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Exhibit 1.01
Xxxxx Xxxxxx Holdings Inc.
Medium-Term Notes, Third Series
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
July 24, 1997
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Xxxxxx Holdings Inc., a Delaware corporation (the "Company"),
confirms its agreement with the Agent (as defined below) with respect to the
issue and sale by the Company of its Medium-Term Notes, Third Series (the
"Notes"). The Notes are to be issued under an Indenture dated as of May 15,
1993, as supplemented by the First Supplemental Indenture dated as of September
1, 1993 and the Second Supplemental Indenture dated as of December 12, 1996 (as
so supplemented or as it may from time to time be further supplemented or
amended by one or more indentures supplemental thereto, the "Indenture"),
between the Company and Citibank, N.A., as trustee (the "Trustee"). The Notes
will have the maturities, interest rates (whether fixed or floating), redemption
provisions and other terms set forth in a pricing supplement to the Prospectus
referred to below. The Notes may be denominated in U.S. dollars, foreign
currencies or foreign composite currency units (the "Specified Currency") as may
be specified in the applicable pricing supplement.
Subject to the terms and conditions stated herein and subject
to the reservation by the Company of the right to sell Notes to the Agent acting
as principal at a discount for its own account or for resale to one or more
investors or other dealers and the Company's right to sell Notes directly to
investors on its own behalf or through other agents (provided that any other
agent will execute an agreement with the Company which contains substantially
the same terms and conditions contained herein and that the Company will notify
the Agent of its agreement with any other agents, dealers or underwriters), the
Company hereby appoints the Agent as an agent of the Company for the purpose of
soliciting offers to purchase the Notes. In addition, the Agent
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may also purchase Notes as principal and the Company will enter into a Terms
Agreement (referred to below) relating to such sale in accordance with the
provisions of Section L.(b) hereof. For the purposes of this Agreement, the term
"Agent" shall refer to Xxxxx Xxxxxx Inc.
1. Solicitations by the Agent of Offers to Purchase; Purchases
as Principal.
(a) Solicitations as Agent. Following the Commencement Date
(referred to below), the Company shall notify the Agent from time to time as to
the commencement of a period during which the Notes may be offered and sold by
the Agent (each period, commencing with such a notification and ending at such
time as the authorization for offers and sales through the Agent shall have been
suspended by the Company or the Agent as provided hereunder, being herein
referred to as an "Offering Period"). On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, the Agent agrees to use its reasonable best efforts to solicit offers to
purchase the Notes during each Offering Period upon the terms and conditions set
forth in the Prospectus as then amended and supplemented. The Company reserves
the right, in its sole discretion, to suspend solicitation of purchases of the
Notes commencing at any time for any period of time or permanently. Upon receipt
of instructions from the Company, the Agent will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agent that such solicitation may be resumed.
Unless otherwise agreed to, the Company agrees to pay the
Agent at the time of delivery of and payment for the Notes, as consideration for
soliciting the sale of each Note, a commission equal to the percentage set forth
on Schedule 1 hereto of the price to the public of each Note sold by the Company
as the result of a solicitation by the Agent. Without the prior approval of the
Company, the Agent (acting on an agency basis) may not reallow any portion of
the commission payable pursuant hereto to dealers or purchasers in connection
with the offer and sale of any Notes.
The Agent is authorized to solicit orders for the Notes only
in principal amounts of $1,000 or any amount in excess thereof which is a
multiple of $1,000 or, in the case of Notes denominated in a Specified Currency
other than U.S. dollars, in the denominations set forth in the applicable
pricing supplement, at a purchase price equal to 100% of the principal amount of
the Notes, unless otherwise mutually agreed upon by the purchaser and the
Company and specified in the applicable pricing supplement. The Agent shall
communicate to the Company, orally or in writing,
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each reasonable offer or indication of interest to purchase Notes received by
the Agent as Agent. The Company shall have the sole right to accept offers to
purchase the Notes and may reject any such offer in whole or in part. The Agent
shall have the right to reject, in its discretion reasonably exercised, any
offer received by it to purchase the Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreements contained herein. In
soliciting offers to purchase the Notes in its capacity as agent of the Company,
the Agent is acting solely as agent for the Company, and not as principal, and
does not assume any obligation toward or relationship of agency or trust with
any purchaser of the Notes (other than any such obligation or relationship which
the Agent assumes independently of this Agreement). The Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by the Agent and
accepted by the Company, but the Agent shall not have any liability to the
Company in the event any such purchase is not consummated for any reason. Under
no circumstances will the Agent be obligated to purchase any Notes for its own
account except pursuant to subparagraph (b) below.
