EXHIBIT 1.2
U.S. $_____________
First Data Corporation
Medium-Term Notes, Series _
DISTRIBUTION AGREEMENT
_________, 20__
[Names and Addresses of Agents]
Ladies and Gentlemen:
First Data Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") with respect to the issuance and sale by the Company
of its Medium-Term Notes, Series _ (the "Notes") having an aggregate initial
offering price of up to $______________. The Notes are to be issued from time to
time pursuant to an indenture, dated as of March 26, 1993 (as supplemented or
amended from time to time, the "Indenture"), between the Company and ▇▇▇▇▇ Fargo
Bank Minnesota, National Association, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a), as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the Procedures (as defined in Section 2(f)). This Agreement shall only apply
to sales of the Notes and not to sales of any other securities or evidences of
indebtedness of the Company and only on the specific terms set forth herein.
Subject to the terms and conditions of this Agreement and to the
reservation by the Company of the right to sell Notes directly on its own
behalf, and to designate and select additional agents in accordance with Section
2(a), the Company hereby (i) appoints each of the Agents as the agent of the
Company during each Marketing Period (as defined in Section 1(b)) for the
purpose of soliciting and receiving offers to purchase Notes from the Company
and (ii) agrees that whenever the Company determines to sell Notes directly to
an Agent as principal it will enter into a separate agreement (each a "Purchase
Agreement"). Each such Purchase Agreement, whether oral (and confirmed in
writing in accordance with Section 2(e)) or in
writing, shall be, with respect to such information (as applicable) as is
specified in Exhibit C relating to such sale, in accordance with Section 2(e).
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Agent as of the date of this Agreement, as of
the Closing Date (as defined in Section 2(g)) and as of the times referred to in
Sections 6(a) and 6(b) (the Closing Date and each such time being hereinafter
sometimes referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (File No. 333-56748)
with respect to the Notes has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and (ii) been filed with the Commission under
the Securities Act. Such registration statement has been declared
effective by the Commission. If any post-effective amendment to such
registration statement has been filed with the Commission prior to the
Representation Date, the most recent such amendment has been declared
effective by the Commission. Copies of such registration statement and
any amendments thereto have been delivered by the Company to the
Agents. As used in this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; and "Effective Date" means the applicable date of the
Effective Time. As provided in Section 3(a), a prospectus supplement
relating to the Notes, the terms of the offering thereof and the other
matters set forth therein has been filed pursuant to Rule 424 under the
Securities Act. In addition, a preliminary prospectus supplement
reflecting the terms of the Notes, the terms of the offering thereof,
and the other matters set forth therein also may be prepared and filed
pursuant to Rule 424 under the Securities Act. Such prospectus
supplement, in the form filed on or after the date of this Agreement
pursuant to Rule 424, is referred to in this Agreement as the
"Prospectus Supplement", and any such preliminary prospectus supplement
in the form filed after the date of this Agreement pursuant to Rule 424
is referred to as the "Preliminary Prospectus Supplement." Any
prospectus accompanied by a Preliminary Prospectus Supplement is
referred to in this Agreement, collectively with such Preliminary
Prospectus Supplement, as a "Preliminary Prospectus." The registration
statement (File No. 333-56748) referred to in this Section 1(a) and as
further amended at the time of the applicable Representation Date,
including the exhibits thereto (but excluding the Statement of
Qualification and Eligibility (a "Form T-1") filed as an exhibit
thereto) and the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents") and the information, if any, deemed to be a part of the
registration statement pursuant to Rule 430A(b) under the Securities
Act, is called the "Registration Statement;" and the basic prospectus
included in the Registration Statement relating to all offerings of
securities under the Registration Statement, as supplemented by the
Prospectus Supplement and a Pricing Supplement, is called the
"Prospectus", except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement
is first filed pursuant to Rule 424, the term "Prospectus" shall refer
to the basic prospectus as so amended or supplemented and as
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supplemented by the Prospectus Supplement, in either case including the
Incorporated Documents. Any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual or interim report of the Company or other documents filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement. Notwithstanding the foregoing,
any prospectus supplement prepared or filed with respect to an offering
pursuant to the Registration Statement of securities other than the
Notes shall not be deemed to have supplemented the Prospectus. The
Commission has not issued any order suspending the effectiveness of the
Registration Statement, and no stop order has been initiated or, to the
knowledge of the Company, threatened by the Commission.
(b) On the Effective Date, the Registration Statement
conformed in all material respects to the requirements of the
Securities Act and the Rules and Regulations, and did 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 not misleading; and on each Representation Date and at all
times during each period during which, in the opinion of counsel for
the Agents, a prospectus relating to the Notes is required to be
delivered under the Securities Act (each a "Marketing Period") and at
the time of filing of the Prospectus pursuant to Rule 424(b), the
Prospectus will conform in all material respects to the requirements of
the Securities Act and the Rules and Regulations, and will not include
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; the
Incorporated Documents, 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 Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and did not include 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; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or
are filed with Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not include 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; and on each Effective Date and
the Closing Date, respectively, the Indenture conformed and will
conform in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
applicable rules and regulations thereunder; PROVIDED that no
representation or warranty is made as to (i) information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Agent specifically for inclusion
therein or (ii) that part of the Registration Statement which shall
constitute the Form T-1 under the Trust Indenture Act.
(c) The Company and each of its significant subsidiaries (as
defined in Rule 405 of the Rules and Regulations) have been duly
incorporated and are validly
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existing as corporations in good standing under the general
corporation laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification and in which the failure to
be so incorporated, existing or qualified would reasonably be
expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, and
have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged. The "significant subsidiaries" of the Company are those
identified in Annex 1(c) (or in Annex 1(c) to any applicable
Officers' Certificate delivered pursuant to Section 6(b)).
