BOEING CAPITAL CORPORATION PRIVATE
(A DELAWARE CORPORATION)
SERIES X MEDIUM-TERM NOTES
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
_______, 1997
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower, World Financial Center
New York, New York 10281-1218
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
Boeing Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Chase Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated _____________ and PaineWebber
Incorporated (each, an "Agent", and collectively, the "Agents") with respect to
the issue and sale by the Company of its Series X Medium-Term Notes Due 9 Months
or More from Date of Issue (the "Notes"). The Notes will be either an
authorized series of the Company's senior unsecured debt securities (the "Senior
Securities") issued pursuant to an indenture dated as of April 15, 1987, as
supplemented by the First Supplemental Indenture dated as of June 12, 1995 (the
"Senior Indenture"), between the Company and Bankers Trust Company, as trustee
("Bankers Trust" or the "Trustee"), or an authorized series of the Company's
subordinated unsecured debt securities (the "Subordinated Securities") to be
issued pursuant to an indenture dated as of June 15, 1988, as supplemented by
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the First Supplemental Subordinated Indenture dated as of June 12, 1995 (the
"Subordinated Indenture") between the Company and Bankers Trust, as successor
trustee. The Senior Securities and the Subordinated Securities are herein
collectively referred to as the "Securities" and the Senior Indenture and the
Subordinated Indenture are herein collectively referred to as the "Indentures".
All capitalized terms used herein, unless otherwise defined herein, shall have
the respective meanings ascribed to them in the Indentures.
As of the date hereof, the Company has authorized the issuance and sale of
up to U.S. $400,000,000 aggregate initial offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies, units or composites of two or more thereof as the Company shall
designate at the time of issuance) of Notes to or through the Agents pursuant to
the terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors (as may from time to time be
agreed to by the Company and the applicable Agent) and for the sale of Notes by
the Company directly to investors (as may from time to time be agreed to by the
Company and the applicable Agent), in which case such Agent will act as an agent
of the Company in soliciting purchases of the Notes.
The Company has filed with the Securities and Exchange Commission (the
"SEC") registration statements on Form S-3 (Nos. 33-58989 and 333-37635) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the SEC under the
1933 Act (the "1933 Act Regulations"). Such registration statements have been
declared effective by the SEC and the Indentures have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statements (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplement and
pricing supplement relating to the Notes, including all documents incorporated
therein by reference, as from time to time amended or supplemented by the filing
of documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act") or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
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1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents except as otherwise described below. The Company agrees
that, during the period the Agents are acting as the Company's agents hereunder,
unless otherwise agreed, the Company will not appoint other agents to act on its
behalf, or to assist it, in the placement of the Notes unless the Company has
entered into an agreement or agreements (which may incorporate by reference
certain provisions hereof and which shall incorporate and be subject to the
commission schedule set forth in Schedule A hereto with respect to any Notes
sold through such agent or agents, acting as an agent) with such agent or agents
and has notified the Agents promptly upon entering into any such agreement.
(b) SALE OF NOTES. The Company shall not sell or approve the solicitation
of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the aggregate initial offering price
of Notes registered pursuant to the Registration Statement. The Agents shall
have no responsibility for maintaining records with respect to the aggregate
initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. Such Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by it on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. The Company may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by it and accepted by the Company.
Such Agent shall not have any liability to the Company in the event that any
such purchase is not consummated for any reason. If the Company shall default
on its obligation to deliver Notes to a purchaser whose offer it has accepted,
the Company shall (unless the Company's default arose out of a default, gross
negligence or willful misconduct on the part of the Agent) (i) hold such Agent
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay to such Agent
any commission to which it would otherwise be entitled.
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(e) RELIANCE. The Company and the Agents agree that any Notes purchased
by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as agent shall be placed by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the manner
provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to one or more Agents as principal or through an
Agent as agent), as of the date of each delivery of Notes (whether to one or
more Agents as principal or through an Agent as agent) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed with the SEC any
document incorporated by reference into the Prospectus (each of the times
referenced above being referred to herein as a "Representation Date"), as
follows:
(i) REGISTRATION STATEMENT AND THE PROSPECTUS. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective, complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder (the "1939 Act Regulations"). The
Registration Statement, at the time the Registration Statement became
effective, did not, and as of the applicable Representation Date 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. The Prospectus, at the time the Registration
Statement became effective did not, and as of the applicable Representation
Date will not, contain an untrue statement of a material fact or omit 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;
PROVIDED, HOWEVER, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by any of
the Agents expressly for use in the Registration Statement or Prospectus or
to that part of the Registration Statement which shall constitute the
Statement of Eligibility under the 1939 Act (Form T-1) of the Trustees
under the Indentures. After a post-effective amendment to the Registration
Statement is filed and has become effective under the 1933 Act, the
representations and warranties contained in this subsection shall refer to
the Registration Statement as so amended.