(b) Purchases as Principal. Each sale of Notes to the Agent as
principal shall be made in accordance with the terms of this Agreement and the
Agent and the Company will enter into a Terms Agreement that will provide for
the sale of such Notes to and the purchase thereof by the Agent. Each "Terms
Agreement" may take the form of an exchange of any form of written
telecommunication or oral communication followed by written confirmation or
telecommunication between the Agent and the Company and shall be with respect to
such information (as applicable) as is specified in Exhibit A hereto.
The Agent's commitment to purchase Notes as principal shall be
deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each agreement by the Agent to purchase Notes as principal
(whether or not set forth in a Terms Agreement) shall specify the principal
amount of Notes to be purchased by the Agent pursuant thereto, the maturity date
of such Notes, the price to be paid to the Company for such Notes, the interest
rate and interest rate formula, if any, applicable to such Notes and any other
terms of such Notes. Each such agreement shall also specify any requirements for
officers' certificates, opinions of counsel and letters from the independent
public accountants of the Company
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pursuant to Section 4 hereof. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Agent.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Each date of delivery of and payment for
Notes to be purchased by the Agent as principal or as agent or by any other
purchaser is referred to herein as a "Settlement Date."
Upon the Company's request, the Agent will notify the Company
either orally or in writing (as specified by the Company) of the aggregate
principal amount of Notes held by the Agent as principal purchased pursuant to a
Terms Agreement pursuant to this Agreement.
(c) Procedures. The Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Medium-Term Notes Administrative Procedures attached hereto as Exhibit B
(the "Procedures"). The Procedures may be amended only by written agreement of
the Company and the Agent.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement shall be delivered at the office of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Agent, 000 Xxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000, on July 24, 1997 (the "Commencement Date").
2. Representations and Warranties. The Company represents and warrants
to and agrees with the Agent as of the Commencement Date:
(a) Registration Statements (File Nos. 333-17831 and
333-30175) in respect of $750,000,000 aggregate amount of debt securities of the
Company, including the Notes, have been filed with the Securities and Exchange
Commission (the "Commission"); such registration statements and any
post-effective amendment thereto, each in the forms heretofore delivered or to
be delivered to the Agent, excluding exhibits to such registration statements
but including all documents incorporated by reference therein, have been
declared effective by the Commission in such forms; no other document with
respect to such registration statements (other than a document incorporated by
reference therein) has heretofore been filed or transmitted for filing with the
Commission; and no stop order suspending the effectiveness of either
registration
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statement has been issued and no proceeding for that purpose has been instituted
or threatened by the Commission (any preliminary prospectus included in the
Second Registration Statement (as defined herein) or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), being hereinafter called a
"Preliminary Prospectus"); the various parts of each registration statement,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the registration statement at the time such part of
such registration statement became effective but excluding the Statements of
Eligibility under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), pertaining to the Indenture (the "Forms T-1"), each as amended
at the time such part became effective, being hereinafter collectively called
(i) in the case of Registration Statement No. 333-17831, the "First Registration
Statement" and (ii) in the case of Registration Statement No. 333-30175, the
"Second Registration Statement;" the First Registration Statement and the Second
Registration Statement being hereinafter from time to time called the
"Registration Statements;" the prospectus included in the Second Registration
Statement(including the prospectus supplement) relating to the Notes, in the
form in which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement being hereinafter
called the "Prospectus;" any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the Act,
as of the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus, including any supplement to the Prospectus that sets forth only
the terms of the particular issue of the Notes (a "Pricing Supplement"), shall
be deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case may be;
any reference to any amendment to either Registration Statement shall be deemed
to include any report of the Company filed pursuant to the Exchange Act after
the effective date of such Registration Statement that is incorporated by
reference in such Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the Prospectus
as amended or supplemented in relation to the Notes sold pursuant to this
Agreement, in the form in which it is filed
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with the Commission pursuant to Rule 424(b) under the Act, including any
documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated by
reference in the Prospectus, or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder;
(c) Each Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto, and the Indenture, conform or will
conform in all material respects with the applicable requirements of the Act and
the Trust Indenture Act, and the rules and regulations of the Commission
thereunder.