(d) All of the issued and outstanding shares of capital stock
of each significant subsidiary of the Company have been duly and
validly authorized and issued and are fully paid, non-assessable and
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) The execution, delivery and performance of this Agreement
and each applicable Purchase Agreement, if any, by the Company and the
consummation of the transactions contemplated hereby and thereby and
compliance by the Company with the provisions of the Indenture and the
Notes will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its significant subsidiaries
is a party or by which the Company or any of its significant
subsidiaries is bound or to which any of the property or assets of the
Company or any of its significant subsidiaries is subject, nor will
such actions result in any violation of the provisions of the charter
or by-laws of the Company or any of its significant subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
significant subsidiaries or any of their properties or assets; and
except for the registration of the Notes under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Trust Indenture Act or the
Exchange Act, and applicable state or foreign securities laws in
connection with the offer and sale of the Notes, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement and each applicable Purchase
Agreement, if any, by the Company and the consummation of the
transactions contemplated hereby and thereby or compliance by the
Company with the provisions of the Indenture.
(f) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement, or, except as described in the Prospectus or in Annex 1(f)
to this Agreement (or in Annex 1(f) to any applicable Officers'
Certificate delivered pursuant to Section 6(b)), to require the Company
to file any other registration statement under the Securities Act
(other than a registration statement on Form S-8) with
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respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(g) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee under the Indenture) constitutes
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law; the
Notes have been duly authorized by the Company and, when the terms of
the Notes and of their issuance and sale have been duly established in
accordance with the Indenture, this Agreement and the applicable
Purchase Agreement, if any, and the Notes have been duly executed,
authenticated, issued and delivered in the manner provided in the
Indenture and paid for in accordance with this Agreement and the
applicable Purchase Agreement, if any, the Notes will be duly and
validly issued and delivered by the Company, and will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms , except as enforceability may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law; and entitled
to the benefits of the Indenture; and the Notes, the Indenture and the
capital stock of the Company will conform in all material respects to
the descriptions thereof contained in the Registration Statement and
the Prospectus.
(h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus there has not
been any material change in the capital stock or long-term debt of the
Company or any of its significant subsidiaries (otherwise than as set
forth or contemplated in the Prospectus) or any material adverse change
in or affecting, or any adverse development which materially affects,
the business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present and will present, as of the applicable
Representation Date, fairly in all material respects the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein.
(j) Ernst & Young LLP, or such other independent accountants
acceptable to the Agents, who have certified certain financial
statements of the Company and whose report appears or is incorporated
by reference in the Prospectus, are independent public
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accountants as required by the Securities Act and the Rules and
Regulations during the periods covered by the financial statements
on which they reported contained in the Prospectus.
(k) The Company has no reason to believe that the Company and
each of its significant subsidiaries do not own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service ▇▇▇▇
registrations, copyrights and licenses necessary for the conduct of
their respective businesses in the manner described in the Prospectus
and have no reason to believe that the conduct of their respective
businesses will violate any such rights of others, and have not
received any notice of any claims of violation of any such rights of
others, which claims are reasonably expected to have a material adverse
effect on the business, properties, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole.
(l) Except as described in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
significant subsidiaries is a party or of which any property of the
Company or any of its significant subsidiaries is the subject which are
reasonably expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and to
the actual knowledge of the Company, no such proceedings are threatened
by governmental authorities or by others.
(m) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed (or incorporated by reference) as exhibits to the Registration
Statement.
(n) Except as described in the Prospectus and in Annex 1(o) to
this Agreement (or in Annex 1(o) to any applicable Officers'
Certificate delivered pursuant to Section 6(b)), since the date as of
which information is given in the Prospectus, the Company has not (i)
granted or issued any rights to acquire any securities (other than
pursuant to employee benefit plans or other compensation plans existing
on the date of this Agreement) or (ii) declared or paid any dividend on
its capital stock other than regular quarterly cash dividends.
(o) Neither the Company nor any of its subsidiaries,
respectively, (i) is in violation of its charter or by-laws, (ii) is in
default, and no event has occurred which, with notice or lapse of time
or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject or (iii) is in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business except, in the case of
clauses (ii) and (iii), for those defaults, violations or failures
which, either
6
individually or in the aggregate, are not reasonably expected to
have a material adverse effect on the business, properties,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole.
(p) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under the
United States Investment Company Act of 1940.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) APPOINTMENT. Subject to the terms and conditions of this
Agreement, the Company hereby appoints each of the Agents as one of the
agents of the Company for the purpose of soliciting or receiving offers
to purchase the Notes from the Company by others. On the basis of the
representations and warranties in this Agreement, but subject to the
terms and conditions of this Agreement, each Agent agrees, as one of
the agents of the Company, to use its reasonable best efforts to
solicit offers to purchase the Notes upon the terms and conditions set
forth in the Prospectus. In connection therewith, each Agent will use
the Prospectus in the form most recently furnished to such Agent by the
Company, and will solicit offers to purchase the Notes in accordance
with the Securities Act, the Rules and Regulations and the applicable
securities laws or regulations of any other applicable jurisdiction in
which such Agent solicits offers to purchase any Note.
The Company expressly reserves the right to offer and sell
Notes directly to investors or through agents other than the Agents
and, in either case, the Agents shall not receive any commission with
respect to such offer and sale. Each Agent, or any such other agent
acting as principal, also may purchase Notes from the Company as
principal for purposes of resale, as more fully described in paragraph
(e) of this Section.