(ii) ACCOUNTANTS. To the best of the Company's knowledge, the
accountants who certified the financial statements and supporting schedules
included or incorporated by reference in the Registration Statement and
Prospectus are independent
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public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated financial statements
included or incorporated by reference in the Registration Statement and
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved, except as indicated therein; and the supporting schedules
included in the Registration Statement present fairly the information
required to be stated therein.
(iv) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the SEC, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
became, and any amendments thereto become, effective, did not and will not
contain an 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, in the light of the circumstances under which they were or are
made, not misleading.
(v) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated or incorporated by
reference therein or contemplated thereby, (A) there has been no material
adverse change in the financial condition, earnings or cash flow of the
Company and its subsidiaries considered as one enterprise, or any
development reasonably likely to have a material adverse effect on the
financial condition of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
there has been no material transaction entered into by the Company or any
of its subsidiaries other than those in the ordinary course of business,
(C) there has been no amendment, supplement or revision to the Operating
Agreement dated as of January 15, 1975 between the Company and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Corporation ("MDC"), other than (1) the amendment dated February 8,
1989 amending and restating such Agreement to, among other things, add
Boeing Capital Services Corporation (the "Holding Company") as a party to
such Agreement; (2) the Amended and Restated Operating Agreement dated as
of April 12, 1993; (3) the Supplemental Operating Agreement, dated as of
August 1, 1997 between the Holding Company and The Boeing Company
("Boeing"); and (4) the Operating Agreement dated at of August 1, 1997
between the Holding Company and the Company.
(vi) DUE INCORPORATION AND QUALIFICATION. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement; and the
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Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which the failure so to qualify
and be in good standing would materially and adversely affect the financial
condition of the Company.
(vii) SUBSIDIARIES. Each subsidiary of the Company having a net
worth of at least $10,000,000 (a "Subsidiary") has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the failure so to qualify and be in good standing
would materially and adversely affect the financial condition of the
Company and its subsidiaries considered as one enterprise; all of the
issued and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued and is fully paid and non-assessable; and,
except as otherwise disclosed in the Registration Statement or the
Prospectus, the capital stock of each such Subsidiary owned by the Company,
directly or through subsidiaries, is owned free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) CAPITAL STOCK. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 and incorporated by
reference into the Registration Statement and the Prospectus and the shares
of issued and outstanding Common Stock set forth thereunder have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned, of record and beneficially, by the Holding Company.
(ix) NO DEFAULTS; REGULATORY APPROVALS; NO AUTHORIZATION, APPROVAL
OR CONSENT REQUIRED. Neither the Company nor any of its Subsidiaries is in
violation of its charter or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party or by which it or any of
them or their properties may be bound; and the execution and delivery of
this Agreement and the Indentures and the consummation of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
its Subsidiaries is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or any of its
Subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or, to the best of
its knowledge, any law, administrative regulation or administrative or
court decree; and no consent, approval, authorization, order or decree of
any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except such as may be
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required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, the
1939 Act Regulations or state securities or Blue Sky laws in connection
with the purchase and distribution of the Notes.
(x) REGULATORY CERTIFICATES, AUTHORITIES AND PERMITS. The Company
and its Subsidiaries own or possess adequate certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
and neither the Company nor any of its Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
adversely affect the financial condition, earnings or cash flow of the
Company and its subsidiaries considered as one enterprise.
(xi) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth in
the Prospectus or incorporated by reference therein, there is no action,
suit or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its Subsidiaries
which is required to be disclosed in the Prospectus or which might result
in any material adverse change in the financial condition, earnings or cash
flow of the Company and its subsidiaries considered as one enterprise, or
in any development reasonably likely to have a material adverse effect on
the financial condition of the Company and its subsidiaries, considered as
one enterprise, or which might materially and adversely affect the material
properties or assets thereof or might materially and adversely affect the
consummation of the transactions contemplated by the Indentures or this
Agreement or the transactions contemplated herein or therein; and there are
no material contracts or documents of the Company or any of its
Subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Regulations which have not been so
filed.