(d) The First Registration Statement as of its effective date
did not, and the Second Registration Statement, as amended as of any
time, did not and will not, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading and the Prospectus, as
amended and supplemented as of any such time, did not and will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or omitted
from the Second Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon, and in conformity with,
information furnished in writing to the Company by or on behalf of the Agent
specifically for use in the Second Registration Statement and the Prospectus or
any amendment thereof or supplement thereto.
(e) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will constitute valid and binding obligations of
the Company, enforceable in accordance with their respective terms and entitled
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to the benefits of the Indenture (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether such enforceability is considered in a proceeding in
equity or at law); the Indenture has been duly authorized by the Company and
qualified under the Trust Indenture Act; and the Indenture conforms to the
descriptions thereof in the Prospectus as amended or supplemented to relate to
such issuance of Notes.
(f) Since the date of the most recent financial statements
included in the Prospectus, as amended or supplemented, there has not been any
material adverse change in the consolidated financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, which is not
disclosed in the Prospectus, as amended or supplemented.
3. Agreements of the Company. The Company agrees with the
Agent that:
(a) At any time during an Offering Period or during the time a
prospectus relating to the Notes is required to be delivered under the Act: (i)
prior to amending or supplementing either Registration Statement or the
Prospectus, the Company will furnish the Agent and the Agent's counsel with a
copy of each proposed amendment or supplement (other than an amendment or
supplement to be made pursuant to incorporation by reference of a document filed
under the Exchange Act, or a Pricing Supplement or an amendment or supplement
relating solely to an offering of debt securities other than the Notes); and
(ii) prior to filing any documents under the Exchange Act to be incorporated by
reference into the Prospectus (other than documents relating solely to an
offering of debt securities other than the Notes), the Company will notify the
Agent and the Agent's counsel orally of the general subject matter of such
filing and will furnish copies of such filings to the Agent and the Agent's
counsel simultaneously with, or as promptly as practicable after, the filing of
such documents with the Commission. Subject to the foregoing sentence, the
Company will promptly cause the Prospectus together with each amendment thereof
or supplement thereto to be mailed or otherwise transmitted to the Commission
for filing pursuant to Rule 424(b)
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by an appropriate method or will promptly cause the Prospectus together with
each amendment thereof or supplement thereto to be filed with the Commission
pursuant to said Rule. If the Prospectus is amended or supplemented (other than
a Pricing Supplement or an amendment or supplement relating solely to an
offering of debt securities other than the Notes), the Agent shall be furnished
with such information relating to such filing as it may reasonably request, and
the Agent shall not be obligated to solicit offers to purchase Notes so long as
it is not reasonably satisfied that such amendment or supplement complies in all
material respects with the provisions of the Act and the Exchange Act. At any
time during an Offering Period or during the time a prospectus relating to the
Notes is required to be delivered under the Act, the Company will promptly
advise the Agent of (i) the filing of any amendment or supplement to the
Prospectus (other than a Pricing Supplement or an amendment or supplement
relating solely to an offering of debt securities other than the Notes), (ii)
the filing or effectiveness of any amendment to either Registration Statement,
(iii) the receipt by the Company of comments from the Commission relating to or
requests by the Commission for any amendment of either Registration Statement or
any amendment of or supplement to the Prospectus or for any additional
information, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of either Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its reasonable best
efforts to prevent the issuance of any such stop order or notice of suspension
of qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. Upon the Agent's request, the Company will within a reasonable time
inform the Agent of the aggregate principal amount of Notes registered under the
Registration Statements that remain unissued.
