Exhibit 1.2
THE CHASE MANHATTAN CORPORATION
Medium-Term Notes
MASTER AGENCY AGREEMENT
As of February 1, 1990,
amended and restated
as of June 12, 1997
To the Agents listed on Exhibit A hereto and each person that shall have become
an Agent as provided in Section 14 hereof:
Dear Sirs:
1. Introduction. The Chase Manhattan Corporation, a Delaware corporation
(the "Company"), confirms its agreement with each of you (individually an
"Agent" and collectively the "Agents") with respect to the issue and sale from
time to time by the Company of its medium-term notes registered under the
registration statements referred to in Section 2(a) (collectively, the
"Securities"). The Securities will be issued (a) in the case of the Senior
Medium-Term Notes, Series C, under an Indenture dated as of December l, 1989, as
amended from time to time (as so amended and as it has been amended by the Trust
Indenture Reform Act of 1990, the "Senior Indenture"), between the Company and
Bankers Trust Company, as successor trustee (the "Senior Trustee"), and (b) in
the case of the Subordinated Medium-Term Notes, Series A, under the Amended and
Restated Indenture dated as of December 15, 1992, as amended from time to time
(as so amended and as it has been amended by the Trust Indenture Reform Act of
1990, the "Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between the Company and First Trust of New York, National
Association, as successor trustee (the "Subordinated Trustee" and, together with
the Senior Trustee, the "Trustees").
The Securities shall have the maturities, interest rates, redemption
provisions and other terms set forth in the Prospectus referred to in Section
2(a) as such Prospectus may be supplemented from time to time. The Securities
will be issued and the terms thereof established from time to time by the
Company in accordance with the Indentures and the applicable Procedures (as
defined in Section 3(g)).
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Agent as follows:
(a) A Registration Statement on Form S-3 (File Nos. 33-64261 and
33-49965) relating to senior and subordinated debt securities and other
securities of the Company has been filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Act"), and has become effective. Such registration statement, as
amended as of the Closing Date (as defined in Section 5 below), including
the documents incorporated therein by reference, is hereinafter referred
to as the "Registration Statement" and the prospectus relating to the
Registration Statement, as supplemented by a prospectus supplement setting
forth the terms of the Securities, including all material incorporated by
reference therein, in the form proposed to be filed on June 13, 1997 or
thereafter in the form in which such prospectus and prospectus supplement
have most recently been filed, or transmitted for filing, with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations (as defined below), is hereinafter referred to as the
"Prospectus".
(b) On the date it most recently became effective under the Act, the
Registration Statement conformed in all respects to the requirements of
the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations of the Commission under the Act and
the Trust Indenture Act (the "Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the Closing Date the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations and will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and at each of the times of amending or supplementing
referred to in Section 6(b) hereof, the Registration Statement and the
Prospectus as then amended or supplemented will conform in all respects to
the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that no
representation is made with respect to statements in or omissions from the
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Agent specifically for use therein.
(c) As of the time any Notes are issued and sold hereunder, the
applicable Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized and executed, and when authenticated
as provided in the applicable Indenture or the Procedures (as defined
herein) and paid for by the purchasers thereof, will constitute legal,
valid and binding obligations of the Company entitled to the benefits of
the applicable Indenture, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally, by general
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equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(d) As of the time any Notes are issued and sold hereunder, the
Company will be in compliance, to the extent necessary, with all
applicable provisions of Section 1 of Laws of Florida, Chapter 92-198, An
Act Relating to Disclosure of Doing Business with Cuba.
3. Establishment of Agency: Solicitations by Agents.
(a) Subject to the terms and conditions set forth herein and to the
reservation by the Company of the right to (i) sell Securities directly on
its own behalf at any time and to any person, (ii) cause additional Agents
to become parties to this Agreement or enter into similar agreements from
time to time pursuant to Section 14, (iii) sell Securities to any Agent,
acting as principal, for its own account or for resale to one or more
investors or to another broker-dealer, acting as principal, for purposes
of resale and (iv) accept (but not solicit) offers to purchase Securities
through additional agents on substantially the same terms and conditions
as would apply to the Agents, the Company hereby appoints each Agent an
agent of the Company for the purpose of soliciting and receiving offers to
purchase Securities from the Company.