(xii) AUTHORIZATION AND VALIDITY OF THE NOTES. The Notes have been
duly authorized for issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and of the Indentures against payment of the consideration
therefor in accordance with this Agreement, the Notes will be valid and
legally binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally or by general equity principles, and will be entitled to the
benefits of the Indentures, which will be substantially in the forms
heretofore delivered to the Agents; and the Notes and the Indentures
conform in all material respects to all statements relating thereto
contained in the Prospectus.
(xiii) NO LABOR DISPUTES. Other than as set forth in the Prospectus,
no labor dispute by the employees of the Company or any Subsidiary exists
or, to the
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knowledge of the Company, is imminent which might be expected to have a
material adverse effect upon the financial condition, earnings or cash flow
of the Company and its subsidiaries, considered as one enterprise.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Company to such Agent or Agents as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto.
3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent and the
Company, Notes shall be purchased by such Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by one or more Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in Exhibit A hereto and may be agreed upon orally,
with written confirmation prepared by such Agent or Agents and sent by
telecopier to the Company). An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the agreement of one or more
Agents to purchase Notes from the Company as principal. Each purchase of Notes,
unless otherwise agreed, shall be at a discount from the principal amount of
each such Note equivalent to the applicable commission set forth in Schedule A
hereto. The Agents may engage the services of any other broker or dealer in
connection with the resale of the Notes purchased by them as principal and may
allow any portion of the discount received in connection with such purchases
from the Company to such brokers and dealers. At the time of each purchase of
Notes by one or more Agents as principal, the Company and such Agent or Agents
shall agree and specify orally, confirmed in writing, whether any stand-off
provision (as referred to in Section 4(m) hereof) or any officers' certificate,
opinion of counsel or comfort letter (such as those referred to in Sections
7(b), 7(c) and 7(d) hereof) will be required.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable best efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the Prospectus. The
Agents are not authorized to appoint sub-agents with respect to Notes sold
through them as agent. All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed to by the Company and
such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company
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has advised such Agent that such solicitation may be resumed.
Upon settlement, the Company agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as
may be otherwise specified in the applicable Pricing Supplement, the Notes will
be issued in denominations of U.S. $100,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to the
sale of Notes shall be agreed upon from time to time by the Company, the Agents
and the Trustee (the "Procedures"). The Agents and the Company agree to
perform, and the Company agrees to cause the Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. If at any time when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agents of the Company and to cease sales of any Notes
the Agents may then own as principal, and the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(b) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. On or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to counsel for the Agents, confirmed in writing, and shall cause the
Prospectus to be
9
amended or supplemented to include or incorporate by reference capsule financial
information with respect to the results of operations of the Company for the
period between the end of the preceding fiscal year and the end of such quarter
or for such fiscal year, as the case may be, and corresponding information for
the comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding of such
amounts or as shall be required by the 1933 Act or the 1933 Act Regulations.
(c) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. On or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(d) EARNINGS STATEMENTS. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each twelve-month
period 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 1933 Act) of the Registration Statement.
(e) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give counsel to
the Agents notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish counsel to the Agents with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time in advance
of such proposed filing, other than such amendments or supplements providing
solely for a change in the interest rates or redemption dates of the Notes or a
change in the principal amount of the Notes remaining to be sold or other
similar changes.
(f) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents or their
counsel immediately (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the SEC for filing of any
supplement to the Prospectus (other than pricing supplements, except as set
forth in the Administrative Procedures) or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the SEC with respect to the Registration
Statement or the Prospectus, (iv) of any request by the SEC for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the
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lifting thereof as soon as practicable.
(g) DIVIDENDS. The Company will notify the Agents immediately of any
material change in the Company's historical dividend policy.
(h) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The Company
will deliver to the Agents as many signed and conformed copies of the
registration statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(i) COPIES OF FINANCIAL REPORTS. The Company will furnish to the Agents,
at the earliest time the Company makes the same available to others, copies of
its annual reports and other financial reports furnished or made available to
the public generally.
(j) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may reasonably designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports, that the Company has knowledge of, as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided.