(b) Within the time during which a prospectus relating to the
Notes is required to be delivered under the Act, the Company will comply with
all requirements imposed upon it by the Act, as now and hereafter amended, and
by the rules and regulations of the Commission thereunder, as from time to time
in force, so far as necessary to permit the continuance of sales of or dealings
in the Notes as contemplated by the provisions hereof and the Prospectus. If
during such period any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to
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state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if, in the opinion of the
Company, during such period it is necessary to amend or supplement the Second
Registration Statement or the Prospectus to comply with the Act, the Company
will promptly notify the Agent to suspend the solicitation of offers to purchase
the Notes in its capacity as Agent and to cease sales of any Notes it may then
own as principal and, to the extent required under the provision in the last
sentence of this subsection (b), the Company will promptly amend or supplement
such Registration Statement or the Prospectus (at the expense of the Company) so
as to correct such statement or omission or effect such compliance. If such
amendment or supplement, and any documents, certificates, opinions and letters
furnished to the Agent pursuant to subsections (j), (k) and (l) of this Section
3 in connection with the preparation and filing of such amendment or supplement
are reasonably satisfactory in all respects to the Agent, upon the filing of
such amendment or supplement with the Commission or effectiveness of an
amendment to such Registration Statement, the Agent will resume solicitation of
offers to purchase Notes hereunder. Notwithstanding the foregoing, the Company
shall not be required to comply with the provisions of subsection (b) of this
Section 3 during any period from the time the Agent shall have been notified to
suspend the solicitation of offers to purchase the Notes in its capacity as
Agent (whether under this subparagraph (b) or otherwise under this Agreement) to
the time the Company shall determine that solicitation of offers to purchase the
Notes should be resumed; provided that if the Agent holds any Notes as principal
purchased pursuant to a Terms Agreement or otherwise pursuant to this Agreement,
the Company shall comply with the provisions of subsection (b) of this Section 3
during the period when a Prospectus is required to be delivered pursuant to the
Act.
(c) The Company will (i) comply, in a timely manner, with all
applicable requirements under the Exchange Act relating to the filing with the
Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act and, if then applicable, of the Company's proxy statements
pursuant to Section 14 of the Exchange Act.
(d) The Company will use its best efforts to qualify the Notes
for sale under the securities laws of such jurisdictions as the Agent reasonably
designates, to maintain such qualifications in effect so long as required for
the distribution of the Notes and, if requested by the Agent, to arrange for the
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determination of the legality of the Notes for purchase by institutional
investors, except that the Company shall not be required in connection therewith
to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(e) The Company will furnish to the Agent copies of the
Registration Statements and the Prospectus (including all documents incorporated
by reference therein), and all amendments of and supplements to the Registration
Statements or the Prospectus which are filed with the Commission during the
period in which a prospectus relating to the Notes is required to be delivered
under the Act (including all documents filed by an amendment or supplement with
the Commission during such period which are deemed to be incorporated by
reference therein), in each case in such quantities as the Agent may from time
to time reasonably request.
(f) So long as any of the Notes are outstanding, the Company
agrees to furnish to the Agent, upon its reasonable request, as soon as
available, all reports and financial statements filed by or on behalf of the
Company with the Commission or any national securities exchange.
(g) The Company will make generally available to its security
holders and to the Agent as soon as practicable, but in any event not later than
15 months after the end of the Company's current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period beginning after
the date upon which any amendment of or supplement to the Prospectus (other than
a Pricing Supplement or an amendment or supplement relating solely to an
offering of debt securities other than the Notes) is filed pursuant to Rule 424
under the Act, which shall satisfy the provisions of Section 11(a) of the Act.
(h) The Company shall, whether or not any sale of Notes is
consummated or this Agreement is terminated, pay all expenses incident to the
performance of its obligations under this Agreement and under any Terms
Agreement, including, without limitation, the fees and disbursements of its
accountants and counsel, the cost of printing (or other production) and delivery
of the Registration Statements and the Prospectus, all amendments thereof and
supplements thereto, the Indenture, and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and
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disbursements (including reasonable fees of counsel) incurred in connection with
the qualification of the Notes for sale and determination of eligibility for
investment of the Notes under the securities or Blue Sky laws of such
jurisdictions as the Agent may designate, the fees and disbursements of the
Trustee, the fees of any agency that rates the Notes, the fees and expenses in
connection with any listing of the Notes on the New York Stock Exchange, Inc.