(b) On the basis of the representations and warranties and subject
to the terms and conditions set forth herein, each Agent severally and not
jointly hereby agrees, as agent of the Company, to use reasonable efforts
when requested by the Company to solicit and receive offers to purchase
Securities upon the terms and conditions set forth in the Prospectus as
then amended or supplemented and in the applicable Procedures.
(c) Upon receipt of any notice delivered by the Company pursuant to
Section 4(b), each Agent shall suspend its solicitation of offers to
purchase Securities until the Company shall have amended or supplemented
the Registration Statement or the Prospectus as contemplated by Section
4(b) and shall have advised such Agent that such solicitation may be
resumed.
(d) The Company reserves the right, in its sole discretion, to
suspend, at any time and for any period, the solicitation of offers to
purchase Securities. Upon receipt of any notice of such suspension from
the Company, each Agent shall as soon as possible, but in no event later
than one Business Day (as defined in the applicable Procedures) in New
York City after receipt of such notice, suspend its solicitation of offers
to purchase Securities until the Company shall have advised such Agent
that such solicitation may be resumed.
(e) Each Agent shall promptly communicate to the Company, orally or
in writing, each offer to purchase Securities received by it as Agent,
other than offers rejected by it pursuant to the next sentence. Each Agent
shall have the right, in its
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discretion reasonably exercised, to reject as unreasonable any offer to
purchase Securities received by it and no such rejection shall be deemed a
breach of its obligations hereunder. The Company shall have the sole right
to accept offers to purchase Securities and may, in its sole discretion,
reject any offer in whole or in part.
(f) At the time of the settlement of any sale of Securities pursuant
to an offer presented by an Agent, the Company shall pay such Agent a
commission in accordance with the schedule set forth in Exhibit B hereto;
provided, however, that if the Company and the Agents agree that based on
market conditions and other factors in existence at the time of any sale
of Securities, such commissions shall be subject to negotiation between
the Company and the Agents and shall be disclosed in the pricing
supplement relating to such Securities.
(g) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Agents and the
Company. The initial Procedures, which are set forth in Exhibit C hereto,
shall remain in effect until changed by agreement between the Company and
the Agents. The Agents and the Company agree to perform the respective
duties and obligations, and to observe the restrictions, specifically
provided to be performed and observed by them in the applicable
Procedures.
4. Certain Agreements of the Company. The Company agrees with the Agents
that:
(a) The Company will advise each Agent promptly of any proposal to
amend or supplement the Prospectus or the Registration Statement or to
register the Securities under any registration statements other than the
Registration Statement referred to in Section 2(a) above (other than any
proposal for an amendment or supplement or additional registration
statement that relates only to the offering and sale of securities other
than the Securities or the offering and sale of Securities other than
through such Agent). The Company will also advise each Agent promptly of
the filing with the Commission of each amendment or supplement to the
Prospectus or the Registration Statement and each such additional
registration statement (other than any amendment, supplement or additional
registration statement that relates only to the offering and sale of
securities other than the Securities or the offering and sale of
Securities other than through such Agent) and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or any such additional registration statement, and will use its
best efforts to prevent the issuance of any such stop order and, if such a
stop order is issued, to obtain its lifting as soon as possible.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event shall occur as a result
of which the Prospectus as then amended or supplemented shall 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 under which they were made, not misleading, or if it shall
be necessary at any time to amend or supplement the Registration Statement
or the Prospectus to comply
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with the Act, the Company will promptly (i) notify each Agent to suspend
the solicitation of offers to purchase Securities and (ii) prepare and
file with the Commission an amendment or supplement that will correct such
untrue statement or omission or effect such compliance.