(k) 1934 ACT FILINGS. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be required
to comply with the provisions of subsections (a), (b) or (c) of this Section
during any period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agent pursuant to a request from
the Company and (ii) no Agent shall then hold any Notes purchased as principal
pursuant hereto (but in no event longer than six months), until the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or an Agent shall subsequently purchase Notes from the Company as
principal.
(m) STAND-OFF AGREEMENT. If requested by an Agent in connection with a
purchase by it of Notes as principal in accordance with Section 3(a) hereof,
such transaction shall be subject to the terms of such stand-off provision as
shall be agreed by the Company and the applicable Agent at the time of such
agreement to purchase Notes as principal.
11
5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to solicit
offers to purchase the Notes as agent of the Company, and the obligations of any
purchasers of the Notes sold through an Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the Company herein
and to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein contained
and to the following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance reasonably satisfactory to the Agents and their counsel:
(i) OPINION OF COMPANY COUNSEL. The opinion of any in-house
counsel of the Company, or other counsel reasonably satisfactory to the
Agents, substantially in the form of Exhibit B hereto.
In rendering such opinion, such counsel may rely (x) as to the matters
of New York law and as to the matters relating to the 1939 Act upon the
opinion referred to in Section 5(a)(ii) without independent verification,
(y) as to the matters involving the application of laws of any jurisdiction
other than the States of California, Delaware and New York or the United
States, to the extent such counsel deems proper and specified in such
opinion, upon the opinion of other counsel of good standing whom such
counsel believes to be reliable and who are reasonably satisfactory to
counsel to the Agents, and (z) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the
Company and public officials.
(ii) The opinion of ▇▇▇▇▇ & Wood LLP, counsel to the Agents, with
respect to the validity of the Indentures, the Notes, the Registration
Statement, the Prospectus and other related matters as the Agents shall
reasonably request.
(iii) In giving their opinions required by subsection (a)(i) and
(a)(ii), respectively, of this Section 5(a), counsel for the Company and
Brown & Wood LLP shall each additionally state (with appropriate
qualifications) that nothing has come to their attention that would lead
them to believe that the Registration Statement, at the time it became
effective (or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the SEC subsequent
to the effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such filing,
as the case may be) or at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, at the date hereof (or, if
such
12
opinion is being delivered in connection with the purchase of Notes from
the Company by one or more Agents as principal pursuant to Section 7(c)
hereof, at the date of any agreement by such Agent or Agents to purchase
Notes as principal and at the Settlement Date with respect thereto, as the
case may be) (included or) includes an 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.
(b) OFFICERS' CERTIFICATE. At the date hereof there shall not have been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the financial
condition, earnings or cash flow, of the Company and its subsidiaries considered
as one enterprise, or any development reasonably likely to have a material
adverse effect on the financial condition of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Agents shall have received a certificate of the President, any
Vice President or the Treasurer or Assistant Treasurer of the Company, dated as
of the date hereof, to the effect (i) that there has been no such material
adverse change, (ii) that the other representations and warranties of the
Company contained in Section 2 are true and correct with the same force and
effect as though expressly made at and as of the date of such certificate, (iii)
that the Company has complied with all material agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the date of
such certificate, (iv) that there are no legal or governmental proceedings
pending or, to the best of such officer's knowledge, threatened, which are
required to be disclosed in the Registration Statement other than those
disclosed therein, and (v) that no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC.
(c) COMFORT LETTER. At the date hereof or such other date as may be
acceptable to the Agents, the Agents shall have received from ▇▇▇▇▇ & ▇▇▇▇▇ or
Deloitte & Touche or other accountants reasonably satisfactory to the Agents and
their counsel, a letter, dated as of the date hereof or such Settlement Date, in
form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations, and no information concerning their relationship with or interest
in the Company is required by Item 10 of the Registration Statement.
(ii) In their opinion, the financial statements and supporting
schedules examined by them and included or incorporated by reference in the
Registration Statement and Prospectus and audited by them and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations with
respect to registration statements on Form S-3 and the 1934 Act and the 1934 Act
Regulations.
