Exhibit 1.1
NABISCO, INC.
$1,000,000,000
MEDIUM-TERM NOTES
Due from 9 Months or more from Date of Issue
U.S. DISTRIBUTION AGREEMENT
December 21, 1999
The Agents listed in
Schedule 1 hereto
Dear Sirs:
Nabisco, Inc., a New Jersey corporation (the "COMPANY"), confirms its
agreement with each of you with respect to the issue and sale from time to time
by the Company of up to $1,000,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) aggregate initial public offering
price of its medium-term notes due from 9 months or more from date of issue (the
"NOTES"). The Notes will be issued under an Indenture dated as of June 5, 1995
(the "INDENTURE") between the Company and Citibank, N.A., as Trustee (the
"TRUSTEE"), and 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 Company hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇") Banc of America Securities LLC, Chase Securities Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Read LLC (individually, an "AGENT" and collectively, the
"AGENTS") as its agents, subject to Section 8 and Section 11, for the purpose of
soliciting and receiving offers to purchase Notes from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent agrees to use
reasonable efforts to solicit and receive offers to purchase Notes upon terms
acceptable to the Company at such times and in such amounts as the Company shall
from time to time specify. In addition, any Agent may also purchase Notes as
principal pursuant to the terms of a terms agreement relating to such sale (a
"TERMS AGREEMENT") in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, 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 Notes. 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 to be transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Registration Statement","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 Registration
Statement and 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 each Agent as of the Commencement Date, as of each date on which
an Agent solicits offers to purchase Notes, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent pursuant
to a Terms Agreement), as of each date the Company issues and delivers Notes and
as of each date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Registration Statement
and 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 (A)
the representations and warranties set forth in this paragraph do not
apply (1) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to an Agent furnished to the
Company in writing by such Agent expressly for use therein or (2) to that
part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT"), of the Trustee and (B) the representations
and warranties set forth in clauses 1(b)(iii) and 1(b)(iv) above, when
made as of the Commencement Date or as of
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any date on which an Agent solicits offers to purchase Notes or on which
the Company accepts an offer to purchase Notes, shall be deemed not to
cover information concerning an offering of particular Notes to the extent
such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company 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.
(d) Each of Nabisco International, Inc., Nabisco Ltd., Nabisco
England IHC, Inc., Nabisco Brands Company and Nabisco Technology Company
(collectively, the "Principal Operating Subsidiaries") 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 Terms
Agreement (as hereinafter defined) has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity.
(g) The forms of Notes have been duly authorized and, when the Notes
have been executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the purchasers thereof, the
Notes will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Notes, the Indenture and any applicable Written Terms Agreement will not
contravene (i) any provision of applicable law or the certificate of
incorporation or by-laws of the Company or (ii) any agreement or
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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
(iii) 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 Indenture and any
applicable Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or, to
the best of the Company's knowledge, 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.
(k) The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
Notwithstanding the foregoing, the representations and warranties set
forth in clauses 1(b)(iii) and 1(b)(iv) and Sections 1(g) (except as to due
authorization of the Notes) and 1(h), when made as of the Commencement Date, or
as of any date on which an Agent solicits offers to purchase Notes, with respect
to any Notes the payments of principal or interest on which will be determined
by reference to one or more currency exchange rates, commodity prices, 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, unless otherwise specified in any
applicable pricing supplement.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. In connection with an Agent's actions as
agent hereunder, such Agent agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently,
the solicitation of offers to
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purchase Notes. Upon receipt of at least one business day's prior notice
from the Company, the Agents will forthwith suspend solicitations of
offers to purchase Notes from the Company until such time as the Company
has advised the Agents 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 a change in
the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions
and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the percentage set forth
below of the purchase price of such Note:
Maturity Commission
-------- ----------
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to less than 30 years .750%
30 years and beyond to be negotiated
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase
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Notes and may reject any offer in whole or in part. Each Agent shall have
the right to reject any offer to purchase Notes that it considers to be
unacceptable, and any such rejection shall not be deemed a breach of its
agreements contained herein. The procedural details relating to the issue
and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as
hereinafter defined).