(c) The Company agrees that it will not solicit or accept offers to
purchase Securities from any Agent during any period when (i) the Company
shall have been advised by either Moody's Investors Services, Inc. or
Standard & Poor's Corporation that such organization has determined to
downgrade the rating of the Securities or any other debt obligations or
any preferred stock of the Company and such downgrade shall not yet have
been publicly announced, or (ii) there shall have occurred a material
change in the financial condition or business of the Company and its
subsidiaries, taken as a whole, and such event shall not have been
disclosed in the Prospectus (directly or by incorporation by reference);
provided, however, that the Company shall not be obligated to inform any
Agent of the reason for, or describe the occurrence of any event that may
have occasioned the need for, the suspension of its solicitation or
acceptance of offers.
(d) Not later than 16 months after the date of each acceptance by
the Company of an offer to purchase Securities hereunder, the Company will
make generally available to its security holders an earnings statement
that will satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder covering a period of at least 12 months beginning after the
last to occur of (i) the effective date of the Registration Statement,
(ii) the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
acceptance and (iii) the date of the Annual Report of the Company on Form
10-K most recently filed with the Commission prior to the date of such
acceptance.
(e) The Company will furnish to each Agent copies of the Prospectus
and of the Registration Statement (including the exhibits thereto relating
to the offering by the Company thereunder of the Securities, but excluding
the documents incorporated by reference), and all amendments and
supplements to the Prospectus and the Registration Statement and all
additional registration statements pursuant to which any of the Securities
may be registered (other than any amendment, supplement or additional
registration statement that relates only to the offering and sale of
securities other than Securities or any pricing supplement relating to the
offering and sale of Securities other than through such Agent), in each
case as soon as available and in such quantities as shall be reasonably
requested.
(f) The Company will arrange for the qualification of the Securities
for sale, if any, and the determination of their eligibility for
investment under the laws of such jurisdictions as the Agents designate
and will continue such qualifications in effect so long as required for
the distribution of the Securities.
(g) For so long as such Securities shall be outstanding, the Company
will furnish to such Agent, (i) as soon as practicable after the end of
each fiscal year, the
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number of copies reasonably requested by such Agent of its annual report
to stockholders for such year, (ii) as soon as available, the number of
copies reasonably requested by such Agent of each report (including
without limitation reports on Forms 10-K, 10-Q and 8-K) or definitive
proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
mailed to stockholders and (iii) from time to time, such other information
concerning the Company as such Agent may reasonably request. The Company
also will furnish each Agent with copies of any press release or general
announcement to the general public, in each case upon request by the
Agent.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and the reasonable fees and
disbursements of Cravath, Swaine & Moore, counsel for the Agents, in
connection with the offering and sale of the Securities and will reimburse
each Agent for any expenses (including fees and disbursements of counsel)
incurred by it in connection with the qualification of the Securities for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as such Agent may designate and the printing of
memoranda relating thereto and for any fees charged by investment rating
agencies for the rating of the Securities. The Company will determine with
the Agents the amount of advertising, if any, appropriate in connection
with the solicitation of offers to purchase Securities and will pay, or
reimburse the Agents for, all advertising expenses approved by it.
5. Conditions to Agents' Obligations. The obligation of each Agent to
solicit or receive offers to purchase Securities shall be subject to the
continued accuracy in all material respects of the representations and
warranties of the Company set forth herein, to the performance by the Company of
its obligations hereunder and to each of the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or such Agent,
shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as
amended or supplemented, shall 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.
(c) Subsequent to the date of this Agreement, there shall not have
occurred any change, or any development involving a prospective change, in
or affecting particularly the business or properties of the Company or its
subsidiaries that, in the judgment of such Agent, materially impairs the
investment quality of the Securities.
