its face to be appropriately responsive as of its
filing date in all material respects to the requirements of the Exchange Act and
the applicable rules and regulations of the Commission thereunder and (B) the
Registration Statement and the Prospectus, as then amended or supplemented, if
applicable (except for the financial statements and financial schedules and
other financial and statistical data included therein and except for those parts
of the Registration Statement that constitute the Forms T-1, as to which such
counsel need not express any opinion), appear on their face
15
to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder, and (2) nothing has come to the attention of such counsel that
causes such counsel to believe that (A) any part of the Registration Statement,
as then amended, if applicable, when such part became effective (except for the
financial statements and financial schedules and other financial and statistical
data included therein and except for those parts of the Registration Statement
that constitute Forms T-1, as to which such counsel need not express any belief)
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, (B) the Registration Statement or the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data included therein and except for those parts of the Registration Statement
that constitute Forms T-1, as to which such counsel need not express any belief)
as of the date the opinion is delivered or the Time of Sale, as applicable,
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, (C) the Time of Sale Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
included therein, as to which such counsel need not express any belief), if any,
as of the date of the Notes Terms Agreement or as amended or supplemented, if
applicable, as of the date the opinion is delivered, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading or (D) the Prospectus
(except for the financial statements and financial schedules and other financial
and statistical data included therein, as to which such counsel need not express
any belief), as amended or supplemented, if applicable, as of the date the
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 1(B), 2(B) (with respect to the
Prospectus only) and 2(C) above shall be deemed not to cover information
concerning an offering of Notes to the extent such information will be set forth
in a supplement to the Basic Prospectus.
(ii) The
opinion, dated as of such date, of Sidley Austin llp, your special counsel,
covering the matters in subparagraphs (D), (E), (F) and (H) (with respect to
statements in the Prospectus and the Time of Sale Prospectus, if applicable, as
then amended or supplemented, under the captions “Description of
DirectSecurities” (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 clauses 4(b)(i)(K)(2)(A),
4(b)(i)(K)(2)(B), 4(b)(i)(K)(2)(C) and 4(b)(i)(K)(2)(D) above.
With
respect to Section 4(b)(i)(K) above, if such opinion is given by counsel who is
also an officer of the Company, such counsel may state that his or her opinions
and beliefs are based upon his or her participation, or the participation of
someone under his or her supervision, in the
16
preparation
of the Registration Statement, the Time of Sale Prospectus and the Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified. With respect to Section 4(b)(i)(K) above, Sidley Austin
llp and, if Xxxxx Xxxx & Xxxxxxxx is giving such opinion, Xxxxx Xxxx &
Xxxxxxxx may state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement, the Time of Sale
Prospectus, the Prospectus, the preliminary prospectus supplement, if any, any
identified free writing prospectuses (but not including documents incorporated
therein by reference) and upon review and discussion of the contents of the
Registration Statement, the Time of Sale Prospectus and the Prospectus
(including documents incorporated therein by reference), but are without
independent check or verification, except as specified, and (ii) need express no
opinion or belief as to the conveyance of the Time of Sale Prospectus or the
information contained therein to investors.
(iii) The
opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx, special counsel to
the Company, to the effect that the statements set forth under the caption
“United States Federal Taxation” in the Basic Prospectus and the Prospectus
Supplement and under the caption “Forms of Securities -- Limitations on Issuance
of Bearer Securities” in the Basic Prospectus, insofar as such statements relate
to statements of law or legal conclusions under the laws of the United States or
matters of United States law, fairly present the information called for and
fairly summarize the matters referred to therein.
The
opinion of Xxxxx Xxxx & Xxxxxxxx described in Section 4(b)(iii) above and in
Section 4(b)(i) above, if such opinion is given by Xxxxx Xxxx & Xxxxxxxx,
shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the
Commencement Date and, if called for by any Notes Terms Agreement, on the
corresponding Settlement Date, you shall have received a certificate, dated the
Commencement Date or such Settlement Date, as the case may be, and signed by an
officer of the Company to the effect set forth in Section 4(a)(iii) above and to
the effect that the representations and warranties of the Company contained in
this Agreement 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
knowledge as to proceedings threatened.
