Exhibit 1-c
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
$[ ],000,000,000
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
June 2, 1997
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
Two World Trade Center
65th Floor
New York, New York 10048
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co., a Delaware
corporation (the "Company"), confirms its agreement with you with respect to
the issue and sale from time to time by the Company of up to $[ ],000,000,000
(or the equivalent thereof in one or more foreign currencies or composite
currencies) aggregate initial public offering price of its Global Medium-Term
Notes, Series C, due more than 9 months from the date of issue (the "Notes")
and its Global Units, Series C (the "Units" and together with the Notes, the
"Program Securities"), in each case subject to reduction as a result of the
sale of the Company's (i) Global Medium-Term Notes, Series D and Series E, to
be sold primarily outside of the United States, (ii) Global Units, Series D
and Series E, to be sold primarily outside of the United States, and (iii)
the sale of certain of the Company's other debt securities, warrants,
preferred stock, purchase contracts and units.
The Notes may be issued as senior indebtedness (the "Series C
Senior Notes") or as subordinated indebtedness (the "Series C Subordinated
Notes") of the Company. The Series C Senior Notes will be issued, either
alone or as part of a Unit, pursuant to the provisions of a senior indenture
dated as of April 15, 1989, as supplemented by a first supplemental senior
indenture dated as of May 15, 1991 and a second supplemental senior indenture
dated as of April 15, 1996, each between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc. and The
Chase Manhattan Bank (formerly known as Chemical Bank), as trustee (the
"Senior Debt Trustee"), and a third supplemental senior indenture (the "Third
Supplemental Senior Indenture") dated as of June 1, 1997, between the Company
(as successor to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇) and the Senior Debt Trustee (as so
supplemented and as may be further supplemented or amended from time to time,
the "Senior Debt Indenture"). The Series C Subordinated Notes will be issued
pursuant to the provisions of a subordinated indenture dated as of April 15,
1989, as supplemented by a first supplemental subordinated indenture dated as
of May 15, 1991 and a second supplemental subordinated indenture dated as of
April 15, 1996, each between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and The First National Bank of
Chicago, as trustee (the "Subordinated Debt Trustee"), and a third
supplemental subordinated indenture (the "Third Supplemental Subordinated
Indenture") dated as of June 1, 1997, between the Company (as successor to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇) and the Subordinated Debt Trustee (as so supplemented and as
may be further supplemented or amended from time to time, the "Subordinated
Debt Indenture"). The Senior Debt Indenture and the Subordinated Debt
Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter
referred to individually as a "Trustee" and collectively as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Indenture
referred to therein, and as Warrant Agent under the Warrant Agreement referred
to therein and the holders from time to time of the Units described therein.
Units may include one or more (i) Series C Senior Notes, (ii) warrants
("Universal Warrants") entitling the holders thereof to purchase or sell (a)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or composite currencies or (c) commodities, (iii)
purchase contracts ("Purchase Contracts") requiring the holders thereof to
purchase or sell (a) securities of an entity unaffiliated with the Company, a
basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or composite currencies or (c)
commodities or (iv) any combination thereof. The applicable prospectus
supplement will specify whether Notes, Universal Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from any series of
Units. Universal Warrants issued as part of a Unit will be issued pursuant to
the Universal Warrant Agreement dated as of June 2, 1997 (the "Universal
Warrant Agreement") between the Company and The Chase Manhattan Bank, as
Warrant Agent. Purchase Contracts entered into by the Company and the holders
thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements
to the Basic Prospectus. The Purchase Contracts issued as part of a Unit
will have the closing dates, purchase or sale prices and other terms as set
forth in supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for
the purpose of soliciting and receiving offers to purchase Program
Securities from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms
and conditions herein set forth, you agree to use reasonable efforts to
solicit and receive offers to purchase Program Securities upon terms
acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify. In addition, you may also purchase
Program Securities as principal pursuant to the terms of a terms agreement
relating to such sale (in the case of Notes, a "Notes Terms Agreement" and,
in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Program Securities. Such registration statement,
including the exhibits thereto, as amended at the Commencement Date (as
hereinafter defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Program Securities. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus"
means the Basic Prospectus together with the prospectus supplement or
supplements (each a "Prospectus Supplement") specifically relating to Notes,
as filed with, or transmitted for filing to, the Commission pursuant to Rule
424. As used herein, the terms "Basic Prospectus" and "Prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with you as of the Commencement Date, as of each date
on which you solicit offers to purchase Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including
any purchase by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement), as of each date the Company issues and delivers
Program Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
you furnished to the Company in writing by you expressly for use therein or
(B) to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustees and (2) the
representations and warranties set forth in clauses (iii) and (iv) above,
when made as of the Commencement Date or as of any date on which you
solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall be deemed not to
cover information concerning an offering of particular Program Securities
to the extent such information will be set forth in a supplement to the
Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(e) Each of this Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement (each as hereinafter
defined) has been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the
Universal Warrant Agreement has been duly authorized, executed and
delivered by the Company or by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc. (a predecessor to
the Company) and assumed by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as the enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a Unit,
have been duly authorized and established in conformity with the provisions of
the relevant Indenture and, when the Notes have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes will be
entitled to the benefits of such Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability is considered
at a proceeding in equity or at law.