(d) Such Agent shall have received an opinion of Simpson Thacher &
Bartlett, counsel for the Company or such other counsel as is acceptable
to such Agent, including in-house counsel, dated the Closing Date, to the
effect that:
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(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with full corporate power and authority under such
laws to own its properties and carry on the business in which it is
engaged; The Chase Manhattan Bank has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of New York with full corporate power and authority under
such laws to own its properties and carry on the business in which
it is now engaged;
(ii) each Indenture has been duly and validly authorized,
executed and delivered by the Company and, assuming the due and
valid authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument enforceable in
accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditors' rights
generally; and each Indenture has been duly qualified under the
Trust Indenture Act and conforms to the description thereof in the
Prospectus;
(iii) the Securities have been duly authorized by the Company
and, when the terms of the Securities and of their issue and sale
have been duly established in accordance with the relevant Indenture
and this Agreement so as not to violate any applicable law or
agreement or instrument then binding on the Company, and when the
Securities have been duly executed by the Company and duly
authenticated in accordance with the provisions of the relevant
Indenture and upon payment and delivery in accordance with this
Agreement, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms and entitled
to the benefits of the relevant Indenture;
(iv) the issue and sale of the Securities and the compliance
by the Company with all the provisions of the Securities, the
Indenture and this Agreement, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company pursuant
to the terms of, any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to us and to
which the Company is a party or by which the Company may be bound or
to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of
the Restated Certificate of Incorporation, as amended, or the
By-Laws of the Company or any statute or any rule or regulation
applicable to the Company of any Federal, State or other regulatory
authority or other governmental body having jurisdiction over the
Company or, to the best of our knowledge, any order of any court or
of any Federal, State or other regulatory authority or other
governmental body having jurisdiction over the Company, and no
consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority
or other governmental body is required
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for the issue and sale of the Securities except the registration
under the Act of the Securities, the qualification of the Indenture
under the Trust Indenture Act, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under State securities or blue sky laws in connection with the
solicitation by the Agents of offers to purchase the Securities;
(v) the Registration Statement has become and is effective
under the Act and the Registration Statement and the Prospectus
comply as to form in all material respects with the requirements of
the Act and the Rules and Regulations (except that no opinion need
be expressed as to (a) financial statements and financial and
statistical data, (b) statements made in the Prospectus concerning
taxation, provided that such statements are covered by the opinion
of counsel for the Agents delivered pursuant to Section 5(g) hereto,
and (c) statements made in the Form T-l Statement of Eligibility and
Qualification of the Trustee);
(vi) although such counsel has not verified and is not passing
upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except those statements
describing the Securities and this Agreement, such counsel, based
upon its due diligence review of the affairs of the Company, as
described in such opinion, has no reason to believe that either the
Registration Statement or the Prospectus contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (except that no opinion need be expressed as
to (a) financial statements and financial and statistical data, (b)
statements made in the Prospectus concerning taxation, provided that
such statements are covered by the opinion of counsel for the Agents
delivered pursuant to Section 5(g) hereto and (c) statements made in
the Form T-l Statement of Eligibility and Qualification of the
Trustees); and such counsel does not know of any contracts or other
documents required to be summarized or disclosed in or filed as
exhibits to the Registration Statement or the Prospectus that have
not been so summarized, disclosed or filed; and
(vii) this Agreement has been duly authorized, executed and
delivered by the Company.