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms
Agreement that will provide for the sale of such Notes to and the purchase
thereof by such Agent. Each Terms Agreement will take the form of either
(i) a written agreement between such Agent and the Company, which may be
substantially in the form of Exhibit A hereto (a "WRITTEN TERMS
AGREEMENT"), or (ii) an oral agreement between such Agent and the Company
confirmed in writing by such Agent to the Company.
An Agent's commitment to purchase Notes pursuant to a 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 Terms
Agreement shall specify the principal amount of Notes to be purchased by
such Agent pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such
Notes. Each such Terms Agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from the
independent public accountants of the Company pursuant to Section 4
hereof. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Notes purchased by an Agent as principal and the payment therefor shall be
as set forth in the Administrative Procedures. Each date of delivery of
and payment for Notes to be purchased by an Agent pursuant to a Terms
Agreement is referred to herein as a "SETTLEMENT DATE."
Unless otherwise specified in a Terms Agreement, if an Agent is
purchasing Notes as principal such Agent may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not exceed the
amount set forth in the Prospectus Supplement relating to such Notes.
(c) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes 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 the Agents.
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(d) DELIVERY. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to each Agent's obligation to
begin soliciting offers to purchase Notes as an agent of the Company shall
be delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Agents, not later than 1 p.m., New York City time, on the date hereof, or
at such other time and/or place as the Agents 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 the Agents begin soliciting offers to purchase
Notes and (ii) the first date on which the Company accepts any offer by an
Agent to purchase Notes pursuant to a Terms Agreement. The date of
delivery of such documents is referred to herein as the "COMMENCEMENT
DATE."
(e) OBLIGATIONS SEVERAL. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of any offering of the Notes pursuant
to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the
Agents copies thereof for their review and will not file any such proposed
supplement or amendment to which the Agents reasonably object; PROVIDED,
HOWEVER, that (i) 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), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the Commission and (ii)
any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. 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 the
Agents (i) of the filing of any amendment or supplement to the Basic
Prospectus (except that notice of the filing of an amendment or supplement
to the Basic Prospectus that merely sets forth the terms or a description
of particular Notes shall only be given to the Agent or Agents offering
such Notes), (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Basic Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use reasonable 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
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incorporated by reference in the Prospectus, no Agent shall be obligated
to solicit offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in the
opinion of the Agents 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 the Agents by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified by the
Company, the Agents 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 the Agents
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 the Agents,
that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any documents, certificates,
opinions and letters furnished to the Agents pursuant to Sections 3(f),
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 the Agents,
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, the Agents will resume the solicitation of offers to purchase
Notes hereunder. Notwithstanding any other provision of this paragraph,
until the earlier of (i) completion of the distribution of any Notes an
Agent may own as principal or (ii) 180 days after the date any Agent has
purchased Notes as principal from the Company, if any event described
above in this paragraph 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 such Agent,
will supply such amended or supplemented Prospectus to such Agent in such
quantities as it may reasonably request and shall furnish to such Agent
pursuant to Sections 3(f), 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as it 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 the Agents 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 Notes. If such fiscal quarter is the last fiscal
quarter of the Company's fiscal year, such earning
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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 each Agent, without charge, a signed
or conformed 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 such Agent 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 the
Agents shall reasonably request and to maintain such qualifications for as
long as the Agents shall reasonably request, provided that the Company
shall not be obligated to so qualify the Notes if such qualification
requires it to file any general consent to service of process or to
register or qualify as a foreign corporation in any jurisdiction in which
it is not so registered or qualified.
(f) The Company shall furnish to the Agents 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 Indenture,
the Notes, this Agreement, the Administrative Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder
or thereunder as the Agents may from time to time reasonably request.
(g) The Company shall notify the Agents 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 Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any 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 Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the Trustee
and its counsel, (iv) the qualification of the Notes under securities or
Blue Sky laws in accordance with the provisions of Section 3(e), including
filing fees and the fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue
Sky or Legal Investment Memoranda, (v) the printing and delivery to the
Agents in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Agents of copies of any Blue Sky or Legal Investment Memoranda, (vii)
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any fees charged by rating agencies for the rating of the Notes, (viii)
any expenses incurred by the Company in connection with a "road show"
presentation to potential investors and (ix) the fees and disbursements of
counsel for the Agents incurred in connection with the offering and sale
of the Notes and in connection with the establishment of the Notes
program, including any opinions to be rendered by such counsel hereunder,
and (x) any reasonable out-of-pocket expenses incurred by the Agents;
PROVIDED that any advertising expenses incurred by the Agents shall have
been approved by the Company.