(d) On the
Commencement Date and, if called for by any Notes Terms Agreement, on the
corresponding Settlement Date, the Company’s public accountants shall have
furnished to you 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 you
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement, the Time of Sale Prospectus and the
Prospectus, as then amended or supplemented; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
17
(e) On the
Commencement Date and on each Settlement Date, the Company shall have furnished
to you such appropriate further information, certificates and documents as you
may reasonably request.
5.
Additional Agreements of the
Company. (a) Each time the Registration Statement or
Prospectus is amended or supplemented (other than by an amendment or supplement
providing solely for (i) a change in the interest rates, repayment provisions,
redemption provisions or maturities offered on the Notes or (ii) a change you
deem to be immaterial), the Company will deliver or cause to be delivered
forthwith to you 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 you, 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) (other than any
amendment or supplement to the Registration Statement or Prospectus caused by
the filing of a Current Report on Form 8-K unless you shall reasonably request
based on disclosure included or omitted from such Report), the Company will
furnish or cause to be furnished forthwith to you a written opinion of counsel
for the Company. Any such opinion shall be dated the date of such
amendment or supplement, as the case may be, shall be in a form satisfactory to
you and shall be of the same tenor as the opinions referred to in Section 4(b),
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In
lieu of such opinion, counsel last furnishing such an opinion to you may furnish
to you a letter to the effect that you may rely on such last opinion to the same
extent as though it were dated the date of such letter (except that statements
in such last opinion 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 auditors forthwith to furnish you with a
letter, dated the date of such amendment or supplement, as the case may be, in
form satisfactory to you, 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; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
6.
Indemnification and
Contribution. (a) The Company agrees to indemnify and hold
harmless you and each person, if any, who controls you within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and
each of your affiliates within the meaning of Rule 405 under the Securities Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating 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, any preliminary prospectus,
the Time of Sale
18
Prospectus,
any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, 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 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 you furnished to the Company in writing by you expressly for use
therein.
(b) You agree,
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 you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus 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 Section 6(a) or 6(b), 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 you, in the case of parties indemnified pursuant to
Section 6(a), and by the Company, in the case of parties indemnified pursuant to
Section 6(b). 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 any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
19
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 Section 6(a) or 6(b) 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 you on the other
hand from the offering of such Notes or (ii) if the allocation provided by
clause 6(d)(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
6(d)(i) above but also the relative fault of the Company on the one hand and you
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 you 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 you in respect thereof as set forth in the
Prospectus. The relative fault of the Company on the one hand and of
you 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 you and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. Your obligations to contribute pursuant to this Section 6
are several in proportion to the respective principal amounts of the Notes you
have purchased in any offering of Notes hereunder, and not joint.
(e) The
Company and you agree that it would not be just or equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 6(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, you shall not be required to contribute any amount in excess
of the amount by which the total price at which the Notes referred to in Section
6(d) that were offered and sold to the public through you exceeds the amount of
any damages that you have 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
20
exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 6 and the
representations, warranties and other statements of the Company, its officers
and you contained in or made pursuant to this Agreement or any Notes Terms
Agreement will remain operative and in full force and effect regardless of (i)
any termination of this Agreement or any such Notes Terms Agreement, (ii) any
investigation made by or on behalf of you, any person controlling you or any of
your affiliates or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Notes.
7.
Position of the
Agent. In acting under this Agreement and in connection with
the sale of any Notes by the Company (other than Notes sold to you pursuant to a
Notes Terms Agreement), you are acting solely as agent of the Company and do not
assume any obligation towards or relationship of agency or trust with any
purchaser of Notes. You shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase Notes
has been solicited by you and accepted by the Company, but you 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
you harmless against any loss, claim, damage or liability arising from or as a
result of such default and shall, in particular, pay to you the commission you
would have received had such sale been consummated.
8.
Offering
Restrictions. If any Notes are to be offered outside the
United States, you will not offer or sell any such Notes in any jurisdiction if
such offer or sale would not be in compliance with any applicable law or
regulation or if any consent, approval or permission is needed for such offer or
sale by you or for or on behalf of the Company unless such consent, approval or
permission has been previously obtained. Subject to the obligations
of the Company set forth in Section 3 of this Agreement, the Company shall have
no responsibility for, and you will obtain, any consent, approval or permission
required by you for the subscription, offer, sale or delivery by you of Notes,
or the distribution of any offering materials, under the laws and regulations in
force in any jurisdiction to which you are subject or in or from which you make
any subscription, offer, sale or delivery.