(b) SUSPENSION OF SOLICITATION. The Company reserves the
right, in its sole discretion, to suspend solicitation of offers to
purchase the Notes commencing at any time for any period of time or
indefinitely. Upon receipt of at least one business day's prior written
notice from the Company, the Agents shall suspend solicitation of
offers to purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
For the purpose of this Agreement, "business day" shall mean any day
which is not a Saturday or Sunday and which is not a day on which The
New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Sections
3(a) and 3(j), each Agent shall suspend its solicitation of offers to purchase
Notes until such time as the Company shall have furnished such Agent with an
amendment or supplement to the Registration Statement, the Previous Registration
Statement or the Prospectus, as the case may be, contemplated by Sections 3(a)
and 3(j) and shall have advised such Agent that such solicitation may be
resumed.
(c) AGENT'S COMMISSION. Promptly upon the closing of the sale
of any Notes sold by the Company as a result of a solicitation made by
or offer to purchase received by an Agent, the Company agrees to pay
such Agent a commission, in accordance with the
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schedule set forth in Exhibit A.
(d) SOLICITATION OF OFFERS. The Agents are authorized to
solicit offers to purchase the Notes only in such denominations as are
specified in the Prospectus at a purchase price as shall be specified
by the Company. Each Agent shall communicate to the Company promptly,
orally or in writing, each reasonable offer to purchase Notes received
by it as an Agent. The Company shall have the sole right to accept
offers to purchase the Notes and may reject any such offer in whole or
in part. Each Agent shall have the right, in its discretion reasonably
exercised without advising the Company, to reject any offer to purchase
the Notes received by it, in whole or in part, and any such rejection
shall not be deemed a breach of such Agent's agreement contained
herein.
In connection with the solicitation of offers to purchase
Notes, the Agents are not authorized to provide to any person any
written information relating to the Company other than the Prospectus
and the Incorporated Documents. No Note which the Company has agreed to
sell pursuant to this Agreement shall be deemed to have been purchased
and paid for, or sold by the Company, until such Note shall have been
delivered against payment therefor.
(e) PURCHASES AS PRINCIPAL. Each sale of Notes to any Agent as
principal shall be made in accordance with the terms of this Agreement
and a Purchase Agreement whether oral (and confirmed in writing by such
Agent and the Company which may be by facsimile transmission) or in
writing, which will provide for the sale of such Notes to, and the
purchase thereof by, such Agent. A Purchase Agreement also may specify
certain provisions relating to the reoffering of such Notes by such
Agent. The commitment of any Agent to purchase Notes from the Company
as principal shall be deemed to have been made on the basis of the
representations and warranties of the Company contained in this
Agreement and shall be subject to the terms and conditions of this
Agreement. Each Purchase Agreement shall specify the principal amount
and terms of the Notes to be purchased by an Agent, the time and date
(each such time and date being referred to herein as a "Time of
Delivery") and place of delivery of and payment for such Notes and such
other information (as applicable) as is set forth in Exhibit C. The
Company agrees that if any Agent purchases Notes as principal, such
Agent shall receive such compensation, in the form of a discount or
otherwise, as shall be indicated in the applicable Purchase Agreement
or, if no compensation is indicated therein, a commission in accordance
with Exhibit A. Any Agent may utilize a selling or dealer group in
connection with the resale of such Notes. In addition, the Agents may
offer the Notes they have purchased as principal to other dealers. Any
Agent may sell Notes to any dealer at a discount. Such Purchase
Agreement also shall specify any requirements for delivery of opinions
of counsel, accountants' letters and officers' certificates pursuant to
Section 5.
(f) ADMINISTRATIVE PROCEDURES. Administrative procedures
respecting the sale of Notes (the "Procedures") are set forth in
Exhibit B and may be amended in writing from time to time by the Agents
and the Company. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed
by each of them in this Agreement and in the Procedures. The Procedures
shall apply to all
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transactions contemplated hereunder including sales of Notes to any
Agent as principal pursuant to a Purchase Agreement, unless
otherwise set forth in such Purchase Agreement.
(g) DELIVERY OF DOCUMENTS. The documents required to be
delivered by Section 5 shall be delivered at the offices of Sidley &
Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, not later
than 10:00 A.M., Chicago time, on the date of this Agreement or at such
later time as may be mutually agreed upon by the Company and the
Agents, which in no event shall be later than the time at which the
Agents commence solicitation of offers to purchase Notes hereunder (the
"Closing Date").