(i) During the period beginning the date of any Terms Agreement and
continuing to and including the Settlement Date with respect to such Terms
Agreement, the Company will not, without such Agent's prior consent,
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company or warrants to purchase debt securities of the Company
substantially similar to the Notes that are to be sold pursuant to such
Terms Agreement (other than (i) the Notes that are to be sold pursuant to
such Terms Agreement, (ii) Notes previously agreed to be sold by the
Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in such Terms Agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's obligation to
solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes pursuant to any Terms Agreement and the obligation
of any other purchaser to purchase Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time the Company accepts the offer to purchase such Notes and at the time of
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 financial
condition or results of 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 the judgment of the relevant Agent, is material and adverse and
that makes it, in the judgment of such Agent, impracticable to
market the Notes 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
or the National Association of Securities Dealers, Inc., (B)
suspension of trading of any securities of the
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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 the judgment of the
relevant Agent, is material and adverse and, in the case of any of
the events described in clauses 4(a)(ii)(A) through 4(a)(ii)(D),
such event, singly or together with any other such event, makes it,
in the judgment of such Agent, impracticable to market the Notes 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 Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant
Agent in writing by the Company prior to such solicitation or,
in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was
made or (B) unless in each case described in Section 4(a)(ii)
above, the relevant event shall have occurred and been known
to the relevant Agent before such solicitation or, in the case
of a purchase of Notes, before the offer to purchase such
Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall
have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇, Executive Vice President, General Counsel and Secretary of the
Company, or his successor as chief legal officer of the Company, to
the effect that:
(A) the Company 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;
(B) each Principal Operating 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, as then amended or supplemented,
and is duly
11
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;
(C) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Notes, the Indenture and any applicable Written
Terms Agreement will not contravene 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, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
except for such contraventions as would not, individually or
in the aggregate, have a material adverse effect on the
financial condition or results of operations of the Company
and its subsidiaries taken as a whole, and no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, except such as have been obtained and except such
as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes;
(D) the statements (1) in the Registration Statement
under Item 15, (2) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (3) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since such annual report, 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;
(E) 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 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, as then amended
or supplemented, and are not so described nor of any statutes,
regulations, contracts or other documents 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 as
required;
12
(F) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
the Prospectus, as then amended or supplemented (except for
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 (except for
(x)financial statements and schedules, (y) that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to and (z) the section of the Prospectus
entitled "United States Federal Taxation" as to all of which
such counsel need not express any belief ) each part of the
Registration Statement, as then amended, if applicable, when
such part became effective, contained and 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 (except for financial statements and schedules
as to which such counsel need not express any belief) the
Prospectus, as then amended or supplemented, if applicable, 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 4(b)(i)(F)(3) and
4(b)(i)(F)(4) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic
Prospectus.
(ii) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President, Assistant General Counsel and Assistant Secretary 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 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 then amended or
supplemented
13
(B) each of this Agreement and any applicable Written
Terms Agreement has been duly authorized, executed and
delivered by the Company;
(C) the Indenture has been duly authorized by the
Company;
(D) the Notes have been duly authorized by the Company;
and
(E) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Notes, the Indenture and any applicable Written
Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole.
(iii) The opinion, dated as of such date, of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, outside counsel for the Company, to the effect that:
(A) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and equitable principles
of general applicability;
(B) the Notes have been duly authorized and, if executed
and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers
thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and equitable principles of general applicability;
(C) the statements made in the Prospectus, as then
amended or supplemented, under the captions "Description of
Debt Securities," "Description of Notes" and "Plan of
Distribution", insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to
therein, fairly summarize in all material respects the matters
referred to therein;
(D) such counsel is of the opinion ascribed to it in the
Prospectus, as then amended or supplemented, under the caption
"United States Federal Taxation";
14
(E) nothing has come to the attention of such counsel
that causes such counsel to believe that (1) (except for
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 Form T-1
heretofore referred to) each part of the Registration
Statement, as then amended, if applicable, when such part
became effective, contained and 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, (2) 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 (3) has no reason to believe that
(except for financial statements and schedules as to which
such counsel need not express any belief) the Prospectus, as
then amended or supplemented, if applicable, 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 4(b)(iii)(E)(2) and
4(b)(iii)(E)(3) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic
Prospectus.