9.
Termination. This
Agreement may be terminated at any time either by the Company or by you upon the
giving of written notice of such termination to the other parties hereto, but
without prejudice to any rights, obligations or liabilities of the other parties
hereto accrued or incurred prior to such termination. The termination
of this Agreement shall not require termination of any Notes Terms Agreement,
and the termination of any such Notes Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the
provisions of the third paragraph of Section 2(a), the last sentence of Section
3(e) and Sections 3(f), 3(k), 6, 7, 10, 11 and 13 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 1, 2(b), 2(c), 3(d), 3(g), 3(h),
3(i), 3(j), 3(m), 4 and 5 shall also survive until such delivery has been
made.
21
10. Notices. All
communications hereunder will be in writing and effective only on receipt, and,
if sent to you, will be mailed, delivered or telefaxed and confirmed to you at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer
(telefax number: 212-761-0781) or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer; Facsimile No.:
000-000-0000.
11. Successors. This
Agreement and any Notes 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. 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.
13. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. 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.
22
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
you.
| Very truly yours, | ||||
| XXXXXX XXXXXXX | ||||
|
By:
|
||||
|
Name:
|
Xxxxxx
X. Park
|
|||
|
Title:
|
Assistant
Treasurer
|
|||
The
foregoing Agreement is hereby
confirmed
and accepted as of the date first
above
written.
XXXXXX
XXXXXXX & CO. INCORPORATED
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
23
EXHIBIT
A
XXXXXX
XXXXXXX
DIRECTSECURITIESSM
NOTES
TERMS AGREEMENT
___________________,
200_
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
|
|
Re:
|
DirectSecurities
Distribution Agreement dated December 23, 2008
|
|
(the “DirectSecurities
Distribution Agreement”)
|
The
undersigned agrees to purchase your Xxxxxx Xxxxxxx DirectSecuritiesSM having
a maturity more than nine months from the date of issue (the "Notes") having the
terms set forth below. The offering of the Notes will be made
pursuant to a Prospectus dated December 23, 2008, as amended by a Prospectus
Supplement dated December 23, 2008 [and] [Pricing Supplement No.
[ ] which we expect to be dated on or about
[ ]][,] [and] [a free writing prospectus which we
expect to be dated on or about [ ]][,] [and] [a Term Sheet
which we expect to be dated on or about [ ]] (collectively, the
“Time of Sale
Prospectus”). The Notes are expected to have the terms set
forth below, but the final terms of the Notes will be those set forth in the
Time of Sale Prospectus. For purposes of this Agreement, the “Time of
Sale” shall be [ ], 20[ ].
|
Principal
Amount:
|
Interest
Rate:
|
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
|
Price
to Public:
|
If yes, state issue price:
|
|
Settlement
Date and Time:
|
Applicability
of Survivor’s Option:
|
|
Place
of Delivery:
|
Optional
Repayment Date(s):
|
|
Original
Issue Date:
|
Optional
Redemption Date(s):
|
|
Interest
Accrual Date:
|
Initial
Redemption Date:
|
|
Interest
Payment Dates:
|
Initial
Redemption Percentage:
|
|
Interest
Payment Period:
|
Annual
Redemption Percentage Reduction:
|
|
Maturity
Date:
|
Face
Amount (if any):
|
Minimum
Denominations:
Other
Provisions:
A-1
The
provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10 through 14 of the
DirectSecurities Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections
3(k), 6, 10, 11, and 13 of the DirectSecurities Distribution
Agreement shall survive for the purposes of this Agreement.
The
following information, opinions, certificates, letters and documents referred to
in Section 4 of the DirectSecurities Distribution Agreement will be
required: ________________.