13
(iii) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim financial
statements of the Company and its indicated Subsidiaries, a reading of the
minute books of the Company and such Subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company and such
Subsidiaries responsible for financial and accounting matters with respect
to the unaudited consolidated financial statements included or incorporated
by reference in the Registration Statement and Prospectus and the latest
available interim unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as may be specified
in such letter, and on the basis of such inquiries and procedures nothing
came to their attention that caused them to believe that: (A) the
unaudited consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the 1934
Act Regulations or were not fairly presented in conformity with generally
accepted accounting principles in the United States applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated by reference therein, or (B) at a specified date
not more than five days prior to the date of such letter, there was any
change in the consolidated shareholders' equity or any increase in the
consolidated long-term debt of the Company and its subsidiaries or any
decrease in the consolidated net assets of the Company and its
subsidiaries, in each case as compared with amounts shown on the most
recent consolidated balance sheet of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus or, during the period from the date of such balance sheet to a
specified date not more than five days prior to the date of such letter,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated operating income, net income or net income
per share of the Company and its subsidiaries, except in each such case as
set forth in or contemplated by the Registration Statement and Prospectus
or except for such exceptions enumerated in such letter as shall have been
agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their report
included in the Registration Statement and the Prospectus and the limited
procedures referred to in clause (3) above, they have carried out certain
other specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included
in the Registration Statement and the Prospectus and which are specified by
the Agents, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such
letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such other documents and
opinions as such counsel may reasonably require (it being acknowledged that the
opinion of counsel being delivered pursuant to Section 5(a)(i) above is
reasonable in light of the circumstances at the date hereof) for the purpose
14
of enabling such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein contemplated
shall be satisfactory in form and substance to the Agents and to counsel to the
Agents.
The obligations of the Agents to purchase Notes as principal will be
subject to the following further conditions: (i) the rating assigned by any
nationally recognized securities rating agency to any debt securities of the
Company as of the date of the agreement to purchase Notes as principal shall not
have been lowered and no such rating agency shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
ratings of any debt securities of the Company since that date and (ii) there
shall not have come to the attention of the Agent any facts that would cause
such Agent to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Notes, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time, not
misleading.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(d) hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning payment of expenses under
Section 10 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section 11 hereof, the provisions relating to
governing law and forum set forth in Section 14 and the provisions relating to
parties set forth in Section 15 hereof shall remain in effect.
6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent unless the
failure arose from the gross negligence or willful misconduct of such Agent or
from the default by such Agent in the performance of its obligations hereunder.
If such failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
15
7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent or Agents or to the purchaser or its agent, as the case may be, of
the Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that there is filed
with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form 10-K
incorporated by reference into the Prospectus, and otherwise only (i) as may be
required in connection with a sale pursuant to Section 3(a) or (ii) at such
times as may be reasonably requested by the Agents in the event of a material
change in circumstances in respect of the Company, the Company shall furnish or
cause to be furnished to the Agent(s) forthwith a certificate dated the date of
filing with the SEC of such document, the date requested by the Agents or the
date of such sale, as the case may be, in form reasonably satisfactory to the
Agent(s) to the effect that the statements contained in the certificate referred
to in Section 5(b) hereof which were last furnished to the Agents are true and
correct at the time of such filing, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate substantially similar to the certificate
referred to in Section 5(b) hereof, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K incorporated by reference into the Prospectus, and otherwise only (i) as
may be required in connection with a sale pursuant to Section 3(a) or (ii) at
such times as may be reasonably requested by the Agents in the event of a
material change in circumstances in respect of the Company, the Company shall
furnish or cause to be furnished forthwith, and in any case promptly upon
request, to the Agent(s) and to counsel to the Agents the written opinion of
in-house counsel to the Company, or other counsel satisfactory to the Agent(s),
dated the date of filing with the SEC of such document, the date requested by
the Agent(s) or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s), including such reductions or
limitations as shall be reasonably satisfactory to the Agent(s), but modified,
as necessary, to
16
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K incorporated by reference into the Prospectus, and otherwise only (i) as
may be required in connection with a sale pursuant to Section 3(a) or (ii) at
such times as may be reasonably requested by the Agents in the event of a
material change in circumstances in respect of the Company, the Company shall
cause Ernst & Young or Deloitte & Touche (as the case may be) forthwith to
furnish such Agent a letter, dated the date of the filing of such document with
the SEC, the date of such request or the date of such sale, as the case may be
in form reasonably satisfactory to the Agent(s), substantially similar to the
portions of the letter referred to in clauses (1) and (2) of Section 5(c) hereof
but modified to relate to the Registration Statement and Prospectus as amended
and supplemented to the date of such letter, and substantially similar to the
portions of the letter referred to in clauses (3) and (4) of said Section 5(c)
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.