(e) Such Agent shall have received a certificate, dated the Closing
Date, of the Chairman of the Board, the President, any Vice-Chairman, the
Chief Financial Officer, the Treasurer or any other Executive Officer of
the Company in which such officer shall state, to the best of his or her
knowledge after reasonable investigation, that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the date of
such certificate, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and that,
subsequent
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to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries,
except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(f) Such Agent shall have received a letter of Price Waterhouse LLP,
addressed jointly to the Board of Directors of the Company and such Agent,
dated the Closing Date and satisfactory to such Agent, confirming that
they are independent public accountants within the meaning of the Act and
the Rules and Regulations, and stating in effect that (i) in their opinion
the financial statements and schedules examined by them and included in
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the Rules and
Regulations, (ii) on the basis of a reading of the latest available
interim financial statements of the Company, inquiries of officials of the
Company responsible for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them to
believe that (A) the unaudited financial statements in the Prospectus, if
any, do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and Regulations, or are
not stated on a basis substantially consistent with that of the audited
financial data in the Prospectus; (B) at the date of the latest available
balance sheet read by such accountants, or at a subsequent specified date
not more than five days prior to the Closing Date, there was any change in
the common stock, preferred stock or long-term debt of the Company and its
consolidated subsidiaries or any decrease (other than as occasioned by the
declaration of regular dividends) in consolidated stockholders' equity of
the Company and its consolidated subsidiaries as compared with amounts
shown on the latest audited balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest audited income
statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous year,
in the consolidated net interest income, net interest income after
provision for loan losses, or net income or net income per common share of
the Company and its subsidiaries on a consolidated basis, except in all
instances for changes or decreases set forth in such letter or which the
Prospectus discloses have occurred or may occur, and (iii) they have
compared certain agreed dollar amounts (or percentages derived from such
dollar amounts) and other financial information (and ratios) included in
the Prospectus (to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly from
such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter, and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter. For purposes of
this subsection, "Prospectus" shall mean the Prospectus as amended and
supplemented on the date of such letter. All financial statements included
in material incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
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(g) Such Agent shall have received from Cravath, Swaine & Moore,
counsel for the Agents, one or more opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other related
matters as it may reasonably require, and the Company shall have furnished
to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
The opinions, certificates, letters and other documents required to
be delivered by this Section 5 shall be delivered at the office of the Company
at 270 Park Avenue, New York, New York 10017, not later than 10:00 a.m., New
York City time, on the date the initial Agents, or additional agents as provided
in section 14, become parties to this Agreement (as amended through the date
hereof), or at such later time and date as may be mutually agreed upon by the
Company and such Agents, the time and date of such delivery being herein called
the "Closing Date". The Company will furnish each Agent with such conformed
copies of such opinions, certificates, letters and other documents as it may
reasonably request.
In the event that, after the Closing Date, the Company shall
determine (x) to increase pursuant to and in accordance with the terms and
provisions of the Indentures, the aggregate principal amount of the Securities
that may be authenticated and delivered under the Indentures and/or (y) to
register a portion of the Securities under a registration statement or
registration statements in addition to the Registration Statement referred to in
Section 2(a) above, the Company shall (i) promptly comply with its obligations
and take any steps as are required to be taken by it pursuant to Sections 4(a),
(e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on
the date on which any such supplements or amendments to the Prospectus or the
Registration Statements, or any additional registration statements, shall be
filed by the Company with the Commission under the Act and shall have been
declared or deemed effective, or at such later time and date as shall be
mutually agreed by the Company and such Agents, deliver to each Agent and its
counsel the opinions, certificates, letters and other documents required to be
delivered pursuant to paragraphs (d), (e), (f) and (g) of this Section 5, and
(iii) if applicable, deliver to each Agent a certificate, dated the date each of
the other certificates delivered pursuant to clause (ii) above are being
delivered, and executed by the Chairman of the Board, the President, any
Vice-Chairman, the Chief Financial Officer, the Treasurer, any other Executive
Officer of the Company, reaffirming each of the representations and warranties
of the Company set forth in Section 2 with respect to any registration statement
and any prospectus included in such registration statement filed after the date
hereof relating to the Securities.
For purposes of the documents required to be delivered pursuant to
the preceding paragraph, the term "Registration Statement" shall be deemed to
refer to the Registration Statement referred to in Section 2(a), together with
any such additional registration statement or registration statements relating
to the Securities, in each case as amended or supplemented; the term
"Prospectus" shall refer to the Prospectus as so amended or supplemented; and
the term "Closing Date" shall be deemed to refer to the date on which the
requirements under the preceding paragraph are satisfied. As of and after the
requirements of the preceding paragraph are
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satisfied, the foregoing terms shall be deemed to be so amended for all purposes
of this Agreement.
In the case of Agents other than the initial Agents, the conditions
set forth in paragraphs (d), (e), (f) and (g) of this Section 5 shall be deemed
satisfied by the delivery of copies of the documents delivered to the initial
Agents pursuant to such paragraphs on the Closing Date, as provided in the last
sentence of Section 14.