(the "New York Stock Exchange") or such other securities exchange agreed to in
writing by the Company, the fees and expenses incurred with respect to any
filing with the National Association of Securities Dealers, Inc. and the
reasonable fees and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
as counsel for the Agent, or other counsel reasonably satisfactory to both the
Agent and the Company, and such other expenses, including, without limitation,
advertising expenses as may be agreed upon by the Agent and the Company;
provided, however, that with respect to any purchase of Notes by the Agent as
principal pursuant to a Terms Agreement, the fees and disbursements of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP or other counsel to the Agent shall not be paid
by the Company.
(i) During the term of this Agreement, the Company shall
furnish to the Agent such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company, the
Registration Statements, the Prospectus, any amendments thereof or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as the Agent may from time to time reasonably request and shall
promptly notify the Agent orally, followed by written notice of any downgrading,
or of its receipt of any notice of any intended downgrading, in the rating
accorded any of the Company's securities by Xxxxx'x Investor Service or Standard
& Poor's Corporation or, if one of them no longer rates the securities of the
Company, another "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Act.
(j) Each time either Registration Statement or the Prospectus
is amended or supplemented (other than a Pricing Supplement or an amendment or
supplement relating solely to an offering of debt securities other than the
Notes) and each time an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q, or a Report on Form 8-K (but only if the Agent so requests within a
reasonable time after its filing) filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, the
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Company will deliver or cause to be delivered forthwith to the Agent a
certificate of the Company signed by the Chairman of the Board, any Vice
Chairman, the President or any Vice President and by the principal financial or
accounting officer of the Company (or another officer or officers acceptable to
the Agent), dated the date of the effectiveness of such amendment or the date of
filing with the Commission of such supplement or document, as the case may be,
in form reasonably satisfactory to the Agent, to the effect that the statements
contained in the certificate referred to in Section 4(b)(iii) that was last
furnished to the Agent (either pursuant to Section 4(b)(iii) or pursuant to this
Section 3(j)) are true and correct at the time of the effectiveness of such
amendment or the time of filing of such supplement or document, as the case may
be, as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statements, as amended at the time of
effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such certificate) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section
4(b)(iii) but modified, if necessary, to relate to the Registration Statements,
as amended at the time of the effectiveness of such amendment, and to the
Prospectus, as amended and supplemented at the date of such certificate.
(k) Each time either Registration Statement or the Prospectus
is amended or supplemented (other than a Pricing Supplement or an amendment or
supplement relating solely to an offering of debt securities other than the
Notes), and each time an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Report on Form 8-K (but only if the Agent so requests within a
reasonable time after its filing) filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, the Company shall furnish to or
cause to be furnished forthwith to the Agent the written opinion of the General
Counsel of the Company or other counsel reasonably satisfactory to the Agent
dated the date of the effectiveness of such amendment or the date of filing with
the Commission of such supplement or document, as the case may be, in form
reasonably satisfactory to the Agent, to the effect set forth in Exhibit C
hereto. In lieu of such opinion, counsel last furnishing such an opinion to the
Agent may furnish to the Agent a letter to the effect that the Agent may rely on
such last opinion to the same extent as though it were dated the date of such
letter and authorizing reliance on such last opinion (except that statements in
such last opinion will be deemed to relate to the Registration Statements, as
amended at the time of the
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effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such letter).