(iv) The opinion, dated as of such date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Agents, covering the matters in Sections
4(b)(ii)(B), 4(b)(iii)(A), 4(b)(iii)(B) and 4(b)(iii)(D) (but only
as to the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt Securities"
and "Description of Notes"), and Sections 4(b)(i)(F).
Notwithstanding the foregoing, the opinions described in
Sections 4(b)(iii)(B) (except as to due authorization of the Notes)
and 4(b)(i)(C) and 4(b)(ii)(E) and Sections 4(b)(iii)(D),
4(b)(i)(F)(3), 4(b)(i)(F)(4), 4(b)(iii)(E)(2) and 4(b)(iii)(E)(3)
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 as to Notes the payments of principal or interest on
which will be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors.
With respect to Section 4(b)(iii)(E) above, ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ may state that their opinion and belief are based upon
their participation in the
15
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
and may rely as to certain matters of New Jersey law on the opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. With respect to Section 4(b)(i) above, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇ may rely as to certain matters of fact on certificates
of officers of the Company and of public officials and with respect
to matters of New Jersey law, on a member of the Company's legal
staff admitted to practice in the State of New Jersey, and may state
that such counsel expresses no opinion as to the laws of any
jurisdiction other than the State of New York, the federal law of
the United States, the Delaware General Corporation Law and the
corporate law of the State of New Jersey. With respect to Section
4(b)(i)(F), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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
and may rely as to certain matters of New Jersey law on the opinion
of a member of the Company's legal staff admitted to practice in the
State of New Jersey.
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ described in Section
4(b)(iii) above shall be rendered to the Agents at the request of
the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents 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 Section 4(a)(iii) 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 Terms
Agreement, on the corresponding Settlement Date, Deloitte & Touche LLP,
independent public accountants, shall have furnished to the relevant
Agents a letter or letters, dated the Commencement Date or such Settlement
Date, as the case may be, in form and substance satisfactory to such
Agents 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.
16
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they 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 a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), the Company will deliver or cause to
be delivered forthwith to each Agent 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 the Agents, 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), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of (i) the senior legal officer of the Company and (ii)
independent 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 the Agents and shall be of the same tenor as the opinion
referred to in Sections 4(b)(i) and 4(b)(ii), 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 an Agent may furnish to each Agent a letter to the
effect that such Agent 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 public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, 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. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any Agent 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 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,
17
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Agent furnished to the Company in writing by such Agent expressly for
use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent 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 Section 6(a) or 6(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 the Agents that are indemnified parties, in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company, in the
case of parties indemnified pursuant to Section 6(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
18
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 6(a) or 6(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other hand from the offering of such Notes or (ii) if the allocation provided by
clause 6(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
6(d)(i) above but also the relative fault of the Company on the one hand and
each Agent 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 each Agent on the other hand in connection with the offering
of such Notes shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
each Agent in respect thereof. The relative fault of the Company on the one hand
and each Agent 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 such Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Agent's obligation to contribute pursuant to
this Section 6 shall be several in the proportion that the principal amount of
the Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by PRO RATA
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) 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, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes referred to in Section 6(d) that were offered and
sold to the public through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
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
19
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 the Agents set forth in or made pursuant to this Agreement or any Terms
Agreement will remain in full force and effect regardless of (i) any termination
of this Agreement or any such Terms Agreement, (ii) any investigation made by or
on behalf of any Agent or any person controlling any Agent or by or on behalf of
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Notes.
7. POSITION OF THE AGENTS. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold the relevant Agent harmless against any loss, claim, damage
or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have received had such
sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 10 and 13 shall survive; PROVIDED that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 1, 2(b), 2(c), 3(a), 3(b), 3(d), 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, will be mailed, delivered or
telefaxed and confirmed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Manager, Credit Department (telefax number: 212-761-0780),
with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Managing
Director, Debt Syndicate, Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: MTN Product Management, 7th
Floor (telefax number (▇▇▇) ▇▇▇-▇▇▇▇), Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Medium-Term Note Desk (telefax number (212)
834-6081), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Credit Department (telefax number (▇▇▇) ▇▇▇-▇▇▇▇), ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
20
Incorporated, World Financial Center, North Tower, 15th Floor, New York, New
York 10281, Attention: MTN Product Management (telefax number (▇▇▇) ▇▇▇-▇▇▇▇),
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Managing Director Debt Syndicate (telefax number (▇▇▇) ▇▇▇-▇▇▇▇),
Warburg Dillon Read LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Debt Syndicate (telefax number (▇▇▇) ▇▇▇-▇▇▇▇), or, if sent to the Company, will
be mailed, delivered or telefaxed and confirmed to the Company at ▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant Treasurer (telefax
number (973) 682- 6619).