6. Additional Covenants of the Company. The Company agrees that:
(a) Each acceptance by the Company of an offer to purchase
Securities shall be deemed to be an affirmation that the representations
and warranties of the Company contained in this Agreement are true and
correct in all material respects at the time of such acceptance and a
covenant and an affirmation that such representations and warranties will
be true and correct at the time of delivery to the purchaser of the
Securities relating to such acceptance as though made at and as of such
time, it being understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as amended or
supplemented at such time.
(b) Promptly after the filing with the Commission of each amendment
of or supplement to the Registration Statement or the Prospectus under the
Act (other than any amendment or supplement which relates only to the
offering and sale of securities other than the Securities or which serves
only to set forth, or reflect a change in, the terms of any Securities or
the principal amount of Securities remaining to be sold or any similar
information), and each filing by the Company with the Commission of any
Quarterly Report on Form 10-Q or Annual Report on Form 10-K of the Company
incorporated by reference into the Prospectus, the Company shall furnish
each Agent with a certificate of the Chairman of the Board, the President,
any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other
Executive Officer of the Company, dated the date of such amendment,
supplement or filing, to the same effect as the certificate referred to in
Section 5(e), modified as necessary to relate to the Registration
Statement and the Prospectus as amended or supplemented to the date of
such certificate; provided, however, that the Company shall not be
required during any period in which it has instructed each Agent to cease
or each Agent has ceased soliciting offers to purchase Securities to
furnish each Agent with such certificate, provided that the obligation of
each Agent to begin thereafter to solicit offers to purchase Securities
shall be subject to the delivery of such certificate dated the latest date
on which the Company would but for this proviso have been required to
furnish such certificate.
(c) Promptly after the filing with the Commission of each Quarterly
Report on Form 10-Q or Annual Report on Form 10-K of the Company, the
Company shall furnish each Agent requesting it with a written opinion of
Simpson Thacher & Bartlett, counsel for the Company, or such other counsel
as is acceptable to each Agent, including in-house counsel, dated the date
on which such Form 10-Q or Form 10-K was filed with the Commission, to the
effect set forth in Section 5(d) hereof, but modified as necessary to
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relate to the Registration Statement and the Prospectus as amended or
supplemented at such date; provided, however, that, in lieu of such
opinion, such counsel may furnish each Agent with a letter to the effect
that such Agent may rely on a prior opinion delivered under Section 5(d)
or this Section 6(c) to the same extent as if it were dated the date of
such letter and the statements therein related to the Registration
Statement and the Prospectus as amended or supplemented at such date;
provided further that the Company shall not be required during any period
in which it has instructed each Agent to cease or each Agent has ceased
soliciting offers to purchase Securities to furnish each Agent with such
opinion or letter, provided that the obligation of each Agent to begin
thereafter to solicit offers to purchase Securities shall be subject to
the delivery of such opinion or letter dated not earlier than the date of
the most recent fiscal quarter end if such delivery is so requested by the
Agent.
(d) Within a reasonable time after each date on which the
Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information or any document that contains
additional financial information, such as a Quarterly Report on Form 10-Q,
shall be incorporated by reference into the Prospectus, the Company shall
cause Price Waterhouse LLP to furnish each Agent with a letter, addressed
jointly to the Board of Directors of the Company and the Agents and dated
such date, substantially in the form attached hereto as Exhibit D;
provided, however, that within a reasonable time after the filing with the
Commission of each Annual Report of the Company on Form 10-K, the Company
shall instead furnish each Agent with a letter addressed jointly to the
Board of Directors of the Company and the Agents and dated the date of
such filing, to the effect set forth in Section 5(f) insofar as Section
5(f) relates to such additional financial information; provided further,
that the Company shall not be required during any period in which it has
instructed each Agent to cease or each Agent has ceased soliciting offers
to purchase Securities to furnish each Agent with either letter referred
to above in this paragraph, provided that the obligation of each Agent to
begin thereafter to solicit offers to purchase Securities shall be subject
to the delivery of (i) such letter substantially in the form of Exhibit D
with respect to the period commencing with the beginning of the first
fiscal quarter following the date of the most recent Annual Report of the
Company on Form 10-K and ending with the end of the most recent fiscal
quarter or, if later, the period as to which the Company would but for
this proviso be required to furnish such a letter and (ii) such letter to
the effect set forth in Section 5(f) with respect to the most recent
Annual Report of the Company on Form 10-K.