(l) Each time that either Registration Statement or the
Prospectus is amended or supplemented to set forth amended or supplemental
financial information (other than a Pricing Supplement or any amendment or
supplement relating solely to an offering of debt securities other than the
Notes) and each time an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Report on Form 8-K (but only if the Agent so requests within a
reasonable time after its filing) filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus to set forth financial information
included in or derived from the Company's consolidated financial statements or
accounting records as of the end of the most recent fiscal quarter or fiscal
year, the Company shall cause Coopers & Xxxxxxx L.L.P., its independent
certified public accountants, forthwith to furnish the Agent a letter, dated the
date of the effectiveness of such amendment or the date of filing of such
supplement or document, as the case may be, in form satisfactory to the Agent,
of the same tenor as the letter referred to in Section 4(b)(iv) hereof but
modified to relate to the Registration Statements and Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company; provided, that if either
Registration Statement or the Prospectus is amended or supplemented solely to
include or incorporate by reference financial information with respect to a
fiscal quarter, Coopers & Xxxxxxx L.L.P. may limit the scope of such letter to
the unaudited financial statements included in such amendment or supplement.
(m) Each acceptance by the Company of an offer for the
purchase of Notes and each sale of Notes to the Agent as principal shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and correct in
all material respects at the time of such acceptance or sale, as the case may
be, as though made at and as of such time, and an undertaking that such
representations and warranties will be true and correct in all material respects
at the time of delivery to the purchaser or his agent, or the Agent, or the
Agent as principal, of the Notes relating to such acceptance, as the case may
be, as though made at and as of such time (and it is understood that such
representations and warranties shall relate to the Registration
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Statements and the Prospectus as amended and supplemented to each such time).
(n) Anything to the contrary in subsections (i), (j), (k) and (l) of
this Section 3 notwithstanding, if, at the time of any required notice,
amendment or supplement to either Registration Statement or the Prospectus, the
Company shall have instructed the Agent to suspend solicitation of offers to
purchase the Notes in its capacity as Agent of the Company and the Agent does
not then hold any Notes acquired by it as principal pursuant to a Terms
Agreement, the Company shall not be obligated to furnish or cause to be
furnished to the Agent any notice, certificate, opinion or letter otherwise
required until such time as it shall determine that solicitation of offers to
purchase the Notes should be resumed; and provided further that, prior to
resuming such solicitation the Agent shall be entitled to receive any such
notices, certificates, opinions or letters not previously furnished, accurate as
of the date of such notice, certificate, opinion or letter.
4. Conditions to the Obligations of the Agent. The Agent's obligations
to solicit offers to purchase Notes as agent of the Company, the Agent's
obligations to purchase Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to purchase Notes from the
Company will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein contained, to
the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof and to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed (in the case of the Agent's obligations
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of the Agent's or any other purchaser's obligation to purchase Notes,
at the time the Company accepts the offer to purchase such Notes and at the time
of purchase) and (in each case) to the following additional conditions precedent
when and as specified:
(a) On the corresponding Settlement Date:
(i) There shall not have occurred any change in or
affecting particularly the business or properties of the Company and
its subsidiaries from that set forth in the Second Registration
Statement, as amended or supplemented, that, in the Agent's judgment,
makes it impracticable to
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market the Notes on the terms and in the manner contemplated in the
Prospectus except, in the case of any purchase of Notes by the Agent as
principal, as disclosed to the Agent in writing by the Company before
it accepted the offer to purchase such Notes.
(ii) There shall not have occurred any (A) suspension
or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market, (B)
declaration of a general moratorium on commercial banking activities in
New York by either federal or New York state authorities or (C) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency that, in
the Agent's judgment, is material and adverse and, in the case of any
of the events described in clauses (ii)(A) through (C), such event
makes it, in the Agent's judgment, impracticable to market the Notes on
the terms and in the manner contemplated by the Prospectus, as amended
or supplemented, except, in the case of any purchase of Notes by the
Agent as principal, for any such event occurring before the Company
accepted the offer to purchase such Notes.
(iii) There shall not have been any downgrading, nor
any notice given of any intended downgrading, in the rating accorded
any of the Company's securities by Xxxxx'x Investor Service or Standard
& Poor's Corporation or, if one of them no longer rates the securities
of the Company, another "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Act, except, in the case of any purchase of Notes by the
Agent as principal, as disclosed to the Agent in writing by the Company
before it accepted the offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any
agreement by the Agent to purchase Notes as principal, on the
corresponding Settlement Date:
(i) The Company shall have furnished to the Agent the
opinion of the General Counsel of the Company (or other counsel for the
Company reasonably acceptable to the
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Agent) on the Commencement Date, and, on the Settlement Date will
furnish the opinion of the General Counsel of the Company (or other
counsel for the Company reasonably acceptable to the Agent) and, if
called for by a Terms Agreement, the opinion of other counsel, dated
the Commencement Date or the Settlement Date, as the case may be, to
the effect set forth in Exhibit C hereto.