(h) The forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such
Units, have been duly authorized and established in conformity with the
provisions of (i) in the case of the Units and Purchase Contracts, the Unit
Agreement and (ii) in the case of Universal Warrants, the Universal Warrant
Agreement. When the Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Purchase Contracts included in such Units have
been executed by the Company and countersigned and executed by the Unit Agent
and (B) any Universal Warrants included in such Units have been executed by
the Company and countersigned by the Warrant Agent, the Units (including any
such Purchase Contracts or Universal Warrants contained therein) will be
entitled to the benefits of the Unit Agreement and, in the case of the
Universal Warrants, the Universal Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including
any Purchase Contracts and Universal Warrants included therein) the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Written Notes Terms Agreement or Written Units Terms Agreement
and the performance by the Company of its obligations under this Agreement,
the Notes, the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or Units Terms
Agreement will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, the Notes, the Units, the Indentures, the Unit
Agreement, the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Program Securities; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Program Securities constitutes a "prohibited transaction" under Section 406
of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(m) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(n) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
(o) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to
doing business with the Government of Cuba or with any person or affiliate
located in Cuba.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranties set forth in Section 1(b)(iii) and
1(b)(iv), 1(g) (except as to due authorization of the Notes), 1(h) (except as
to due authorization of the Units, Universal Warrants and Purchase Contracts)
and 1(i), when made as of the Commencement Date, or as of any date on which
you solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or other factors,
shall be deemed not to address the application of the Commodity Exchange Act,
as amended, or the rules, regulations or interpretations of the Commodity
Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not
be required to deliver any certificates, opinions or letters in accordance
with Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for (i)
in the case of Notes, issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise
price, exercise date or period or expiration of an underlying Universal
Warrant or a change in the settlement date or purchase or sale price of an
underlying Purchase Contract or (iii) for a change you deem to be immaterial),
you shall not be required to resume soliciting offers to purchase Program
Securities until the Company has delivered such certificates, opinions and
letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing,
each offer to purchase Program Securities received by you as agent that in
your judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Program Securities and may reject any
offer in whole or in part. You shall have the right to reject any offer to
purchase Program Securities that you consider to be unacceptable, and any such
rejection shall not be deemed a breach of your agreements contained herein.
The procedural details relating to the issue and delivery of Program
Securities sold by you as agent and the payment therefor shall be as set forth
in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to
you as principals shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will enter into a
Notes Terms Agreement or Units Terms Agreement that will provide for the sale
of such Program Securities to and the purchase thereof by you. Each Notes
Terms Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially in
the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of
Notes, a "Written Notes Terms Agreement" and, in the case of Units, a "Written
Units Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each (i) Note Terms Agreement shall specify
the principal amount of Notes to be purchased by you pursuant thereto, the
maturity date of such Notes, the price to be paid to the Company for such
Notes, the interest rate and interest rate formula, if any, applicable to
such Notes and any other terms of such Notes and (ii) Unit Terms Agreement
shall specify (a) the information set forth in (i) above with respect to
any Notes issued as part of a Unit, (b) with respect to Universal Warrants
issued as part of a Unit, the exercise price, the exercise date or period,
the expiration date and any other terms of such Universal Warrants, and (c)
with respect to Purchase Contracts issued as part of a Unit, the settlement
date, the purchase or sale price or any other terms of such Purchase
Contracts. Each such Notes Terms Agreement or Units Terms Agreement may
also specify any requirements for officers' certificates, opinions of
counsel and letters from the independent auditors of the Company pursuant
to Section 4 hereof. A Notes Terms Agreement and a Unit Terms Agreement
may also specify certain provisions relating to the reoffering of such
Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or
a Units Terms Agreement, the procedural details relating to the issue and
delivery of Notes or Units, as the case may be, purchased by you as principal
and the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program Securities to be
purchased by you as principal pursuant to a Notes Terms Agreement or a Units
Terms Agreement, as the case may be, is referred to herein as a "Settlement
Date."
Unless otherwise specified in a Notes Terms Agreement or a
Units Terms Agreement, if you are purchasing Notes or Units, as principal
you may resell such Notes or Units to other dealers. Any such sales may be
at a discount, which shall not exceed the amount set forth in the
Prospectus Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series C and the Global Units,
Series C, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section
4 of this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agent of the Company
shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, your counsel,
not later than 4:00 p.m., New York time, on the date hereof, or at such
other time and/or place as you and the Company may agree upon in writing,
but in no event later than the day prior to the earlier of (i) the date on
which you begin soliciting offers to purchase Program Securities and (ii)
the first date on which the Company accepts any offer by you to purchase
Program Securities as principal. The date of delivery of such documents is
referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement
relating to the Program Securities or any amendment to the Registration
Statement unless the Company has previously furnished to you a copy thereof
for your review and will not file any such proposed supplement or amendment
to which you reasonably object; provided, however, that the foregoing
requirement shall not apply to any of the Company's periodic filings with
the Commission required to be filed pursuant to Section 13(a), 13(c),
13(f), 14 or 15(d) of the Exchange Act, copies of which filings the Company
will cause to be delivered to you promptly after being transmitted for
filing with the Commission. Subject to the foregoing sentence, the Company
will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act. The Company will promptly advise you (i) of the
filing of any amendment or supplement to the Basic Prospectus, (ii) of the
filing and effectiveness of any amendment to the Registration Statement,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Program
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by reference
in the Prospectus, you shall not be obligated to solicit offers to purchase
Program Securities so long as you are not reasonably satisfied with such
document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Company, it is necessary at any time to amend
or supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify you by telephone (with
confirmation in writing) to suspend solicitation of offers to purchase Program
Securities and, if so notified by the Company, you shall forthwith suspend
such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it
shall so advise you promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance
and will supply such amended or supplemented Prospectus to you in such
quantities as you may reasonably request. If any documents, certificates,
opinions and letters furnished to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) in connection with the preparation and filing of
such amendment or supplement are satisfactory in all respects to you, upon the
filing with the Commission of such amendment or supplement to the Prospectus
or upon the effectiveness of an amendment to the Registration Statement, you
will resume the solicitation of offers to purchase Program Securities
hereunder. Notwithstanding any other provision of this Section 3(b), until
the distribution of any Program Securities you may own as principal has been
completed, if any event described above in this paragraph (b) occurs, the
Company will, at its own expense, forthwith prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in all
respects to you, will supply such amended or supplemented Prospectus to you in
such quantities as you may reasonably request and shall furnish to you
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such
documents, certificates, opinions and letters as you may request in connection
with the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Program Securities. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
(d) The Company will furnish to you, without charge, a signed copy
of the Registration Statement, including exhibits and all amendments thereto,
and as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as you may reasonably
request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to maintain such qualifications for as long as
you shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder
as you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program
Securities is consummated, pay all expenses incident to the performance of
its obligations under this Agreement and any Notes Terms Agreement or Units
Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Program Securities, (iii) the fees and disbursements of the Company's
counsel and accountants, of the Trustees and their counsel, the Unit Agent
and its counsel, and the Warrant Agent and its counsel (iv) the
qualification of the Notes and Units (and of any securities comprised
thereby) under securities or Blue Sky laws in accordance with the
provisions of Section 3(f), including filing fees and the fees and
disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda, (v) the
printing and delivery to you 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, (vi) the printing and
delivery to you of copies of the Indentures, the Unit Agreement, the
Universal Warrant Agreement and any Blue Sky or Legal Investment Memoranda,
(vii) any fees charged by rating agencies for the rating of the Program
Securities, (viii) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc., (ix)
the fees and disbursements of your counsel incurred in connection with the
offering and sale of the Program Securities, including any opinions to be
rendered by such counsel hereunder, and (x) any out-of-pocket expenses
incurred by you; provided that any advertising expenses incurred by you
shall have been approved by the Company.