3. COVENANTS OF THE COMPANY. The Company agrees:
(a) To prepare a Prospectus that complies with the Securities
Act and the Rules and Regulations and to file such Prospectus,
including the Prospectus Supplement, pursuant to Rule 424(b) within the
time period prescribed by the Rules and Regulations; to notify the
Agents, promptly after it receives notice, of the time when the
Registration Statement or any amendment thereto becomes effective or
promptly after the filing of any supplement or amendment to the
Prospectus (other than any Incorporated Document or any amendment or
supplement relating to an offering of securities other than the Notes
or a Pricing Supplement) and to furnish the Agents with copies thereof;
to notify the Agents, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
of the suspension of the qualification of the Notes for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; to notify the Agents promptly
of any downgrading in the rating accorded the Notes or any other debt
securities of the Company, or any proposal to downgrade the rating of
the Notes or any other debt securities of the Company, by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, or any public announcement that any such
organization has under surveillance or review, with possible negative
implications, its rating of the Notes or any of the Company's debt
securities promptly after the Company learns of such downgrading,
proposal to downgrade or public announcement; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its reasonable best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Agents and to counsel
for the Agents a copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the
Commission, including all exhibits filed therewith;
(c) To furnish promptly to each of the Agents copies of the
Registration Statement, including all exhibits, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
are reasonably requested;
9
(d) To file promptly with the Commission during any Marketing
Period any amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may be required by the Securities
Act, in the reasonable judgment of the Company or the Agents, or
requested by the Commission;
(e) Prior to filing with the Commission during any Marketing
Period (i) any amendment to the Registration Statement or supplement to
the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules
and Regulations (other than any Incorporated Document or any amendment
or supplement relating to an offering of securities other than the
Notes), and promptly after filing with the Commission any Incorporated
Document or any amendment to any Incorporated Document, to furnish a
copy thereof to the Agents and counsel for the Agents;
(f) As soon as practicable, but no later than 16 months after
the date of each acceptance by the Company of an offer to purchase
Notes, to make generally available to its security holders and to the
Agents an earning statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158) covering a period
of at least 12 months beginning on the first day of the first fiscal
quarter of the Company commencing after the later of (i) the effective
date of the Registration Statement, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement, to
become effective prior to the date of such acceptance and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed with
the Commission prior to the date of such acceptance;
(g) For a period expiring on the earlier of (i) five years
after the applicable Representation Date and (ii) the last date on
which any Note sold pursuant to this Agreement is outstanding, to
furnish to the Agents copies of all materials furnished by the Company
to its stockholders and all public reports and financial statements
furnished by the Company to the principal national securities exchange
upon which the common stock of the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time, to take such action as the
Agents reasonably may request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Agents may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes; PROVIDED, HOWEVER,
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject;
(i) Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, not to offer for sale, sell
or cause to be offered for sale or sold, without the prior written
consent of each Agent which is a party to such Purchase Agreement, any
debt securities which are substantially similar to the Notes;
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(j) If, during any Marketing Period, any event occurs as a
result of which the Prospectus would include 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, or if it is necessary at any time
to amend or supplement any Prospectus to comply with the Securities
Act, to notify the Agents promptly, in writing, to suspend solicitation
of purchases of the Notes; and if the Company shall decide to amend or
supplement the Registration Statement or any Prospectus, to advise the
Agents promptly by telephone (with confirmation in writing) and to
prepare and file with the Commission promptly an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance; PROVIDED, HOWEVER, that if
during the period referred to above any Agent shall own any Notes which
it has purchased from the Company as principal with the intention of
reselling them and the Agent has held such Notes for fewer than 180
days or the Company has accepted an offer to purchase any Notes but the
related settlement has not occurred, the Company shall promptly prepare
and timely file with the Commission any amendment or supplement to the
Registration Statement or any Prospectus that may be required by the
Securities Act, in the reasonable judgment of the Company or the
Agents, or requested by the Commission; and
(k) To prepare, with respect to any Notes to be sold through
or to the Agents pursuant to this Agreement, a Pricing Supplement with
respect to such Notes and to file such Pricing Supplement pursuant to
Rule 424 under the Securities Act with the Commission, in each case
within the applicable time period prescribed for such filing by the
Rules and Regulations.
4. EXPENSES. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Notes and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any Incorporated Documents, all as provided in this Agreement;
(d) the costs of reproducing and distributing this Agreement and any Purchase
Agreement; (e) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of sale of the
Notes, if necessary; (f) any applicable stock exchange listing or other fees;
(g) the fees and expenses of filings, if any, with foreign securities
administrators and of qualifying the Notes under the securities laws of the
several jurisdictions as provided in Section 3(h) and of preparing, reproducing
and distributing a Blue Sky Memorandum (including related fees (in an amount not
to exceed $10,000) and disbursements of counsel to the Agents or the Company);
(h) the fees paid to rating agencies in connection with the rating of the Notes;
(i) the costs of printing and issuance of certificates, if any; (j) reasonable
fees and disbursements of the Trustee and any transfer agent, any paying agent,
any calculation agent, any exchange rate agent and any other agents appointed by
the Company, and their respective counsel; (k) the reasonable fees and
disbursements of counsel to the Company and counsel to the Agents; (l) all
advertising expenses in connection with the offering of the Notes incurred with
the consent of the Company; and (m) all other reasonable costs and expenses
arising out of the transactions contemplated hereunder
11
and incident to the performance of the obligations of the Company under this
Agreement or otherwise in connection with the activities of the Agents under
this Agreement.
5. CONDITIONS OF THE AGENTS' OBLIGATIONS. The obligation of
the Agents, as the agents of the Company, under this Agreement to solicit offers
to purchase the Notes, the obligation of any person who has agreed to purchase
Notes to make payment for and take delivery of the Notes, and the obligation of
any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject
to the accuracy, on each Representation Date, of the representations and
warranties of the Company contained in this Agreement, to the accuracy of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions of this Agreement, to the performance by the Company of its
obligations under this Agreement and to each of the following additional terms
and conditions:
(a) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to the Notes shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period prescribed for such filing by the
Rules and Regulations and in accordance with Section 3(a) and 3(k); no
stop order suspending the effectiveness of the Registration Statement
or any part thereof nor any order directed to any document incorporated
by reference in any Prospectus shall have been issued and no proceeding
for that purpose shall have been initiated or, to the knowledge of the
Company or the Agents, threatened by the Commission; and any additional
information required by the Commission to be included in the
Registration Statement or any Prospectus or otherwise shall have been
so included. No order suspending the sale of the Notes in any
jurisdiction designated by the Agents pursuant to Section 3(h) hereof
shall have been issued, and no proceeding for that purpose shall have
been initiated or, to the knowledge of the Company or the Agents,
threatened.