(e) The Company agrees to offer to any person who shall have agreed
to purchase Securities (including any Agent that has agreed to purchase
Securities pursuant to Section 11 hereof) the right not to purchase such
Securities if, on the settlement date for such purchase, the conditions
set forth in Sections 5(a), (b), and (c), or any of them, shall not be
satisfied.
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7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Act
against any losses, claims, damages or liabilities, joint or several, to
which such Agent or such controlling person may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or any preliminary prospectus relating to the
Securities, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will, as such
expenses are incurred, reimburse each Agent and each such controlling
person for any legal or other expenses reasonably incurred by such Agent
or such controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided , however,
that the Company will not be liable to an Agent or person controlling such
Agent in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such
documents in reliance upon and in conformity with written information
furnished to the Company by such Agent specifically for use therein; and
provided, further, that with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to the Securities, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Agent (or to the
benefit of any person controlling such Agent) from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Agent or such controlling person results from the fact
that a copy of the Prospectus was not sent or given to any person at or
prior to the written confirmation of the sale of such Securities to such
person (provided that such Prospectus did not contain any such untrue
statement or omission or alleged untrue statement or omission and such
Prospectus was delivered to such Agent by the Company on a timely basis
enabling such Agent so to send or give a copy of such Prospectus in
accordance with such Agent's customary procedures). This indemnity
agreement will be in addition to any liability that the Company may
otherwise have.
(b) Each Agent will indemnify and hold harmless the Company, each of
its directors, each of its officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of
the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Prospectus,
or in any amendment or supplement thereto, or any related preliminary
prospectus relating to the Securities, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated
13
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by such Agent specifically for use therein; and will, as
such expenses are incurred, reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability that such Agent may otherwise have. The
Company acknowledges that the statements set forth in the legend
constituting the first paragraph of page S-2, and the second sentence of
the eighth paragraph and the twelfth paragraph under the heading "Plan of
Distribution" in the prospectus supplement forming a part of the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Agents for inclusion in the Prospectus, and the
Agents confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by such indemnifying party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section, for any reason other than as specified
therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution for liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the
Act. In determining the amount of contribution to which the respective
parties are entitled, there shall be considered the relative benefits
received by the Company on the one hand and any Agent on the other from
the offering by it pursuant to this Agreement of the Securities that are
the subject of the action (taking into account the portion of the proceeds
of the offering realized by each), the parties' relative knowledge and
access to information concerning the matter with respect to which the
claim was asserted the opportunity to correct and prevent any statement or
omission, as well as any other relevant equitable considerations. The
Company and the Agents agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita
14
allocation. Notwithstanding the provisions of this subsection (d), no
Agent shall be required to contribute any amount in excess of the amount
by which the commissions or underwriting discounts received by such Agent
relating to the Securities that are the subject of the action and which
were distributed to the public through it pursuant to this Agreement or
upon resale of Securities purchased by it from the Company exceed 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. The Agents' obligations to contribute are several in
proportion to their respective obligations hereunder and are not joint.
8. Status of Each Agent. In soliciting offers to purchase Securities
pursuant to this Agreement and in performing its other obligations hereunder,
each Agent is acting individually and not jointly with the other Agents and,
except as contemplated by Section 11, is acting solely as agent for the Company
and not as principal. Each Agent will make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Securities from the Company has been solicited by such Agent and accepted by the
Company, but shall have no liability to the Company in the event any such
purchase is not consummated. If the Company shall default in the performance of
its obligation to deliver Securities to a Purchaser whose offer it has accepted,
the Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default and (ii) pay to each Agent any
commission to which it would have been entitled had such Securities been
delivered.