(ii) The Agent shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Agent (or other
counsel reasonably acceptable to the Agent and the Company), an opinion
dated the Commencement Date or the Settlement Date, as the case may be,
to the effect set forth in Exhibit D hereto.
(iii) The Company shall have furnished to the
Agent a certificate of the Company, signed by the Chairman of
the Board, any Vice Chairman, the President or any Vice
President and by the principal financial or accounting officer
of the Company (or another officer or officers acceptable to the
Agent), dated the Commencement Date or the Settlement Date, as the case
may be, to the effect that each signatory of such certificate has
carefully examined the Registration Statements, as amended as of the
date of such certificate, the Prospectus, as amended and supplemented
as of the date of such certificate, and this Agreement and that:
(A) the representations and
warranties of the Company in this Agreement are true and
correct in all material respects on and as of the date of
such certificate with the same effect as if made on the date
of such certificate and the Company has complied in all
material respects with all the agreements and satisfied in
all material respects all the conditions on its part to be
performed or satisfied as a condition to the obligations of
the Agent under this Agreement;
(B) no stop order suspending the
effectiveness of either Registration Statement has been
issued and no proceedings for that purpose have been
instituted or, to their knowledge, have been threatened; and
(C) since the date of the most
recent financial statements included in the Prospectus, as
amended and supplemented, there has been no material
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adverse change in the consolidated financial condition or
results of operations of the Company and its subsidiaries,
taken as a whole, which is not disclosed in the Prospectus, as
amended or supplemented.
(iv) Coopers & Xxxxxxx L.L.P., or another nationally
recognized independent accounting firm, shall have furnished to the
Agent a letter or letters, dated the Commencement Date or the
Settlement Date, as the case may be, in form and substance reasonably
satisfactory to the Agent, to the effect set forth in Exhibit E hereto.
(v) The Company shall have furnished to the Agent
such appropriate further information, certificates and
documents as the Agent may reasonably request.
5. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless the Agent against any losses, claims, damages or liabilities,
joint or several, to which the Agent may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in either Registration Statement
when it became effective, or in the Second Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related Preliminary
Prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and will reimburse the Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Agent specifically
for use in the preparation thereof and (ii) such indemnity with respect to any
preliminary prospectus, the Prospectus or any preliminary supplemental
prospectus, shall not inure to the benefit of the Agent (or any person
controlling the Agent) if the Company shall have delivered sufficient quantities
of the Prospectus, as amended and supplemented, to the Agent within a reasonable
time prior to the earlier of the delivery of the written confirmation of the
sale of such Notes or the delivery of such Notes to the person
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asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Prospectus as so amended and supplemented
(excluding documents incorporated by reference) was not sent or given to such
person by the Agent at or prior to the earlier of the delivery of the written
confirmation of the sale of such Notes or the delivery of such Notes to such
person in any case where such sending or giving of a prospectus is required by
the Act, and the untrue statement or omission of a material fact contained in
such preliminary prospectus, such Prospectus or such preliminary supplemental
prospectus, was corrected in the Prospectus, as so amended and supplemented,
provided to the Agent.