(i) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect
to such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A)
the Notes that are to be sold pursuant to such Notes Terms Agreement, (B)
Notes previously agreed to be sold by the Company and (C) commercial paper
issued in the ordinary course of business) or (ii) in the case of Units, any
securities substantially similar to such Units (other than (A) the Units that
are sold pursuant to such Units Terms Agreement or (B) Units previously agreed
to be sold by the Company), in each case, except as may otherwise be provided
in the applicable Notes Terms Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agents. Your
obligation to solicit offers to purchase Program Securities as agents of
the Company, your obligation to purchase Program Securities as principals
pursuant to any Notes Terms Agreement or Units Terms Agreement and the
obligation of any other purchaser to purchase Program Securities will be
subject to the accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of the Company's
officers made in each certificate furnished pursuant to the provisions
hereof and to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of your obligation to solicit offers to purchase
Program Securities, at the time of such solicitation, and, in the case of
your or any other purchaser's obligation to purchase Program Securities, at
the time the Company accepts the offer to purchase such Program Securities
and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time such
offer to purchase was made, that, in your judgment, is material and adverse
and that makes it, in your judgment, impracticable to market the Program
Securities on the terms and in the manner contemplated by the Prospectus, as
so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) suspension
of trading of any securities of the Company on any exchange or in any
over-the-counter market, (C) declaration of a general moratorium on commercial
banking activities in New York by either Federal or New York State authorities
or (D) any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and, in the case of any of the events described in clauses (ii)(A)
through (D), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Program Securities on the
terms and in the manner contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such offer to
purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii)
above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made or
(B) unless in each case described in (ii) above, the relevant event
shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel to the Company, or of other counsel satisfactory to you and who may be
an officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as amended or
supplemented, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(B) each of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., Greenwood
Trust Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
International Incorporated (each a "Material Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries
has all necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, as amended or supplemented, except to the extent
that the failure to obtain or file would not have a material adverse effect on
the Company and its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the
Trust Indenture Act and each of the Third Supplemental Senior Indenture and
the Third Supplemental Subordinated Indenture, the Unit Agreement and the
Universal Warrant Agreement has been duly authorized, executed and delivered
by the Company and each of the Indentures, is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(F) the forms of Notes, whether issued alone or as part
of a Unit, have been duly authorized and established in conformity with the
provisions of the relevant Indenture and, if the Notes had been executed by
the Company and authenticated by the relevant Trustee or its duly appointed
agent in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof on the date of such
opinion, the Notes would be entitled to the benefits of such Indenture and
would be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(G) the forms of Units, including the forms of
Universal Warrants and Purchase Contracts which, in addition to the Notes,
may comprise such Units, have been duly authorized and established in
conformity with the provisions of (i) in the case of Units and Purchase
Contracts, the Unit Agreement and (ii) in the case of the Universal
Warrants, the Universal Warrant Agreement, and if the Units (including the
Universal Warrants and the Purchase Contracts) had been delivered to and
duly paid for by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the Warrant
Agent and any Purchase Contracts included therein had been executed by the
Company and executed and countersigned by the Unit Agent) on the date of
such opinion, the Units (including the Universal Warrants and Purchase
Contracts contained therein) would be entitled to the benefits of the Unit
Agreement and in the case of the Warrants, the Universal Warrant Agreement,
and would be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at proceedings in equity or at law;
(H) the execution and delivery by the Company of the
Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contract or Universal Warrant included therein), the Indentures, the
Unit Agreement, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its consolidated
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's knowledge,
any judgment, order or decree of any U.S. governmental body, agency or court
having jurisdiction over the Company or any of its consolidated subsidiaries,
and no consent, approval, authorization or order of or qualification with any
U.S. governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Program Securities; provided,
however, that no opinion is expressed on whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended;
(I) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and in the
Basic Prospectus), "Plan of Distribution" (in the Prospectus Supplement and in
the Basic Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus), (2) in
the Registration Statement, as then amended or supplemented, under Item 15,
(3) in "Item 3 - Legal Proceedings" of the most recent annual reports on Form
10-K incorporated by reference in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the quarterly reports on Form 10-Q, if any, filed
since such annual reports and incorporated by reference in the Prospectus, in
each case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(J) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so described or of any
U.S. federal or state statutes, regulations, contracts or other documents
governed by U.S. federal or state law that are required to be described in the
Registration Statement or the Prospectus, as then amended or supplemented, or
to be filed or incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated by reference as
required; and
(K) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus as then amended or supplemented (except as to
financial statements and schedules included therein as to which such counsel
need not express any opinion), complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to believe that
any part of the Registration Statement (except as to financial statements and
schedules as to which such counsel need not express any belief and except for
that part of the Registration Statement that constitutes the Forms T-1
heretofore referred to), as then amended, if applicable, when such part became
effective contained, and the Registration Statement (except as to financial
statements and schedules included therein, as to which such counsel need not
express any belief and except for the part of the Registration Statement that
constitutes the Form T-1) as of the date such opinion is delivered, contains
any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the Registration
Statement and Prospectus, as then amended or supplemented, if applicable
(except for financial statements and schedules included therein as to which
such counsel need not express any opinion), comply as to form in all material
respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (4) has no reason to believe that the
Prospectus, as then amended or supplemented, if applicable (except for
financial statements and schedules as to which such counsel need not
express any belief), as of the date such opinion is delivered contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that in
the case of an opinion delivered on the Commencement Date or pursuant to
Section 5(b), the opinion and belief set forth in clauses (3) and (4) above
shall be deemed not to cover information concerning an offering of
particular Notes or Units to the extent such information will be set forth
in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, your special counsel, covering the matters in subparagraphs (D),
(E), (F), (G) and (I) (with respect to statements in the Prospectus, as then
amended or supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and the
Basic Prospectus), "Plan of Distribution" (in the Prospectus Supplement and in
the Basic Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus)) and
clauses (2), (3) and (4) of subparagraph (K) in paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the
Notes), (G) (except as to due authorization of the Units,
Universal Warrants and Purchase Contracts), (H), (I)(1) and
(K)(3) and (4) of paragraph (b)(i) above, when contained in an
opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of
the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or
interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange
rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or
other factors.