(b) No Agent shall have discovered and disclosed to the
Company on or prior to the Representation Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of the
counsel for the Agents, is material or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters
necessary for the authorization and validity of this Agreement, any
Purchase Agreement, the Indenture, the Notes, the Registration
Statement and the Prospectus, and all other legal matters relating to
this Agreement any Purchase Agreement and the transactions contemplated
hereby and thereby shall be reasonably satisfactory in all material
respects to counsel for the Agents, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel
to the Company satisfactory to the Agents, shall have furnished to the
Agents their written opinion, as counsel to the Company, addressed to
the Agents and dated the Closing Date, in form and substance acceptable
to the Agents to the effect that:
12
(i) The Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the
Trust Indenture Act, and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the
Company, and, when the terms of a Note and of its issuance and
sale have been duly established in accordance with the
Indenture, this Agreement and the applicable Purchase
Agreement, if any, and when such Note has been duly executed,
authenticated, issued and delivered in the manner provided in
the Indenture and paid for in accordance with this Agreement
and the applicable Purchase Agreement, if any, such Note will
be duly and validly issued and delivered by the Company and
will constitute a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with
its terms and entitled to the benefits of the Indenture;
(iii) The Registration Statement was declared
effective under the Securities Act as of the date specified in
such opinion; any required filing of the Prospectus pursuant
to Rule 424(b) of the Rules and Regulations has been made
within the time period prescribed by the Rules and
Regulations; and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(iv) At the Effective Time, the Registration
Statement (including all documents incorporated by reference
therein) complied, and on the date of this Agreement, the
Prospectus (including all documents incorporated by reference
therein) complies, and any further amendments or supplements
thereto made by the Company on or prior to the date of such
opinion comply (other than, in each case, the financial
statements and related schedules and other financial and
statistical data included or incorporated by reference therein
and the Form T-1 under the Trust Indenture Act, as to which
such counsel need express no opinion) as to form in all
material respects with the requirements of the Securities Act,
the Exchange Act and the applicable rules and regulations
under said Acts;
(v) The Notes, the Indenture and the capital stock of
the Company conform in all material respects to the
descriptions thereof contained or incorporated by reference in
the Registration Statement and the Prospectus;
(vi) To such counsel's knowledge, there are no
contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been so filed;
(vii) This Agreement and each Purchase Agreement, if
any, have been duly authorized by the Company, and this
Agreement and each Purchase
13
Agreement, if any, executed and delivered prior to or at
the time of delivery of such opinion have been duly
executed and delivered by the Company;
(viii) The sale of the Notes by the Company,
compliance by the Company with all of the provisions of this
Agreement, each Purchase Agreement, if any, executed and
delivered prior to or at the time of delivery of such opinion,
the Indenture and the Notes and the consummation by the
Company of the transactions contemplated hereby and thereby
will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any agreement
or instrument scheduled in such opinion (as in effect on the
date of such opinion); and, except for the registration of the
Notes under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Trust Indenture Act, the Exchange Act and
applicable state or foreign securities laws in connection with
the offer and sale of the Notes, no consent, approval,
authorization or order of, or filing or registration with, any
court or any governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
applicable Purchase Agreement, if any, by the Company and the
consummation by the Company of the transactions contemplated
hereby; and
(ix) The Company is not required to be registered,
and is not regulated, as an "investment company," as such term
is defined under the United States Investment Company Act of
1940.
In addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Prospectus, such counsel has
considered the information set forth therein in light of the matters required to
be set forth therein and that such counsel has participated in conferences with
officers and representatives of the Company, including its independent public
accountants and, with respect to the Prospectus, representatives of and counsel
for the Agents, during the course of which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel shall not have independently checked the accuracy or completeness
of, or otherwise verified, and accordingly are not passing upon, and shall not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration Statement
and the Prospectus (except as set forth in subparagraph (v) above), and that
such counsel has relied as to materiality, to a large extent, upon the judgment
of officers and representatives of the Company, as a result of such
consideration and participation, nothing has come to the attention of such
counsel which causes such counsel to believe that the Registration Statement as
of its Effective Time or, if later, as of the date of the Company's most recent
filing of an Annual Report on Form 10-K (including such Annual Report on Form
10-K), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of such opinion,
includes an untrue statement of a material fact 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 (except that, in each
case, such counsel need not express any belief as to the financial statements
and related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
14
In rendering such opinion, such counsel may (A) state that their
opinion is limited to the federal laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of Delaware, (B)
rely as to matters of fact upon the representations contained in this Agreement
and the certificates of officers of the Company and it subsidiaries and of
public officials; PROVIDED that such counsel shall furnish copies thereof to the
Agents and state that they believe that the Agents and they are justified in
relying upon such certificates and (C) state that their opinions set forth in
subparagraphs (A) and (B) above are subject to the qualification that the
enforceability of the Company's obligations under the Indenture and the Notes
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) or by an implied covenant of good faith and fair dealing.
(e) The General Counsel or other counsel of the Company shall
have furnished to the Agents his written opinion, addressed to the
Agents and dated the Closing Date, in form and substance satisfactory
to the Agents to the effect that:
(i) The Company and each of its significant
subsidiaries (as defined in Rule 405 under the Securities Act
and listed in Annex 1(c)) have been duly incorporated and are
validly existing as corporations in good standing under the
general corporation laws of their respective jurisdictions of
incorporation and have all corporate power and authority
necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
(ii) All of the issued and outstanding shares of
capital stock of each significant subsidiary have been duly
and validly authorized and issued and are fully paid,
non-assessable and (except for directors' qualifying shares)
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as
set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which
are reasonably expected to have a material adverse effect on
the business, properties, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to such counsel's
knowledge, no such proceedings are threatened by governmental
authorities or by others;
(iv) The sale of the Notes by the Company and the
compliance by the Company with all of the provisions of this
Agreement, each Purchase Agreement, if any, executed and
delivered prior to or at the time of delivery of such opinion
and the Indenture, and the consummation of the transactions
contemplated hereby and thereby will not (A) result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture or loan
agreement known to such counsel or (B) to the knowledge of
such counsel, result in a breach or violation of any of the
terms or provisions of, or constitute a default
15
under, any material, mortgage, deed of trust or other
material agreement or instrument to which the Company or
any of its significant subsidiaries is a party or by which
the Company or any of its significant subsidiaries is bound
or to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or
by-laws of the Company or any significant subsidiary or of
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets (except that such counsel
need express no opinion with respect to applicable state or
foreign securities laws);
(v) To such counsel's knowledge, neither the Company
nor any significant subsidiary (A) is in violation of its
charter or by-laws, (B) is in default, and no event has
occurred, which, with notice or lapse of time or both, would
constitute a default, in the due performance or observance of
any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets
is subject or (C) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain
any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business
except, in the case of clauses (B) and (C), for those
defaults, violations or failures which, either individually or
in the aggregate, are not reasonably expected to have a
material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to include any securities owned or to be owned by such
person in the securities registered pursuant to the
Registration Statement or, except as described in the
Prospectus or listed in Annex 1(f), to require the Company to
file any other registration statement under the Securities Act
(other than a registration statement on Form S-8) with respect
to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in
any securities being registered pursuant to any other
registration statement filed by the Company under the
Securities Act.