A-2
|
XXXXXX
XXXXXXX & CO. INCORPORATED
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
Accepted:
XXXXXX
XXXXXXX
|
By:
|
||||
|
Name:
|
Xxxxxx
X. Park
|
|||
|
Title:
|
Assistant
Treasurer
|
|||
A-3
EXHIBIT
B
XXXXXX
XXXXXXX
XXXXXX
XXXXXXX DIRECTSECURITIESSM
ADMINISTRATIVE
PROCEDURES
________________________
Explained
below are the administrative procedures and specific terms of the offering of
Xxxxxx Xxxxxxx DirectSecuritiesSM having
a maturity more than nine months from the date of issue (the “Notes”) on a continuous basis
by Xxxxxx Xxxxxxx (the “Company”) pursuant to the Xxxxxx Xxxxxxx
DirectSecurities Distribution Agreement dated December 23, 2008 (as may be
amended from time to time, the “DirectSecurities Distribution
Agreement”) between the Company and Xxxxxx Xxxxxxx & Co. Incorporated
(the “Agent”). The Notes
will be issued as senior indebtedness of the Company pursuant to the provisions
of a senior indenture dated as of November 1, 2004 (as supplemented by the First
Supplemental Senior Indenture dated as of September 4, 2007, the Second
Supplemental Senior Indenture dated as of January 4, 2008, the Third
Supplemental Senior Indenture dated as of September 10, 2008 and the Fourth
Supplemental Senior Indenture dated as of December 1, 2008, each between the
Company and The Bank of New York Mellon (as successor to JPMorgan Chase Bank,
N.A. (formerly known as JPMorgan Chase Bank)) (“BONY”), as trustee (the “Trustee”), and as may be
further supplemented or amended from time to time, the “Indenture”), between the
Company and the Trustee.
In the
DirectSecurities Distribution Agreement, the Agent has 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 Agent, as agent of the Company. The Agent, as principal,
may also purchase Notes for its own account, and the Company and the Agent will
enter into a terms agreement (a “Notes Terms Agreement”), as
contemplated by the DirectSecurities Distribution Agreement. The
administrative procedures explained below will govern the issuance and
settlement of any Notes purchased by the Agent, as principal, unless otherwise
specified in the applicable Notes Terms Agreement.
BONY will
be the Registrar, Authenticating Agent and Paying Agent for the Notes and will
perform the duties specified herein. Each Note will be represented by
a Global Note (as defined below) delivered to BONY, as agent for The Depository
Trust Company (“DTC”),
and recorded in the book-entry system maintained by DTC (a “Book-Entry
Note”). Each Note will be issued in global
form. Except as set forth in the Indenture, an owner of a Book-Entry
Note will not be entitled to receive a certificated note.
Book-Entry
Notes will be payable in U.S. dollars and 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.
B-1
Unless
otherwise defined herein, terms defined in the Indenture, the Notes or any
Prospectus Supplement relating to the Notes shall be used herein as therein
defined.
The
Company will advise the Agent in writing of the employees of the Company with
whom the Agent is to communicate regarding offers to purchase Notes and the
related settlement details.
B-2
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, BONY will perform the custodial, document
control and administrative functions described below, in accordance with its
respective obligations under (i) DTC’s Operational Arrangements dated February
20, 2002, as amended from time to time, including by the Blanket Issuer Letter
of Representations from the Company to DTC, dated as of August 25, 2003 and (ii)
its obligations under a Medium Term Note Certificate Agreement between BONY and
DTC dated as of April 4, 1989, and its obligations as a participant in DTC,
including DTC’s Same Day Funds Settlement System (“SDFS”).
|
Issuance:
|
On
any date of settlement (as defined under “Settlement” below) for
one or more Book-Entry Notes, the Company will issue a single global Note
in fully registered form without coupons (a “Global Note”)
representing up to U.S.$500,000,000 principal amount of all such Notes
that have the same Original Issue Date, Maturity Date and other terms and
that otherwise comprise the same securities and have the same
terms. Each Global Note will be dated and issued as of the date
of its authentication by BONY. Each Global Note will bear an
“Interest Accrual
Date,” which will be (i) with respect to an original Global Note
(or any portion thereof), its original issuance date and (ii) with respect
to any Global Note (or any portion thereof) issued subsequently upon
exchange of a Global Note, or in lieu of a destroyed, lost or stolen
Global Note, the most recent Interest Payment Date to which interest has
been paid or duly provided for on the predecessor Global Note or Notes (or
if no such payment or provision has been made, the original issuance date
of the predecessor Global Note), regardless of the date of authentication
of such subsequently issued Global Note. Book-Entry Notes will
be payable in U.S. dollars.