With respect to subparagraph (K) of paragraph (b)(i)
above, if such opinion is given by counsel who is also an
officer of the Company, such counsel may state that his or her
opinion and belief are based upon his or her participation, or
the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents
thereof, but are without independent check or verification,
except as specified. With respect to subparagraph (K) of
paragraph (b)(i) above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ and, if ▇▇▇▇▇ &
Wood LLP is giving such opinion, ▇▇▇▇▇ & ▇▇▇▇ LLP may state that
their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent
check or verification, except as specified.
(iii) The opinion, dated as of such date, of ▇▇▇▇▇ & Wood LLP,
special counsel to the Company, to the effect that the statements set forth
under the caption "United States Federal Taxation" in the Prospectus
Supplement and under the caption "Limitations on Issuance of Bearer Debt
Securities and Bearer Warrants" in the Basic Prospectus, insofar as such
statements relate to statements of law or legal conclusions under the laws of
the United States or matters of United States law, fairly present the
information called for and fairly summarize the matters referred to therein.
The opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP described in paragraph (b)(iii)
above and in paragraph (b)(i) above, if such opinion is given by ▇▇▇▇▇ & Wood
LLP, shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement
Date, you shall have received a certificate, dated the Commencement Date or
such Settlement Date, as the case may be, and signed by an executive
officer of the Company to the effect set forth in subparagraph (a)(iii)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of such date
and that the Company has complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied on or before
such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement
Date, the Company's independent auditors shall have furnished to you a letter
or letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than
by an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be,
in form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
unless you shall reasonably request based on disclosure included or omitted
form such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall
be in a form satisfactory to you and shall be of the same tenor as the
opinions referred to in Section 4(b), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to you, but only
with reference to information relating to you furnished to the Company in
writing by you expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by you, in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b)
above. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein in connection with any offering of Program Securities then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand
from the offering of such Program Securities or (ii) if the allocation
provided by clause (i) 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 you on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other hand in connection with the
offering of such Program Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Program Securities (before deducting expenses) received by the Company bear to
the total discounts and commissions received by you in respect thereof. The
relative fault of the Company on the one hand and of you on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, you shall not be required
to contribute any amount in excess of the amount by which the total price
at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company,
its officers and you set forth in or made pursuant to this Agreement or any
Notes Terms Agreement or Units Terms Agreement will remain in full force and
effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
8. Termination. This Agreement may be terminated at any time
either by the Company or by you upon the giving of written notice of such
termination to the other party hereto, but without prejudice to any rights,
obligations or liabilities of either party hereto accrued or incurred prior to
such termination. The termination of this Agreement shall not require
termination of any Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), the last sentence of
Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 10 and 12 shall survive;
provided that if at the time of termination an offer to purchase Program
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Program Securities has not occurred, the
provisions of Sections 1, 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(g), 3(i), 4
and 5 shall also survive until such delivery has been made
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
telefaxed and confirmed to you at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Manager, Credit Department (telefax number: 212- ), with
a copy [to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Managing Director, Debt Syndicate (telefax number: 212-764-7490)] or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Secretary.
10. Successors. This Agreement and any Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors
and controlling persons referred to in Section 6 and the purchasers of
Notes and Units (to the extent expressly provided in Section 4), and no
other person will have any right or obligation hereunder
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By:____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By:____________________________
Name:
Title:
EXHIBIT A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 19__
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
Discover & Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: U.S. Distribution Agreement dated June 2, 1997
(the "U.S. Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term
Notes, Series C, having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
-----------------------------------------------------------------------------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if Alternate Rate Event
any): Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if Interest Reset Dates:
any):
Initial Accrual Period OID: Reference Dealers: Interest Reset Period:
Total Amount of OID: Face Amount (if any): Maximum Interest Rate:
Original Yield to Maturity: Fixed Amount of each Minimum Interest Rate:
Indexed Currency (if any):
Optional Repayment Aggregate Fixed Amount of Interest Payment Period:
Date(s): each Indexed Currency (if
any):
Optional Redemption Applicability of Issuer's Calculation Agent:
Date(s): Option to Extend Original
Maturity Date:
Initial Redemption Date: If yes, state Final Maturity Reporting Service:
Date:
Initial Redemption Variable Rate Renewable
Percentage: Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Other Provisions: Initial Maturity Date:
Final Maturity Date:
Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6
and 9 through 13 of the U.S. Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 12 of the U.S. Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: ________________.
[▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.]