In rendering such opinion, such counsel may (i) state that his opinion
is limited to the federal laws of the United States, the laws of the State of
Nebraska and the General Corporation Law of the State of Delaware and (ii) rely
as to matters of fact upon certificates of officers of the Company and its
subsidiaries and of public officials; PROVIDED that such counsel shall furnish
copies thereof to the Agents and state that he believes that the Agents and such
counsel are justified in relying upon such certificates.
(f) The Company shall have furnished to the Agents on the
Closing Date a
16
letter of Ernst & Young LLP, addressed jointly to the Company and
the Agents and dated the Closing Date of the type described in the
American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 72, and covering such additional financial
statement items and procedures (including a review of interim
financial statements specified in the American Institute of
Certified Public Accountants' Statement on Auditing Standards No.
71) as the Agents may reasonably request and in form and substance
satisfactory to the Agents.
(g) The Company shall have furnished to the Agents a
certificate, dated the Closing Date, of its Chief Financial Officer or
Treasurer and its General Counsel or other counsel stating that the
representations and warranties of the Company in Section 1 of this
Agreement which representations and warranties are qualified by
materiality are true and correct as of such date and all other
representations and warranties of the Company in Section 1 of this
Agreement are true and correct in all material respects as of such
date; the Company has performed all of its agreements contained in this
Agreement which are required to be performed on or before the date of
such certificate and the conditions set forth in subsections 5(h) and
(j) of this Agreement have been fulfilled; and no stop order suspending
the effectiveness of the Registration Statement or any part thereof nor
any order directed to any document incorporated by reference in any
Prospectus shall have been issued and no proceeding for that purpose
shall have been initiated or, to the knowledge of such officers,
threatened by the Commission.
(h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, there shall
not have been any material change in the capital stock or long-term
debt of the Company or any of its significant subsidiaries (otherwise
than as set forth or contemplated in the Prospectus or in a supplement
thereto) or any change in or affecting, or any adverse development
which affects, the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case,
is so material and adverse as to make it, in the good faith judgment of
the Agents impraticable or inadvisable to proceed with the solicitation
of offers to purchase Notes or offers and sales of Notes, or with the
purchase of Notes as principal pursuant to an applicable Purchase
Agreement, as the case may be.
(i) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc., the American
Stock Exchange or the over-the-counter market shall have been suspended
or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have
occurred a material adverse change in general economic, political or
financial conditions the result of which, in the case of each of
clauses (i)-(iv), makes it (or, in the case of clause (iv), the effect
of international
17
conditions on the financial markets in the United States shall be
such that), in the good faith judgment of the Agents, impracticable
or inadvisable to proceed with the solicitation of offers to
purchase Notes or offers and sales of Notes, or with the purchase of
Notes as principal pursuant to an applicable Purchase Agreement, as
the case may be.
(j) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Agents.
6. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants
and agrees that:
(a) ACCEPTANCE OF OFFER AFFIRMS REPRESENTATIONS AND
WARRANTIES. Each acceptance by the Company of an offer for the purchase
of Notes shall be deemed to be an affirmation that the representations
and warranties of the Company contained in this Agreement and in any
certificate given to the Agents pursuant hereto are true and correct at
the time of such acceptance, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent of the Notes relating to such
acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented at each such
time).