8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT(S). The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls such Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any
17
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information furnished by the Agents as aforesaid), if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent and
reasonably satisfactory to the Company), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission (except as
made in reliance upon and in conformity with information furnished by the
Agents as aforesaid), to the extent that any such expense is not paid under
(i) or (ii) above.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished to the
Company by such Agent.
(c) GENERAL. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances.
9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is unavailable to
the Company, on the one hand, or the Agents, on the other, as an indemnified
party in relation to each other under paragraph 8(a) or 8(b) thereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the applicable Agents on the other. The relative fault of
the Company on the one hand and the Agents on the other shall be determined by
18
references 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 Agents and
the party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to Section 8 were determined by pro rata allocation or by
any other method of allocation other than the allocation specified in the
immediately preceding paragraph. The amount paid or payable by any indemnified
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph 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, no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes offered and sold to the public through such Agent
exceeds the amount of any damages which such Agent has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any such indemnified
party at law or in equity.
10. PAYMENT OF EXPENSES.
The Company will pay the following expenses incident to the performance of
its obligations under this Agreement:
(a) The preparation and filing of the Registration Statement and all
amendments thereto;
(b) The preparation, printing, issuance and delivery of the Notes;
(c) The fees and disbursements of the Company's accountants and of the
Trustees;
(d) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(e) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(e) The printing and delivery to the Agents in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto, and
of the Prospectus and any amendments or supplements thereto;
(f) The printing and delivery to the Agents of copies of the Indentures
and all
19
supplements and amendments thereto and any Blue Sky or Legal Investment Survey;
(g) Any fees charged by rating agencies for the rating of the Notes;
(h) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.; and
(i) The reasonable fees and disbursements of counsel to the Agents.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agents or any controlling person of an Agent, or by
or on behalf of the Company, and shall survive each delivery of and payment for
any of the Notes.
12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company, as to one or more
of the Agents, or an Agent, as to itself, upon the giving of 7 days' written
notice of such termination to the other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent or Agents may terminate any agreement hereunder by such Agent
or Agents to purchase Notes as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the financial condition, earnings or cash flow of the Company and its
subsidiaries, considered as one enterprise, or any development reasonably likely
to have a material adverse effect on the financial condition of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
significant escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of such Agent or Agents, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if trading in
any securities of the Company has been suspended by the SEC or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
SEC or any other governmental authority, or if a banking moratorium has been
declared by either Federal or New York authorities, or if a banking moratorium
has been declared by the relevant authorities in the country or countries of
origin of any foreign currency or currencies in which such Notes are denominated
or payable, or (iv) if the rating assigned by
20
any nationally recognized securities rating agency to any debt securities of the
Company as of the date of such agreement shall have been lowered since that date
or if any such rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its ratings of any
debt securities of the Company since that date, or (v) if there shall have come
to the attention of such Agent or Agents any facts that would cause them to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading. As used in this Section 12(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or Agents for use
in confirming sales of the related Notes.
(c) GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) in the case of
termination pursuant to Section 12(a), the Agents shall be entitled to any
commission earned in accordance with the third paragraph of Section 3(b) hereof,
(ii) if at the time of termination (A) any Agent shall own any Notes purchased
by it as principal with the intention of reselling them or (B) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(d) hereof, the provisions of Section
10 hereof, the indemnity agreement set forth in Section 8 hereof, and the
provisions of Sections 11, 14 and 15 hereof shall remain in effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Boeing Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1700
Attention: Treasury Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
If to Chase:
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
21
New York, New York 10017
Attention: Medium-Term Note Desk
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to PaineWebber:
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against the Agents in connection
with or arising under this Agreement shall be brought solely in the state or
federal court of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York or Los Angeles County, State of California.
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15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this 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 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
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If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
BOEING CAPITAL CORPORATION
By:
----------------------------------------
Name:
Title:
Confirmed, Agreed and Accepted, as of the date
first above written:
CHASE SECURITIES INC.