10. SUCCESSORS. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. AMENDMENTS. This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company and
each Agent; PROVIDED that the Company may from time to time, without the consent
of any Agent, amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such firm
shall become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto. The Agents shall sign any agreement, amendment
or supplement giving effect to the addition of any such firm as an Agent under
this Agreement. In addition, subject to the Administrative Procedures, the
Company may from time to time also offer Notes for sale otherwise than through
an Agent. The Company reserves the right to solicit or accept offers to purchase
Notes through an agent other than the Agents; PROVIDED, HOWEVER, that (i) in the
case of a continuous offering by such agent, the Company shall amend this
Agreement to add such agent as a party hereto pursuant to this Section 11,
whereupon such agent shall become an Agent hereunder on the same terms and
conditions as the other Agents that are parties hereto, or (ii) in the case of a
specific purchase of Notes by such agent, the Company engages such agent on a
reverse inquiry basis at a commission that is the same as that contained in
Section 2(a) of this Agreement with respect to Notes of identical maturities.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
21
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,
NABISCO, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
__________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
_________________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CHASE SECURITIES INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
22
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
_________________________________
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
_________________________________
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
WARBURG DILLON READ LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
23
SCHEDULE 1
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BANK OF AMERICA SECURITIES LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CHASE SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
WARBURG DILLON READ LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
Stamford, CT 06901
24
EXHIBIT A
NABISCO, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
________ __, 200_
NABISCO, INC.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: DISTRIBUTION AGREEMENT DATED DECEMBER 21, 1999 (THE "DISTRIBUTION
AGREEMENT")
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
Principal Amount
Name of Notes
---------------------------------------------- ------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
------------------
Banc of America Securities LLC
------------------
Chase Securities Inc.
------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Read LLC
------------------
Total......................................... $
==================
A-1
The Notes shall have 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: Spread:
Settlement date and time: Amortization schedule: Spread multiplier:
Place of delivery: Alternate rate event
spread:
Specified currency: Initial interest rate:
Maturity date: Initial interest reset
date:
Initial accrual period OID: Interest reset dates:
Total amount of OID: Interest reset period:
Original yield to maturity: Maximum interest rate:
Optional repayment date(s): Minimum interest rate:
Optional redemption date(s): Interest payment period:
Initial redemption date: Interest payment dates:
Initial redemption percentage: Calculation agent:
Annual redemption percentage
decrease:
Other terms:
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13 of
the 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.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their
A-2
respective names above bears to the aggregate amount of Notes set forth opposite
the names of all such non-defaulting Agents, or in such other proportions as
_____________ may specify, to purchase the Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase on such date; PROVIDED that in
no event shall the amount of Notes that any Agent has agreed to purchase
pursuant to this Agreement be increased pursuant to this paragraph by an amount
in excess of one-ninth of such amount of Notes without the written consent of
such Agent. If on the Settlement Date any Agent or Agents shall fail or refuse
to purchase Notes and the aggregate amount of Notes with respect to which such
default occurs is more than one-tenth of the aggregate amount of Notes to be
purchased on such date, and arrangements satisfactory to ___________ and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Agent or the Company. In any such case either ___________ or the
Company shall have the right to postpone the Settlement Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Agent from liability in respect of any default of such
Agent under this Agreement.](1)
This Agreement is also 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 13 of the Distribution Agreement shall survive for the
purposes of this Agreement.
----------
(1) Delete if the transaction will not be syndicated.
A-3
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
________________
[NAME OF RELEVANT AGENT(S)]
By:__________________________________
Name:
Title:
Accepted:
NABISCO, INC.
By:__________________________________
Name:
Title:
A-4