(b) SUBSEQUENT DELIVERY OF OFFICERS' CERTIFICATES. During each
Marketing Period, each time (i) that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by (A) a
Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or (C)
except as set forth in (ii) and (iii) below, an amendment or supplement
by the filing of an Incorporated Document), (ii) the Company files with
the Commission an Annual Report on Form 10-K, a Quarterly Report on
Form 10-Q or a Current Report on Form 8-K which contains financial
information required to be set forth in or incorporated by reference
into the Prospectus pursuant to Item 11 of Form S-3 under the
Securities Act, (iii) the Agents reasonably request following the
filing by the Company with the Commission of an Incorporated Document
(other than as specified in the preceding clause (ii)) or (iv) the
Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers' certificate
under this Section 6(b) as a condition to the purchase of Notes
pursuant to such Purchase Agreement, the Company shall, promptly
following such amendment or supplement, filing of such Annual Report,
Quarterly Report or Current Report that is incorporated by reference
into the Prospectus or request by the Agents, or concurrently with the
Time of Delivery relating to such sale, furnish to the Agents a
certificate as of the date of such amendment,
18
supplement, filing or Time of Delivery relating to such sale or if
such amendment, supplement or filing was not filed during a
Marketing Period, as of the first day of the next succeeding
Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(g) which was last furnished to
the Agents are true and correct as of the time of delivery of such
certificate pursuant to this Section 6(b), as though made at and as
of such time (except that such statements shall be deemed to relate
to the Registration Statement and each Prospectus as amended and
supplemented to such time), or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in
Section 5(g), 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. During each
Marketing Period, each time (i) that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by (A) a
Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or (C)
except as set forth in (ii) and (iii) below, an amendment or supplement
by the filing of an Incorporated Document), (ii) the Company files with
the Commission an Annual Report on Form 10-K, a Quarterly Report on
Form 10-Q or a Current Report on Form 8-K which contains financial
information required to be set forth in or incorporated by reference
into the Prospectus pursuant to Item 11 of Form S-3 under the
Securities Act, (iii) the Agents reasonably request following the
filing by the Company with the Commission of an Incorporated Document
(other than as specified in the preceding clause (ii)) or (iv) the
Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under this
Section 6(c) as a condition to the purchase of Notes pursuant to such
Purchase Agreement, the Company shall, promptly following such
amendment or supplement, filing of such Annual Report, Quarterly Report
or Current Report that is incorporated by reference into the Prospectus
or request by the Agents, or concurrently with the Time of Delivery
relating to such sale, or if such amendment, supplement or filing was
not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, furnish the Agents and their counsel with
the written opinions of counsel to the Company specified in Sections
5(d) and 5(e), each addressed to the Agents and dated the date of
delivery of such opinion, in form satisfactory to the Agents, to the
same effect as the opinions referred to in Sections 5(d) and 5(e)
hereof, but modified, as necessary, to relate to the Registration
Statement and each Prospectus as amended or supplemented to the time of
delivery of such opinion; PROVIDED, HOWEVER, that in lieu of such
opinion, counsel may furnish the Agents with letters to the effect that
the Agents may rely on prior opinions to the same extent as though they
were dated the date of such letters authorizing reliance (except that
statements in such prior opinions shall be deemed to relate to the
Registration Statement and each Prospectus as amended or supplemented
to the time of delivery of such letters authorizing reliance).
(d) SUBSEQUENT DELIVERY OF ACCOUNTANT'S LETTERS. During each
Marketing Period, each time (i) that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional
financial information (other than by (A) a Pricing Supplement, (B) an
amendment or supplement which relates exclusively to an offering of
19
securities other than the Notes or (C) except as set forth in (ii) and
(iii) below, an amendment or supplement by the filing of an
Incorporated Document), (ii) the Company files with the Commission an
Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a
Current Report on Form 8-K which contains financial information
required to be set forth in or incorporated by reference into the
Prospectus pursuant to Item 11 of Form S-3 under the Securities Act,
(iii) the Agents reasonably request, following the filing by the
Company with the Commission of an Incorporated Document (other than as
specified in the preceding clause (ii)) or (iv) the Company sells Notes
to an Agent as principal and the applicable Purchase Agreement
specifies the delivery of letters under this Section 6(d) as a
condition to the purchase of Notes pursuant to such Purchase Agreement,
the Company shall cause Ernst & Young LLP (or other independent
accountants of the Company acceptable to the Agents) to furnish the
Agents, promptly following such amendment or supplement, filing of such
Annual Report, Quarterly Report or Current Report that is incorporated
by reference into the Prospectus or request by the Agents, or
concurrently with the Time of Delivery relating to such sale, or if
such amendment, supplement, or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period, a
letter, addressed as provided in Section 5(f) and dated the date of
delivery of such letter, in form and substance reasonably satisfactory
to the Agents, to the same effect as the letter referred to in Section
5(f) but modified to relate to the Registration Statement and each
Prospectus, as amended and supplemented to the date of such letter
delivered pursuant to this Section 6(d), 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 or other
relevant corporation.
(e) OPINION ON SETTLEMENT DATE. On any settlement date for the
sale of Notes to any Agent pursuant to a Purchase Agreement, the
Company shall, if requested by such Agent no later than the date such
Purchase Agreement is entered into, furnish such Agent with written
opinions of the counsel to the Company set forth in Sections 5(d) and
5(e), each dated such settlement date, in form satisfactory to such
Agent, to the effect set forth in Sections 5(d) and 5(e), but modified,
as necessary, to relate to the Prospectus relating to the Notes to be
delivered on such settlement date; provided, however, that in lieu of
such opinion, such counsel may furnish such Agent with a letter to the
effect that such Agent may rely on such prior opinion to the same
extent as though it was dated such settlement date (except that
statements in such prior opinion shall be deemed to relate to the
Registration Statement and such Prospectus as amended or supplemented
to the time of delivery of such letter authorizing reliance).
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Agent
and each person, if any, who controls any Agent within the meaning of
the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to the purchases or sales of Notes), to which that
Agent or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon (i) an untrue statement or
20
alleged untrue statement of a material fact contained in the
Registration Statement or in 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
(ii) an untrue statement of a material fact included in any Preliminary
Prospectus or the Prospectus or in 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, and shall
reimburse each Agent and each such controlling person for any legal or
other expenses reasonably incurred by that Agent or controlling person
in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by or
on behalf of any Agent specifically for inclusion therein, or made in
any Statement of Eligibility on Form T-1 filed as an exhibit to the
Registration Statement; and PROVIDED FURTHER, that as to any
Preliminary Prospectus or supplement thereto this indemnity agreement
shall not inure to the benefit of any Agent or any person controlling
that Agent on account of any loss, claim, damage, liability or action
arising from the sale of Notes to any person by that Agent if that
Agent failed to send or give a copy of the Prospectus, as the same may
be amended or supplemented, to that person within the time required by
the Securities Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus or supplement thereto was
corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 3(c). For purposes of the
second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Agent shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
Preliminary Prospectus or supplement thereto or the Prospectus to any
person other than a person to whom such Agent has delivered such
incorporated documents in response to a written request therefor. The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Agent or to any controlling person of
that Agent.