By:
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
---------------------------
PAINEWEBBER INCORPORATED
By:
---------------------------
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a maximum commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to 1 year . . . . . . . . . . . . . . . . . . . . .125%
More than 1 year to 18 months . . . . . . . . . . . . . . . . . .150
More than 18 months to 2 years. . . . . . . . . . . . . . . . . .200
More than 2 years to 3 years. . . . . . . . . . . . . . . . . . .250
More than 3 years to 4 years. . . . . . . . . . . . . . . . . . .325
More than 4 years to 5 years. . . . . . . . . . . . . . . . . . .450
More than 5 years to 6 years. . . . . . . . . . . . . . . . . . .500
More than 6 years to 7 years. . . . . . . . . . . . . . . . . . .550
More than 7 years to 10 years . . . . . . . . . . . . . . . . . .600
More than 10 years to 15 years. . . . . . . . . . . . . . . . . .625
More than 15 years to 20 years. . . . . . . . . . . . . . . . . .700
More than 20 years to 30 years. . . . . . . . . . . . . . . . . .750
More than 30 years. . . . . . . . . . . . . . . . . . . . . . . *
----------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
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EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis(es):
If LIBOR,
- LIBOR Reuters Page:
- LIBOR Telerate Page:
Designated LIBOR Currency:
IF CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
- Weekly Average
- Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from _______________
Price to Public: ___%, plus accrued interest, if any, from ______________
Issue Price:
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Settlement Date and Time:
Additional/Other Terms:
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EXHIBIT B
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware;
(2) The Company has corporate power and corporate authority to own or
lease and operate its properties and conduct its business as described in the
Registration Statement as amended or supplemented;
(3) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Company's Report on Form 10-Q for the quarter
ended September 30, 1997 and incorporated by reference in the Registration
Statement and the Prospectus and the shares of issued and outstanding Common
Stock set forth therein have been duly authorized and validly issued and are
fully paid and nonassessable and are owned of record by Boeing Capital Services
Corporation;
(4) The Agreement has been duly authorized, executed and delivered by
the Company;
(5) The Indentures have been duly authorized, executed and delivered
by the Company and (assuming that (a) the Indenture Trustees have all requisite
power and authority to perform their obligations under the Indentures and have
made any necessary filings and received any necessary consents and (b) the
Indentures have been duly authorized, executed and delivered by the Indenture
Trustees) constitute valid and binding agreements of the Company, enforceable in
accordance with their terms, except that the enforceability thereof may be
subject to (a) bankruptcy, insolvency, reorganization, moratorium, or other laws
now or hereafter in effect relating to or affecting creditors' rights generally,
(b) general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), (c) requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law and (d) governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(6) The Notes are in proper form as contemplated by the Indentures
and have been duly authorized by the Board of Directors of the Company or the
Executive Committee of the Board of Directors and, when appropriate action has
been taken by the Company's Pricing Committee, will have been duly and validly
authorized by all necessary corporate action, and, when the terms of the Notes
have been established in accordance with the applicable Indenture and in a
manner which does not violate any applicable law (including without limitation
usury laws) or agreement and the Notes have been executed and authenticated as
specified in the Indentures and delivered against payment of the full
consideration therefor in accordance with the Agreement, will (assuming that (a)
the Indenture Trustees have all requisite power and authority to perform their
obligations under the Indentures and have made any necessary filings and
received any necessary consents, (b) the Indentures have been duly authorized,
executed and delivered by the Indenture Trustees and (c) the Indenture Trustees'
certificate of authentication has been manually executed by an authorized
officer of the Indenture Trustees), be valid and binding obligations of the
Company, enforceable in accordance with their terms, except that such
enforcement may be subject to (a)
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bankruptcy, insolvency, reorganization, moratorium, or other laws now or
hereafter in effect relating to or affecting creditors' rights generally, (b)
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), (c) requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law and (d) governmental authority to limit, delay or prohibit the
making of payments outside the United States; and the holders of the Notes will
be entitled to the benefits of the Indentures.