(b) The Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any part of either Registration Statement when it became effective,
or in the Second Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related Preliminary Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Agent specifically for use in the preparation
thereof, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent that it shall wish, to assume
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the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnified party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then the indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Agent participating in the offering that
gave rise to such losses, claims, damages or liabilities on the other from the
offering of such Notes, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Agent on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Agent on the other in connection with the offering of such Notes shall
be deemed to be in the same proportion as the total net proceeds from the
offering of such Notes by the Agent (before deducting expenses) received by the
Company bear to the total commissions received by the Agent in respect thereof.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Agent agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were to
be determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the first
sentence of this subsection (d). The amount paid by an indemnified party as a
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result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim (which shall be limited as
provided in subsection (c) above if the indemnifying party has assumed the
defense of any such action in accordance with the provisions thereof) which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Agent shall not be required to contribute any amount in
excess of the amount by which the total price at which the Notes were offered
and sold to the public by the Agent exceeds the amount of any damages which the
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Promptly after receipt by an indemnified party under this
subsection (d) of notice of the commencement of any action against such party in
respect of which a claim for contribution may be made against an indemnifying
party under this subsection (d), such indemnified party shall notify the
indemnifying party in writing of the commencement thereof if the notice
specified in subsection (c) above has not been given with respect to such
action; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under this subsection (d).
(e) The obligations of the Company under this Section 5 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Agent within the meaning of the Act or the Exchange Act; and the obligations
of the Agent under this Section 5 shall be in addition to any liability which
the Agent may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company (including any person who, with his
consent, is named in the Second Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Second Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act.
6. Termination of the Appointment of the Agent. This Agreement
may be terminated at any time by either party hereto
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upon the giving of written notice of such termination to the other party hereto.
The termination of this Agreement shall not require termination of any agreement
by the Agent to purchase Notes as principal, and the termination of any such
Agreement shall not require termination of this Agreement. If this Agreement is
terminated, neither party shall have any liability to the other party hereto,
except as provided in the first sentence of the second paragraph of Section
1(a), the last proviso of Section 3(b), and Sections 3(g), 3(h), 5, 7 and 11,
and except that, if at the time of termination an offer to purchase any of the
Notes has been accepted by the Company but the time of delivery to the purchaser
or its agent of the Note or Notes relating thereto has not occurred, the
Company's representations and warranties stated in Section 2 and its obligations
under Sections 1(c), 3(a), 3(b), 3(c), 3(e), 3(i), 3(j), 3(k), 3(l), 3(m) and 4
shall also remain in full force and effect and not be terminated until the
delivery of such Notes.
7. Representations and Indemnities to Survive. With respect to
the Agent's solicitation of offers to purchase Notes as agent of the Company or
the Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise, the respective agreements, representations, warranties,
indemnities and other statements of the Company or its officers and of the Agent
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Agent or the
Company or any of the officers, directors or controlling persons referred to in
Section 5 hereof, and will survive delivery of and payment for the Notes for a
period extending to the earlier of (i) three years from the corresponding
Settlement Date for such Notes or (ii) the expiration of any applicable statute
of limitations governing such solicitation or purchase of Notes.
8. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Agent, will be mailed,
delivered or transmitted to it by any standard form of telecommunications at:
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Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
MTN Product Manager
Fax:(000) 000-0000
or, if sent to the Company, will be mailed, delivered or transmitted by any
standard form of telecommunications at:
Xxxxx Xxxxxx Holdings Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Treasurer
Reference Medium-Term Note Program
Fax: (000) 000-0000
and
000 Xxxxxxxxx Xxxxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxx, IBD
Reference Center
Fax: (000) 000-0000
Any party to this Agreement may change the address to which notices or
communications to it shall be directed by giving notice in writing to the other
parties hereto.
9. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 5 hereof.
Nothing expressed or implied in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 5 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof except to the extent provided for in Section 4
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal
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representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase. This Agreement and the rights and obligations of the Agent hereunder
may not be assigned without the prior written consent of the Company.
10. Waivers, Etc. Neither any failure nor delay on the part of
any party to exercise any right, remedy, power or privilege under this Agreement
(singly and collectively referred to as a "Right") shall operate as a waiver of
such Right, nor shall any single or partial exercise of any Right preclude any
other or further exercise of any Right, nor shall any waiver of any Right with
respect to any occurrence be construed as a waiver of any Right with respect to
any other occurrence.
11. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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If the foregoing is in accordance with the Agent's understanding of
this agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and the Agent's acceptance shall represent a binding
agreement between the Company and the Agent.
Very truly yours,
XXXXX XXXXXX HOLDINGS INC.
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above.
XXXXX XXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
and Assistant Treasurer
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