By:_______________________________
Name:
Title:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED]
By:
------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:
------------------------------------------
Name:
Title:
EXHIBIT A-1
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
_______________, 19 __
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
Discover & Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: U.S. Distribution Agreement dated June 2,1997 (the
"U.S. Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C,
[specified designation] having the following terms:
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit:
---------- ------------------------- --------------------------
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Aggregate Number of
Purchase Contracts:
Severability: Aggregate Number of Purchase Contract Property:
Warrants:
Other Terms: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Currency in which exercise Purchase Price:
payments shall be made:
Exchange Rate (or method Settlement Date:
of calculation:
Form of Settlement: Payment Location:
[Call Price:](1)
[Formula for determining Method of Settlement:
Cash Settlement Value:](2)
[Amount of Warrant Currency of Settlement
Property Salable per Payment:
Warrant:](3)
[Put Price for such Contract Fees, if any:
specified amount of
Warrant Property per
Warrant:]
[Method of delivery of any Corporation Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:](3)
Other Terms: Holders' Acceleration:
Redemption Provisions:
Other Terms:
All Notes Issued as Part of Fixed Rate Notes Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
---------- -------------------------- --------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Index Currency:
Settlement Date and Time: Amortization Schedule: Spread (Plus or Minus):
Place of Delivery: Applicability of Annual Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if Alternate Rate Event
any): Spread:
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if Interest Reset Dates:
any):
Initial Accrual Period OID: Reference Dealers: Interest Reset Period:
Total Amount of OID: Face Amount (if any): Maximum Interest Rate:
Original Yield to Maturity: Fixed Amount of each Minimum Interest Rate:
Indexed Currency (if any):
Optional Repayment Aggregate Fixed Amount of Interest Payment Date(s):
Date(s): each Indexed Currency (if
any):
Optional Redemption Applicability of Issuer's Interest Payment Period:
Date(s): Option to Extend Original
Maturity Date:
Initial Redemption Date: If yes, state Final Maturity Calculation Agent:
Date:
Initial Redemption Reporting Service:
Percentage:
Annual Redemption Variable Rate Renewable
Percentage Reduction: Notes:
Ranking: Redemption Dates:
Series: Redemption Percentage:
Minimum Denominations: Initial Maturity Date:
Other Terms: Final Matural Date:
Applicability of Issuer's
Option to Reset Spread or
Spread Multiplier:
----------------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6
and 9 through 13 of the U.S. Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(h), 6, 9, 10 and 12 of the U.S. Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: ___________.
[▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.]
By:____________________________
Name
Title:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED]
By:
---------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:
------------------------------------------
Name:
Title:
EXHIBIT B
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
GLOBAL UNITS, SERIES C
ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific
terms of the offering of Global Medium-Term Notes, Series C (the "Notes") and
Global Units, Series C (the "Units"), on a continuous basis by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. (the "Company") pursuant to the U.S. Distribution
Agreement, dated June 2, 1997 (the "Distribution Agreement") among the
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, as senior indebtedness (the
"Senior Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of a senior indenture dated as of April
15, 1989 (as supplemented by a first supplemental senior indenture dated as of
May 15, 1991, a second supplemental senior indenture dated as of April 15,
1996, a third supplemental senior indenture dated as of June 1, 1997 and as it
may be further supplemented or amended from time to time, the "Senior Debt
Indenture"), between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank) ("Chase"), as trustee. The Subordinated Notes
will be issued pursuant to the provisions of a subordinated indenture dated
as of April 15, 1989 (as supplemented by a first supplemental subordinated
indenture dated as of May 15, 1991, a second supplemental subordinated
indenture dated as of April 15, 1996, a third supplemental subordinated
indenture dated as of June 1, 1997 and as it may be further supplemented or
amended from time to time, the "Subordinated Debt Indenture"), between the
Company and The First National Bank of Chicago, as trustee. The Senior
Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as
the "Indentures."
The Units will be issued pursuant the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee under the Indenture referred to
therein, and as Warrant Agent Under the Warrant Agreement referred to
therein and the holders from time to time of the Units described therein.
Units may include, in addition to Notes, one or more (i) warrants
("Universal Warrants") entitling the holders thereof to purchase or sell
(a) securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination, of
the above, (b) currencies or composite currencies or (c) commodities, (ii)
purchase contracts ("Purchase Contracts") requiring the holders thereof to
purchase or sell (a) securities of an entity unaffiliated with the Company,
a basket of such securities, an index or indices of such securities or any
combination of the above, (b) currencies or composite currencies or (c)
commodities or (iii) any combination thereof. The applicable Pricing
Supplement will specify whether or not the Notes, Universal Warrants and
Purchase Contracts comprised by a Unit may or may not be separated from the
Unit. Universal Warrants issued as part of a Unit will be issued pursuant
to the Universal Warrant Agreement dated as of June 2, 1997 between the
Company and Chase, as Warrant Agent (the "Universal Warrant Agreement").
Purchase Contracts entered into by the Company and the holders thereof will
be governed by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Notes and the Units, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes or Units sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Notes and Units for its
own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a " Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Notes or Units purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for both the Senior Notes and the Subordinated Notes,
the Unit Agent for the Units and Purchase Contracts and Warrant Agent for the
Universal Warrants, and in each case, will perform the duties specified
herein. Each Note and each Unit will be represented by either (i) in the case
of the Notes, a Global Note and, in the case of the Units, a Global Unit (each
as defined below) delivered to Chase, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (in
the case of a Note, a "Book-Entry Note" and , in the case of a Unit, a
"Book-Entry Unit") or (ii) a certificate delivered to the holder thereof or a
person designated by such holder (in the case of a Note, a "Certificated Note"
and, in the case of a Unit, a "Certificated Unit"). Each Universal Warrant or
Purchase Contract which my be included in any Unit will be issued in the
corresponding global or certificated form. Except as set forth in the
Indentures, in the case of Notes, the Unit Agreement, in the case of Units and
Purchase Contracts, or the Universal Warrant Agreement, in the case of the
Universal Warrants, an owner of a Book-Entry Note or Book-Entry Unit (or of
any Universal Warrant or Purchase Contract included in such Book-Entry Unit),
as the case may be, will not be entitled to receive a Certificated Note or a
Certificated Unit (or certificated Universal Warrants or Purchase Contracts,
as applicable).
Book-Entry Notes and Book-Entry Units, which may be payable
in either U.S. dollars or other specified currencies, will be issued in
accordance with the administrative procedures set forth in Part I hereof as
they may subsequently be amended as the result of changes in DTC's
operating procedures. Certificated Notes and Certificated Units will be
issued in accordance with the administrative procedures set forth in Part
II hereof.
Unless otherwise defined herein, terms defined in the
Indentures, the Unit Agreement, the Universal Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts or any Prospectus
Supplement relating to the Notes and Units shall be used herein as therein
defined.