|
|
|
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, unless
otherwise indicated in any applicable free writing prospectus, Term Sheet
and Pricing Supplement. Global Notes will be denominated in
principal amounts not in excess of U.S.$500,000,000. If one or
more Book-Entry Notes having an aggregate principal amount in excess of
U.S.$500,000,000 would, but for the preceding sentence, be represented by
a single Global Note then one Global Note will be issued to represent each
U.S.$500,000,000 principal amount of such Book-Entry Note or Notes and an
additional Global Note will be issued to represent any remaining principal
amount
|
B-3
| of such Book-Entry Note or Notes. In such a case, each of the Global Notes shall be assigned the same CUSIP number. | ||
|
Preparation
of
|
||
|
Pricing
Supplement:
|
If
any order to purchase a Book-Entry Note is accepted by or on behalf of the
Company, the Company will prepare a free writing prospectus, and/or Term
Sheet, if applicable and a pricing supplement (a “Pricing Supplement”)
reflecting the terms of such Note. The Company (i) will arrange
to file with the Commission an electronic format document, in the manner
prescribed by the XXXXX Xxxxx Manual, of such Term Sheet and Pricing
Supplement in accordance with, in the case of any free writing prospectus
and/or Term Sheet, Rule 433 under the Securities Act and, in the case of
the Pricing Supplement, the applicable paragraph of Rule 424(b) under the
Securities Act, (ii) will, with respect to each of the free writing
prospectus and/or Term Sheet, if applicable, and the Pricing Supplement,
as soon as possible and in any event not later than the date on which the
applicable document is filed with the Commission, deliver the number of
copies of such document to the Agent as the Agent shall request and (iii)
will, on the Agent’s behalf, promptly file five copies of such Pricing
Supplement with the Financial Industry Regulatory Authority, Inc. (the
“FINRA”) or
otherwise satisfy FINRA’s filing requirements. The Agent will
cause the free writing prospectus and/or Term Sheet, if applicable, and
the Pricing Supplement to be delivered, or otherwise made available, to
the purchaser of the Note.
|
|
|
In
each instance that a Pricing Supplement is prepared, the Agent will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated free writing prospectuses, Term Sheets, 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 Note
representing such Note shall constitute “settlement” with respect to such
Note. All orders accepted by the Company will be settled on the
fifth Business Day pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to settlement on another
day, which shall be no earlier than the next Business
Day.
|
B-4
|
Settlement
Procedures:
|
Settlement
Procedures with regard to each Book-Entry Note sold by the Company to or
through the Agent (unless otherwise specified pursuant to a Notes Terms
Agreement), shall be as follows:
|
|
|
A.
|
The
Agent will advise the Company by telephone that such Note is a Book-Entry
Note and of the following settlement information:
|
|
|
1.
|
Principal
amount.
|
||
|
2.
|
Maturity
Date.
|
||
|
3.
|
Whether
such Note will pay interest monthly, quarterly, semiannually or
annually.
|
||
|
4.
|
Whether
a Survivor’s Option is applicable.
|
||
|
5.
|
Redemption
or repayment provisions, if any.
|
||
|
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 DirectSecurities
Distribution Agreement.
|
||
|
10.
|
Whether
the Note is an Original Issue Discount Note (an “OID Note”), and if it is
an OID Note, the applicability of Modified Payment upon Acceleration (and,
if so, the Issue Price).
|
||
|
11.
|
Any
other applicable provisions.
|
||
|
B.
|
The Company will advise BONY by telephone or electronic transmission (confirmed in writing at any time on the same date) of the information set forth in “Settlement Procedures” “A” above, such advice to contain a representation as to the aggregate principal amount of Notes permitted to be issued hereunder after such issuance. BONY will then assign a CUSIP number to the Global Note representing a Note and will notify the Company and the Agent of such CUSIP number(s) by telephone as soon as practicable. | ||
B-5
|
C.
|
BONY will enter a pending deposit message through DTC’s Participant Terminal System, providing the following settlement information to DTC, the Agent and Standard & Poor’s Corporation: | ||
|
1.
|
The
information set forth in “Settlement Procedure” “A”
above.
|
||
|
2.
|
The
Initial Interest Payment Date for the Notes, the number of days by which
such date succeeds the related DTC Record Date and, if known, amount of
interest payable on such Initial Interest Payment Date.
|
||
|
3.
|
The
CUSIP number of the Global Note.
|
||
|
4.
|
Whether
the Global Note will represent any other Book-Entry Note (to the extent
known at such time).
|
||
|
5.