9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of any Agent, the
Company or any of their respective representatives, officers or directors or any
controlling person and will survive delivery of and payment for the Securities.
If this Agreement is terminated pursuant to Section 10 or for any other reason,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 4(h) to the extent actually incurred by or committed
to by an Agent to the date of such termination, the obligations of the Company
pursuant to Section 4(b) shall remain in effect until the settlement of all
pending deliveries of and payment for securities and the respective obligations
of the Company and the Agents pursuant to Section 7 and the obligations of the
Company pursuant to Section 4(d) shall remain in effect.
10. Termination. This Agreement may be terminated as to any Agent at any
time by the Company or such Agent upon one day's written notice.
11. Purchases as Principal. Any Agent may agree with the Company from time
to time to purchase Securities from the Company as principal for its own account
or for resale to one or more investors or other purchasers, including other
broker-dealers. Each such purchase shall be in
15
accordance with the terms and conditions of this Agreement (other than the terms
of Section 3 hereof) and will be deemed to include the provisions of Exhibit E
hereto. Such supplemental agreement may be oral and, if oral, must be confirmed
promptly in writing (which writing may include facsimile transmission) by such
Agent to the Company. At the time of each purchase of Securities by an Agent as
principal, such Agent and the Company shall agree on any requirements for an
opinion of counsel, officer's certificate and letter from Price Waterhouse LLP
pursuant to paragraphs (d), (e) and (f) of Section 5.
12. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Company shall be directed to it at 270 Park Avenue, New York, New
York 10017, Attention: Deborah L. Duncan, Treasurer (facsimile No. (212)
270-0826) and notices to any Agent shall be directed to it at the address set
forth in Exhibit A hereto.
13. Governing Law: Counterparts. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. This Agreement
may be executed in counterparts and the executed counterparts shall together
constitute a single instrument.
14. Parties to Agreement. The Company may from time to time enter into
agreements appointing additional agents for the solicitation and sale of the
Securities and providing that such agents shall become, and shall have all the
rights and obligations of, an Agent hereunder. The Company may also enter into
similar agreements with Agents or other agents providing for the sale of
securities other than the Securities. This Agreement will inure to the benefit
of and be binding upon the Company, each Agent, the successors and permitted
assigns of the Company and each Agent and the officers, directors and
controlling persons referred to in Section 7, and no other person shall have any
right or obligation hereunder. No assignment by the Company of its rights under
this Agreement shall be effective without the prior written consent of each
Agent, and no assignment by any Agent of its rights under this Agreement shall
be effective without the prior written consent of the Company. The Company shall
deliver to each Agent, at or promptly after the time it becomes an Agent, a copy
of each document theretofore delivered to any Agent pursuant to Section 5 or 6.
THE CHASE MANHATTAN CORPORATION
By: /s/ Deborah L. Duncan
------------------------
Name: Deborah L. Duncan
Title: Treasurer
CHASE SECURITIES INC.
By: /s/ Robert Taylor
------------------------
Name: Robert Taylor
Title: Managing Director
16
BEAR, STEARNS & CO. INC.
By: /s/ Timothy A. O'Neill
-------------------------------
Name: Timothy A. O'Neill
Title: Senior Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Helena M. Willner
-----------------------
Name: Helena M. Willner
Title: Vice President
/s/ Goldman, Sachs & Co.
------------------------
(Goldman, Sachs & Co.)
LEHMAN BROTHERS INC.
By: /s/ Nelson Soares
--------------------------
Name: Nelson Soares
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
------------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot, III
--------------------------------
Name: Harold J. Hendershot, III
Title: Vice President
17
SALOMON BROTHERS INC
By: /s/ Martha D. Bailey
------------------------
Name: Martha D. Bailey
Title: Vice President
SMITH BARNEY INC.
By: /s/ Robert R. Holloman
---------------------------
Name: Robert R. Holloman
Title: Managing Director
18