The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and
Book-Entry Units for eligibility in the book-entry system maintained by
DTC, Chase will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under (i) a Letter of Representations from the Company and Chase to DTC,
dated as of June 2, 1997, for medium-term notes (the "MTN Letter of
Representations"), (ii) a letter of representations from the Company and
Chase to DTC, dated as of June 2, 1997, for optionally exchangeable medium-
term notes (the "Optionally Exchangeable MTN Letter of Representations"),
(iii) a Letter of Representations from the Company and Chase to DTC, dated
as of June 2, 1997 for mandatorily exchangeable medium-term notes (the
"Mandatorily Exchangeable MTN Letter of Representation"), (iv) a Letter of
Representations from the Company and Chase to DTC, dated as of June 2, 1997
for global units consisting of medium-term notes and universal warrants
(the "Optionally Exchangeable Unit Letter of Representation") and (iv) a
Letter of Representations from the Company and Chase to DTC, dated as of
June 2, 1997 for global units consisting of medium-term notes and purchase
contracts (the "Mandatorily Exchangeable Unit Letter of Representation" and
collectively the "Letters of Representations") and a Medium-Term Note
Certificate Agreement between Chase and DTC, dated as of December 2, 1988,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, or one or more Book-Entry Units, the
Company will issue, in the case of the Notes, a
single global Note in fully registered form
without coupons (a "Global Note") representing
up to U.S. $200,000,000 principal amount of all
such Notes that have the same Original Issue
Date, Maturity Date and other terms and, in the
case of a Unit, a single global unit in fully
registered form (a "Global Unit"), representing
up to U.S. $200,000,000 face amount of all such
Units that have the same Original Issue Date and
that otherwise comprise the same securities and
have the same terms. Each Global Note, whether
issued alone or as part of a Unit, will be dated
and issued as of the date of its authentication
by Chase and each Global Unit will be dated and
issued as of the date of the issuances of the
Global Note or other securities comprised by
such Unit. Each Global Note, whether alone
or as part of a Unit, will bear an "Interest
Accrual Date," which will be (i) with respect
to an original Global Note (or any portion
thereof), its original issuance date and (ii)
with respect to any Global Note (or any
portion thereof) issued subsequently upon
exchange of a Global Note, or in lieu of a
destroyed, lost or stolen Global Note, the
most recent Interest Payment Date to which
interest has been paid or duly provided for
on the predecessor Global Note or Notes (or
if no such payment or provision has been
made, the original issuance date of the
predecessor Global Note), regardless of the
date of authentication of such subsequently
issued Global Note. Book-Entry Notes and
Book-Entry Units may be payable in either
U.S. dollars or other specified currencies.
No Global Note or Global Unit will represent,
any Certificated Note or Certificated Unit,
as the case may be.
Denominations: Book-Entry Notes and Book-Entry Units will be
issued in (i) in the case of Book-Entry Notes,
principal amounts of U.S. $1,000 or any
amount in excess thereof that is an integral
multiple of U.S. $1,000 or, if such Book-
Entry Notes are issued in a currency other
than U.S. dollars, principal amounts of such
currency in denominations of the equivalent
of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such currency),
unless otherwise indicated in the applicable
Pricing Supplement and (ii) in the case of
Book-Entry Units, denominations of a single
unit and any integral multiple thereof with
face amounts of U.S. $1,000 or any amount in
excess thereof that is an integral multiple
of U.S. $1,000 or, if such Book-Entry Units
are issued in a currency other than U.S.
dollars, face amounts of such currency in
denominations of the equivalent of U.S.
$1,000 (rounded to an integral multiple of
1,000 units of such currency), unless
otherwise indicated in the applicable Pricing
Supplement. Global Notes and Global Units
will be denominated in, in the case of Global
Notes, principal amounts not in excess of
U.S.$200,000,000 and, in the case of Global
Units, face amounts not in excess of U.S.
$200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in
excess of U.S. $200,000,000, or one or more
Book-Entry Units having an aggregate face
amount, in excess of $200,000,000 would, but
for the preceding sentence, be represented by
a single Global Note or Global Unit, as the
case may be, then one Global Note will be
issued to represent each U.S. $200,000,000
principal amount of such Book-Entry Note or
Notes and one Global Unit will be issued to
represent each U.S.$200,000,000 face amount
of such Book-Entry Unit or Units and an
additional Global Note or Global Unit, will
be issued to represent any remaining
principal amount of such Book-Entry Note or
Notes or face amount of such Book-Entry Unit
or Units. In such a case, each of the Global
Notes or Global Units representing such Book-
Entry Note or Notes or such Book-Entry Unit
or Units, as the case may be, shall be
assigned the same CUSIP number.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note or
Book-Entry Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the ▇▇▇▇▇
▇▇▇▇▇ Manual, of such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement
to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the
National Association of Securities Dealers, Inc.
(the "NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note or Unit.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
or a Book-Entry Unit and, in the case of the
Note, the authentication and issuance of the
Global Note representing such Note or, in the
case of the Unit, the completion and issuance of
the Global Unit representing such Unit (and of
each security comprised by such Unit) shall
constitute "settlement" with respect to such Note
or Unit, as the case may be. All orders accepted
by the Company will be settled on the fifth
Business Day pursuant to the timetable for
settlement set forth below unless the Company
and the purchaser agree to settlement on another
day, which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note and each Book-Entry Unit sold
by the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement), shall be
as follows:
A. In the case of a Book-Entry Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note, and, if so, the amortization
schedule, or, in the case of a Floating
Rate Book-Entry Note, the Initial Interest
Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
4. Redemption or repayment provisions, if
any.
5. Ranking.
6. Settlement date and time (Original Issue
Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
11. Whether the Note is a PERLS Note, and if
it is a PERLS Note, the Denominated
Currency, the Indexed Currency or
Currencies, the Payment Currency, the
Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount
of each Indexed Currency, the Aggregate
Fixed Amount of each Indexed Currency, the
Conversion Reference Amount or Amounts and
the Authorized Denominations (if other
than U.S. dollars).
12. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
13. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
14. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
15. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
16. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit
is a Book-Entry Unit, of the information set
forth in Settlement Procedures "A" above with
respect to Book-Entry Notes that constitute a
part of such Book-Entry Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities
comprised by such Unit).
7. If the Book-Entry Unit comprises
Book-Entry Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Universal
Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants
may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of
calculation); and
n. Any other applicable provisions.
8. If the Book-Entry Unit comprises
Book-Entry Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in "Settlement Procedure" "A" and "B"
above, as applicable. Chase will then assign a
CUSIP number to the Global Note representing a
Note, [whether issued alone or as part of a
Unit,] and will notify the Company and the Agent
of such CUSIP number(s) by telephone as soon as
practicable, except that for Optionally
Exchangeable and Mandatorily Exchangeable Notes
the Agent will obtain a CUSIP number for the
Global Note representing such Note and will
notify the Company and Chase of such CUSIP
number(s) by telephone as soon as practicable.
The Agent will obtain a CUSIP number for (i) the
Global Unit representing a Unit, (ii) the
Universal Warrant, if any, issued as part of a
Unit (if such Universal Warrant is to trade
separately from the Unit) and (iii) the Purchase
Contract, if any, issued as part of a Unit (if
such Purchase Contract is to trade separately
from the Unit) and, in each case will notify the
Company and Chase of such CUSIP number(s) by
telephone as soon as practicable.
▇. ▇▇▇▇▇ will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement
information to DTC, the Agent and Standard &
Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as
applicable.
2. The Initial Interest Payment Date for the
Notes, whether issued alone or as part
of a Unit, the number of days by which
such date succeeds the related DTC
Record Date and, if known, amount of
interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Note
(whether issued alone or as part of a
Unit), Global Unit, Universal Warrant
issued as part of a Unit (if separable
from such Unit) and Purchase Contract
issued as part of a Unit (if separable
from such Unit), as applicable.
4. Whether the Global Note or Global Unit
will represent any other Book-Entry Note
or Book-Entry Unit, as the case may be (to
the extent known at such time).
5. Whether any Note, issued alone or as part
of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent
and Chase.
▇. ▇▇▇▇▇ will, as applicable, authenticate,
complete and deliver the Global Note
representing the Note and will complete the
Global Unit representing the Unit (including,
as applicable, by countersigning and
delivering any Universal Warrants and by
countersigning, executing and delivering any
Purchase Contracts includable in such Unit).
F. DTC will credit such Note or Unit to Chase's
participant account at DTC.
▇. ▇▇▇▇▇ will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit the Note or Unit, as the case
may be, to Chase's participant account and
credit such Note or Unit to the Agent's
participant account and (ii) debit the
Agent's settlement account and credit Chase's
settlement account for an amount equal to the
price of such Note or Unit, as the case may
be, less the Agent's commission, if any. The
entry of such a deliver order shall
constitute a representation and warranty by
Chase to DTC that (a) the Global Note
representing a Book-Entry Note has been
issued and authenticated or a Global Unit
representing a Book-Entry Unit has been
completed and issued and (b) Chase is
holding such Global Note or Global Unit
pursuant to the Medium-Term Note Certificate
Agreement between Chase and DTC.
H. Unless the Agent is the end purchaser of a Note
or Unit, the Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such Note
or Unit to the Agent's participant account
and credit such Note or Unit to the
participant accounts of the Participants with
respect to such Note or Unit and (ii) to
debit the settlement accounts of such
Participants and credit the settlement
account of the Agent for an amount equal to
the price of such Note or Unit.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
▇. ▇▇▇▇▇ will credit to the account of the Company
maintained at Chase, New York, New York, in
funds available for immediate use in the amount
transferred to Chase in accordance with
"Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the
Note or Unit, the Agent will confirm the
purchase of such Note or Unit to the
purchaser either by transmitting to the
Participants with respect to such Note or
Unit a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
L. Monthly, Chase will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indentures or, in the case of Units, the
aggregate face amount of Units outstanding as of
that date, under the Unit Agreement, and setting
forth a brief description of any sales of which
the Company has advised Chase that have not yet
been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes or
Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as
possible but not later than the respective times
in New York City set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B", "C" and "D" shall be
completed as soon as practicable but no later
than 11:00 A.M., 11:00 A.M., 12 Noon and 2:00
P.M., respectively, on the first Business Day
after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note,
whether issued alone or as part of a Unit,
has not been determined at the time that
"Settlement Procedure" "A" is completed,
"Settlement Procedure" "C" and "D" shall be
completed as soon as such rate has been
determined but no later than 12 Noon and 2:00
P.M., respectively, on the first Business Day
before the settlement date. "Settlement
Procedure" "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note or a Book-
Entry Unit is rescheduled or canceled, Chase,
after receiving notice from the Company or
the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle: If Chase fails to enter an SDFS deliver order
with respect to a Book-Entry Note or a Book-
Entry Unit pursuant to "Settlement Procedure"
"G", Chase may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing
DTC to debit such Note or Unit to Chase's
participant account, provided that Chase's
participant account contains a principal
amount of the Global Note representing such
Note or a face amount of the Global Unit
representing such Unit that is at least equal
to the principal amount or face amount to be
debited. If a withdrawal message is
processed with respect to all the Book-Entry
Notes represented by a Global Note or all of
the Book-Entry Units represented by the
Global Units, Chase will ▇▇▇▇ such Global
Note or Global Unit "canceled," make
appropriate entries in Chase's records and
send such canceled Global Note or Global Unit
to the Company. The CUSIP number assigned to
such Global Note, Global Unit, Universal
Warrant included in such Unit, or Purchase
Contract included in such Unit, shall, in
accordance with the procedures of the CUSIP
Service Bureau of Standard & Poor's
Corporation, be canceled and not immediately
reassigned. If a withdrawal message is
processed with respect to one or more, but
not all, of the Book-Entry Notes represented
by a Global Note or with respect to one or
more, but not all, of the Book-Entry Units
represented by a Global Unit, Chase will
exchange such Global Note or Global Unit, as
the case may be, for two Global Notes or for
two Global Units, as the case may be, one of
which shall represent such Book-Entry Note or
Notes or such Book-Entry Unit or Units and
shall be canceled immediately after issuance
and the other of which shall represent the
remaining Book-Entry Notes or Book-Entry
Units previously represented by the
surrendered Global Note or Global Unit and
shall bear the CUSIP number of the
surrendered Global Note, Global Unit,
Universal Warrant included in such Unit, or
Purchase Contract included in such Unit.