(b) Each Agent, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors (including any person
who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company), each of its officers who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or
action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or in any amendment thereto or the omission or
alleged omission therefrom of a material fact required to be stated
therein or
21
necessary to make the statements therein not misleading or (ii) an
untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus or the Prospectus or in 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, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of that
Agent specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability or action which the Agent may otherwise have to the
Company or to any controlling person of the Company.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 7, the indemnified party shall notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such
claim or action shall be brought against an indemnified party, and the
indemnified party shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Agents shall have the right
to employ counsel to represent jointly the Agents and their respective
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Agents against
the Company under this Section 7, if, in the reasonable judgment of the
Agents, there are legal defenses available to them which are different
from or in addition to those available to such indemnifying party (it
being understood that the Company shall not, in connection with any one
such claim or action or separate but substantially similar or related
claims or actions in the same jurisdiction arising out of the same
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (other than local
counsel which shall be engaged only for purposes of appearing with such
counsel in such jurisdictions in which such firm of attorneys is not
licensed to practice)), and in that event the fees and expenses of such
separate counsel shall be paid by the Company. Anything in this Section
7(c) to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without
its written consent.
22
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 7(a) or 7(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein (other than by reason of the failure to give notice, as
provided in the first sentence of Section 7(c)), then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute
to the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on the
other from the offering of the 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 Agents on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and any Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Notes (before deducting expenses)
received by the Company bear to the total commissions received by such
Agent with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or any
Agent, the intent of the parties and their relative 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 contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Agents were treated as
one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to in
this Section 7(d). The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed
to include, for purposes of this Section 7(d), 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 7(d), no Agent shall be
required to contribute any amount in excess of the amount by which the
total price at which the Notes sold through it and distributed to the
public was offered to the public exceeds the amount of any damages
which such Agent has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Agent's obligation to contribute as provided in
this Section 7(d) is several and not joint.
8. STATUS OF EACH AGENT. In soliciting offers to purchase the
Notes from the Company pursuant to this Agreement (other than in respect of any
Purchase Agreement), each Agent is acting individually and not jointly and is
acting solely as agent for the Company and not as principal. Each Agent will
make reasonable best efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes from the Company has been solicited
by such Agent and accepted by the Company but such Agent shall have no liability
to
23
the Company in the event any such purchase is not consummated for any reason.
If the Company shall default in its obligations to deliver Notes to a purchaser
whose offer the Company has accepted, the Company shall (i) hold the Agents
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii), in particular, pay to the Agents any commission
to which they would be entitled in connection with such sale.
9. TERMINATION. This Agreement may be terminated for any
reason at any time by any party upon the giving of one day's written notice of
such termination to the other parties hereto; provided, however, if such
terminating party is an Agent, such termination shall be effective only with
respect to such terminating party. If, at the time of a termination, an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser has not occurred, the provisions of this Agreement
shall remain in effect until such Notes are delivered. The agreements contained
in Sections 2(c), 3(f), 3(g), 4, 7 and 8 and the representations and warranties
of the Company in Section 1 shall survive the delivery of any Notes and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
10. NOTICES. Except as otherwise provided herein, all notices
and other communications provided pursuant to the terms of this Agreement shall
be in writing and shall be deemed duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Agents shall be directed to
them as follows: _____________________ notices to the Company shall be directed
to it as follows: First Data Corporation, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to First Data Corporation, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Telephone No.: (402)
▇▇▇-▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Agents and the Company and
their respective successors. This Agreement is for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement also shall be deemed to be
for the benefit of the person or persons, if any, who control any Agent within
the meaning of Section 15 of the Securities Act and (B) the indemnity agreement
of the Agents contained in Section 7(b) of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained in this
Agreement. No purchaser of Notes shall be deemed to be a successor solely by
reason of such purchase.
12. GOVERNING LAW. This Agreement and any Purchase Agreement
shall be governed by and construed in accordance with the laws of New York
(without giving effect to the principles of choice of law).
24
13. COUNTERPARTS. This Agreement and any Purchase Agreement
may be executed in counterparts and each such counterpart shall be deemed to be
an original but all such counterparts shall together constitute one and the same
instrument.
14. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth our agreement, please indicate
your acceptance of this Agreement in the space provided for that purpose below.
Very truly yours,
FIRST DATA CORPORATION
By:
Title:
Name:
By:
Title:
Name:
CONFIRMED AND ACCEPTED,
as of the date first above written:
26
ANNEX 1(c)
27
ANNEX 1(f)
RIGHTS TO DEMAND REGISTRATION OF SECURITIES
28
ANNEX 1(o)
RIGHTS TO ACQUIRE SECURITIES OR SPECIAL DIVIDENDS
29
EXHIBIT A
First Data Corporation
Medium-Term Notes, Series _
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. dollar equivalent of the principal
amount of Notes:
--------------------------------------------- -----------------------------
TERM COMMISSION RATE
--------------------------------------------- -----------------------------
9 months to less than 12 months 0.125%
--------------------------------------------- -----------------------------
12 months to less than 18 months 0.150%
--------------------------------------------- -----------------------------
18 months to less than 2 years 0.200%
--------------------------------------------- -----------------------------
2 years to less than 3 years 0.250%
--------------------------------------------- -----------------------------
3 years to less than 4 years 0.350%
--------------------------------------------- -----------------------------
4 years to less than 5 years 0.450%
--------------------------------------------- -----------------------------
5 years to less than 6 years 0.500%
--------------------------------------------- -----------------------------
6 years to less than 7 years 0.550%
--------------------------------------------- -----------------------------
7 years to less than 10 years 0.600%
--------------------------------------------- -----------------------------
10 years to less than 15 years 0.625%
--------------------------------------------- -----------------------------
15 years to less than 20 years 0.650%
--------------------------------------------- -----------------------------
20 years to 30 years 0.750%
--------------------------------------------- -----------------------------
30