|
The
number of Participant accounts to be maintained by DTC on behalf of the
Agent and BONY.
|
||
|
D.
|
BONY will authenticate, complete and deliver the Global Note representing the Note. | ||
|
E.
|
DTC will credit such Note to BONY’s participant account at DTC. | ||
|
F.
|
BONY will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC to (i) debit the Note to BONY’s participant account and credit such Note to the Agent’s participant account and (ii) debit the Agent’s settlement account and credit BONY’s settlement account for an amount equal to the price of such Note less the Agent’s commission, if any. The entry of such a deliver order shall constitute a representation and warranty by BONY to DTC that (a) the Global Note representing a Book Entry Note has been issued and authenticated and (b) BONY is holding such Global Note pursuant to the Medium-Term Note Certificate Agreement between BONY and DTC. | ||
|
G.
|
Unless the Agent is the end purchaser of a Note, the Agent will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Note to the Agent’s participant account and credit such Note to the | ||
B-6
| 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 the Agent for an amount equal to the price of such Note. | |||
|
H.
|
Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures “F” and “G” will be settled in accordance with SDFS operating procedures in effect on the settlement date. | ||
|
I.
|
BONY will credit to the account of the Company maintained at BONY, New York, New York, in funds available for immediate use in the amount transferred to BONY in accordance with “Settlement Procedure” “F”. | ||
|
J.
|
Unless the Agent is the end purchaser of the Note, the 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, BONY will send to the Company a statement setting forth the principal amount of Notes outstanding as of that date under the Indenture and setting forth a brief description of any sales of which the Company has advised BONY that have not yet been settled. | ||
|
|
|||
|
Settlement
Procedures Timetable:
|
For sales by the Company of Book Entry Notes to or through the Agent (unless otherwise specified pursuant to a Notes Terms Agreement) 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: | ||
B-7
|
Settlement
|
|||
| Procedure Time | |||
| A 11:00 A.M. on the sale date | |||
| B 12:00 Noon on the sale date | |||
| C 2:00 P.M. on the sale date | |||
| D 9:00 A.M. on the settlement date | |||
| E 10:00 A.M. on the settlement date | |||
| F-G 2:00 P.M. on the settlement date | |||
| H 4:45 P.M. on the settlement date | |||
| I-J 5:00 P.M. on the settlement date | |||
| If a sale is to be settled more than one Business Day after the sale date, Settlement Procedures “A”, “B” and “C” shall be completed as soon as practicable but no later than 11:00 A.M., 12 Noon and 2:00 P.M., respectively, on the first Business Day after the sale date. “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 canceled, BONY, after receiving notice from the Company or the Agent, will deliver to DTC, through DTC’s Participant Terminal System, a cancellation message to such effect by no later than 2:00 P.M. on the Business Day immediately preceding the scheduled settlement date. | |||
|
Failure
to Settle:
|
If BONY fails to enter an SDFS deliver order with respect to a Book-Entry Note pursuant to “Settlement Procedure” “F”, BONY may deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Note to BONY’s participant account, provided that BONY’s participant account contains a principal amount of the Global Note 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 Note, BONY will xxxx such Global Note “canceled,” make appropriate entries in BONY’s records and send such canceled Global Note to the Company. The CUSIP number assigned to such Global Note shall, in accordance with the procedures of the CUSIP Service Bureau of Standard & Poor’s Corporation, be canceled 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 Note, | ||
B-8
| BONY will exchange such Global Note for two Global Notes one of which shall represent such Book Entry Note or Notes and shall be canceled immediately after issuance and the other of which shall represent the remaining Book-Entry Notes previously represented by the surrendered Global Note and shall bear the CUSIP number of the surrendered Global Note. | |||
| 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 Agent may enter SDFS deliver orders through DTC’s Participant Terminal System reversing the orders entered pursuant to Settlement Procedures “F” and “G”, respectively. Thereafter, BONY will deliver the withdrawal message and take the related actions described in the preceding paragraph. | |||
| Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. | |||
| In the event of a failure to settle with respect to one or more, but not all, of the Book-Entry Notes to have been represented by a Global Note, BONY will provide, in accordance with Settlement Procedures “D” and “F”, for the authentication and issuance of a Global Note representing the Book-Entry Notes to be represented by such Global Note and will make appropriate entries in its records. | |||
B-9