If the purchase price for any Book-Entry Note
or Book-Entry Unit is not timely paid to the
Participants with respect to such Note or
Unit by the beneficial purchaser thereof (or
a person, including an indirect participant
in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the Agent may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures "G" and "H", respectively.
Thereafter, Chase will deliver the withdrawal
message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note or
Book-Entry Unit, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes or Book-Entry Units to have been
represented by a Global Note or a Global Unit,
as the case may be, Chase will provide, in
accordance with Settlement Procedures "E" and
"G", for the authentication and issuance of a
Global Note representing the Book-Entry Notes to
be represented by such Global Note and for the
issuance of a Global Unit representing the
Book-Entry Units to be represented by such
Global Unit and, in each case, will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
AND CERTIFICATED UNITS
Chase will serve as registrar in connection with
the Certificated Notes and the Certificated
Units.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by Chase
and each Certificated Unit will be deemed to be
dated as of the date of the underlying
Certificated Note. Each Certificated Note will
bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note
(or any portion thereof), its original issuance
date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or
in lieu of a destroyed, lost or stolen
Certificated Note, the original issuance date
of the predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note or
a Certificated Unit is accepted by or on behalf
of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note or Unit.
The Company (i) will arrange to file an
electronic format document, in the manner
prescribed by the ▇▇▇▇▇ ▇▇▇▇▇ Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act, (ii) will, as soon
as possible and in any event not later than
the date on which such Pricing Supplement is
filed with the Commission, deliver the number
of copies of such Pricing Supplement to the
Agent as the Agent shall request and (iii)
will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with
the NASD. The Agent will cause such Pricing
Supplement to be delivered to the purchaser
of the Note or the Unit, as the case may be.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note or a Certificated Unit
delivered to the Agent and the Agent's delivery
of such Note or Unit against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note and each Certificated
Unit sold by the Company to or through the
Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units
Terms Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note and, if so, the amortization
schedule, or, in the case of a Floating
Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Date(s), Interest
Payment Period, Calculation Agent, Base
Rate, Index Maturity, Index Currency,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if
any.
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of
OID, the yield to maturity, the initial
accrual period OID and the
applicability of Modified Payment upon
Acceleration (and if so, the Issue
Price).
16. Whether the Note is a PERLS Note, and if
it is a PERLS Note, the Denominated
Currency, the Indexed Currency or
Currencies, the Payment Currency, the
Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount
of each Indexed Currency, the Aggregate
Fixed Amount of each Indexed Currency, the
Conversion Reference Amount or Amounts and
the Authorized Denominations (if other
than U.S. dollars).
17. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
18. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
19. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
20. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent
will advise the Company by telephone that such
Unit is a Certificated Unit, of the information
set forth in Settlement Procedure "A" above with
respect to Certificated Notes that constitute a
part of such Certificated Unit and of the
following information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Face Amount.
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities
comprised by such Unit).
11. If the Certificated Unit comprises
Certificated Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants
may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation); and
n. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the sale date) of the information
set forth in Settlement Procedure "A" and "B"
above, as applicable.
D. The Company will have delivered to Chase a
pre-printed four-ply packet for each Note and
Unit, which packet will contain the following
documents in forms that have been approved by
the Company, the Agent, the Trustee and the Unit
Agent, as applicable:
1. Note with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
▇. ▇▇▇▇▇ will (i) with respect to a Note,
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the Agent
or (ii) with respect to a Unit, complete and
deliver the Unit (including countersigning and
delivering the Universal Warrant and
countersigning, executing and delivering the
Purchase Contract) with the confirmation Stubs
One and Two to the Agent. The Agent will
acknowledge receipt of the Note or the Unit, as
the case may be, by stamping or otherwise
marking Stub One and returning it to Chase.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at Chase,
New York, New York, or to such other account as
the Company shall have specified to the Agent
and Chase in funds available for immediate use,
of an amount equal to the price of such Note or
Unit less the Agent's commission, if any. In
the event that the instructions given by the
Agent for payment to the account of the
Company are revoked, the Company will as
promptly as possible wire transfer to the
account of the Agent an amount of immediately
available funds equal to the amount of such
payment made.
F. Unless the Agent is the end purchaser of such
Note or Unit, the Agent will deliver such
Note or Unit (with confirmation) to the
customer against payment in immediately
payable funds. The Agent will obtain the
acknowledgment of receipt of such Note or
Unit by retaining Stub Two.
▇. ▇▇▇▇▇ will send Stub Three to the Company by
first-class mail. Periodically, Chase will also
send to the Company a statement setting
forth, in the case of the Notes, the
principal amount of the Notes outstanding as
of that date under each Indenture and, in the
case of the Units, the aggregate face amount
of the Units outstanding under the Unit
Agreement and, in each case, setting forth a
brief description of any sales of which the
Company has advised Chase that have not yet
been settled.
Settlement Procedures
Timetable: For sales by the Company of Certificated Notes
or of Certificated Units to or through the Agent
(unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement),
Settlement Procedures "A" through "G" set forth
above shall be completed on or before the
respective times in New York City set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and
make payment for any Certificated Note or any
Certificated Unit, the Agent will notify the
Company and Chase by telephone and return such
Note or Unit to Chase. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an amount
equal to the amount previously credited thereto
in respect to such Note or Unit. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If
the failure shall have occurred for any reason
other than a default by the Agent in the
performance of its obligations hereunder and
under the Distribution Agreement, then the
Company will reimburse the Agent or Chase, as
appropriate, on an equitable basis for its loss
of the use of the funds during the period when
they were credited to the account of the
Company. Immediately upon receipt of the
Certificated Note or the Certificated Unit in
respect of which such failure occurred, Chase
will ▇▇▇▇ such note or Unit "canceled," make
appropriate entries in Chase's records and send
such Note or Unit, as the case may be, to the
Company.