(7) The Registration Statement has become effective under the 1933
Act and, to the best knowledge of the undersigned, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the SEC;
(8) No consent, approval, authorization, decree or order of any court
or governmental authority or agency is required in connection with the sale of
the Notes, except such as may be required under the 1933 Act or the rules or
regulations promulgated thereunder, the 1939 Act, and state securities or Blue
Sky laws; and, to the best knowledge of the undersigned, the execution and
delivery of the Agreement and the Indentures and the consummation of the
transactions contemplated by the Agreement and the Indentures will not conflict
with or constitute a breach of, or default under, or cause the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan agreement, or other instrument known to the undersigned and to which
the Company or any subsidiary is a party or by which it or any subsidiary may be
bound or to which any of the significant property or assets of the Company or
any subsidiary is subject, and which conflict, breach, default or lien
imposition would have a material adverse effect on the financial condition of
the Company and its consolidated subsidiaries considered as a whole, nor will
such actions result in any violation of the provisions of the Restated
Certificate of Incorporation or the Bylaws of the Company or any statute of the
United States of America, of the State of California, or of the General
Corporation Law of the State of Delaware or any order or administrative or court
decree of any court or governmental agency or body having jurisdiction over the
Company known to the undersigned.
(9) To the best knowledge of the undersigned there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Registration Statement, other than those disclosed therein;
(10) To the best knowledge of the undersigned there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and to the best
knowledge of the undersigned no material default by the Company exists in the
due performance or observance of any material obligation, agreement, covenant or
other material condition contained in any contract, indenture, loan agreement,
note or lease so described, referred to, filed or incorporated by reference;
(11) The Company is duly qualified to do business as a foreign
corporation in the State of California and, to the best knowledge of the
undersigned but without verification, is duly qualified to do business as a
foreign corporation and is in good standing in each U.S.
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state in which the failure to so qualify and be in good standing would
materially and adversely affect its financial condition.
(12) The statements in the base Prospectus and in the Prospectus
Supplement under the captions "Descriptions of Notes" and "Description of the
Securities", insofar as they purport to summarize certain provisions of
documents specifically referred to therein, are accurate summaries of all
material aspects of such provisions;
(13) To the best knowledge of the undersigned after reasonable
inquiry, the Registration Statement and the Prospectus (other than the financial
statements, schedules and other financial and statistical data included therein,
as to which the undersigned renders no opinion) comply in all material respects
with the requirements of the 1933 Act.
(14) To the best knowledge of the undersigned, MDFC Loan Corporation
and MDFC Equipment Leasing Corporation, Delaware corporations and wholly owned
subsidiaries of the Company, are duly qualified as foreign corporations to do
business and are in good standing in each U.S. state in which the failure to be
so qualified and be in good standing would cause a material and adverse impact
on the financial condition of the Company and its consolidated subsidiaries
considered as one enterprise. MDFC Loan Corporation and MDFC Equipment Leasing
Corporation have been duly incorporated and are validly existing as corporations
in good standing under the laws of the State of Delaware and each has corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement; as far as an examination of
the relevant registers of shareholders and share certificates reveals, all of
the issued and outstanding capital stock of MDFC Loan Corporation and MDFC
Equipment Leasing Corporation has been validly issued and is fully paid and
non-assessable, and, except as disclosed in the Registration Statement or
Prospectus, all of such capital stock owned by the Company is, to the best
knowledge of the undersigned, owned free and clear of any mortgage, pledge or
lien.
(15) To the best knowledge of the undersigned after reasonable
inquiry, the Company's most recent Report on Form 10-Q and its most recent
Report on Form 10-K (other than the financial statements, schedules and other
financial and statistical data included therein, as to which the undersigned
renders no opinion) comply in all material respects with the requirements of the
1934 Act.
The undersigned has participated in certain conferences with officers and
other representatives of the Company during which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although the undersigned is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and has not made any
independent check or verification thereof, during the course of such
participation (relying as to materiality to a large extent upon the statements
of officers and other representatives of the Company), nothing came to the
attention of the undersigned that caused the undersigned to believe that, as of
the date the Registration Statement became effective or at the date hereof, the
Registration Statement (including the documents incorporated by reference
therein but excluding (a) the financial statements, notes and schedules thereto
included or incorporated by reference therein, (b) other financial and
statistical information included or incorporated by reference therein or (c) the
Forms T-1 filed as exhibits to the Registration Statement, as to all of which
the undersigned has not been requested to express and does not express any
opinion) contained an untrue statement of a material fact or omitted to state a
material fact required to
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be stated therein or necessary to make the statements therein not misleading or
that, as of the date of this opinion or at the date hereof, the Prospectus
(including the documents incorporated by reference therein but excluding (a) the
financial statements, notes and schedules thereto included or incorporated by
reference therein, or (b) other financial or statistical information included or
incorporated by reference therein, as to all of which the undersigned has not
been requested and does not express any opinion) contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
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