<PAGE>
As filed with the Securities and Exchange Commission on April 7, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST DATA CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 47-0731996
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
401 Hackensack Avenue
Hackensack, New Jersey 07601
(201) 525-4700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
David P. Bailis
General Counsel
First Data Corporation
2121 North 117th Avenue
Omaha, Nebraska 68164
(402) 498-2170
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies to:
Thomas A. Rossi Jim L. Kaput
First Data Corporation Sidley & Austin
2121 North 117th Avenue One First National Plaza
Omaha, Nebraska 68164 Chicago, Illinois 60603
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]__________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]_______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Proposed Proposed
Title of each class of Amount to maximum maximum
securities to be be offering price aggregate Amount of
registered registered per unit offering price (1) registration fee
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<S> <C> <C> <C> <C>
Debt Securities (2), (5) (5) $750,000,000(6) $227,273 (7)(8)
Preferred Stock (3)
and Common Stock (4)
- --------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
The aggregate initial public offering price of the securities registered
hereby will not exceed $750,000,000 in U.S. dollars or the U.S. dollar
equivalent in foreign currency or currency units.
(2) May be issued at an original issue discount.
(3) Includes such presently indeterminable number of shares of Preferred
Stock as may be issuable from time to time upon conversion of Debt
Securities.
(4) Includes such presently indeterminable number of shares of Common Stock
as may be issuable from time to time upon conversion of Debt Securities
or Preferred Stock.
(5) The amount to be registered and the proposed maximum offering price per
unit has been omitted pursuant to Rule 457(o) under the Securities Act
of 1933.
(6) This Registration Statement also relates to securities with a proposed
maximum aggregate offering price of $250,000,000 registered on
Registration Statement No. 333-4012.
(7) The registration fee has been calculated pursuant to Rule 457(o) under
the Securities Act of 1933.
(8) A registration fee relating to securities with a maximum aggregate
offering price of $250,000,000 in the amount of $86,207 was paid at the
time of the filing of Registration Statement No. 333-4012 filed on April
25, 1996.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
constituting a part of this Registration Statement also relates to securities
registered by the Registrant under the Securities Act of 1933 on Registration
Statement No. 333-4012.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 7, 1997
PROSPECTUS
$750,000,000
First Data Corporation
Securities
First Data Corporation, a Delaware corporation (the ''Company'' or ''FDC''),
may offer from time to time (i) unsecured debt securities (''Debt Securities'')
consisting of debentures, notes and/or other unsecured evidences of indebtedness
in one or more series, (ii) shares of preferred stock, par value $1.00 per share
(''Preferred Stock''), in one or more series, or (iii) shares of common stock,
par value $.01 per share (''Common Stock'') (the Debt Securities, Preferred
Stock and Common Stock are collectively referred to as ''Securities''), or any
combination of the foregoing, at an aggregate initial public offering price not
to exceed $750,000,000 (or the equivalent thereof if Debt Securities are
denominated in one or more foreign currencies or foreign currency units), at
prices and on terms to be determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this Prospectus is being
delivered will be set forth in an accompanying Prospectus Supplement (as
supplemented by any applicable pricing supplement relating thereto, a
''Prospectus Supplement''), together with the terms of the offering of the
Securities, the initial public offering price and the net proceeds to the
Company from the sale thereof. The Prospectus Supplement will set forth, among
other matters, the following with respect to the particular Securities: (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior debt (''Senior Securities'') or subordinated debt
(''Subordinated Securities''), authorized denominations, maturity, rate or
method of calculation of interest and dates for payment thereof, any conversion,
redemption, prepayment or sinking fund provisions, and the currency, currencies
or currency units in which principal, premium, if any, or interest, if any, is
payable, (ii) in the case of Preferred Stock, the designation, number of shares,
liquidation preference, initial public offering price, dividend rate (or method
of calculation thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any redemption or sinking fund provisions,
any conversion or exchange rights and (iii) in the case of Common Stock, the
number of shares of Common Stock and the terms of the offering and sale thereof.
-----------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------------
The Company may sell Securities directly to purchasers or through agents
designated from time to time by the Company or to or through underwriters or a
group of underwriters which may be managed by one or more underwriters. If any
agents of the Company or any underwriters are involved in the sale of Securities
in respect of which this Prospectus is being delivered, the names of such agents
or underwriters and any applicable commission or discount will be set forth in
the applicable Prospectus Supplement. The net proceeds to the Company from the
sale of Securities will be the initial public offering price of such Securities
less such discount, in the case of an offering through an underwriter, or the
purchase price of such Securities less such commission, in the case of an
offering through an agent, and less, in each case, other expenses of the Company
associated with the issuance and distribution of such Securities.
-----------------------------
The date of this Prospectus is , 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the ''Exchange Act''), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the ''Commission''). The Company has filed
with the Commission a registration statement on Form S-3 (the ''Registration
Statement'') under the Securities Act of 1933, as amended (the ''Securities
Act''), with respect to the Securities offered hereby. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all
information set forth in the Registration Statement and reference is hereby made
to the Registration Statement and the exhibits thereto for further information
with respect to the Company and the Securities offered hereby. Such reports,
proxy statements, Registration Statement and exhibits and other information
omitted from this Prospectus can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at its Northeast Regional Office located at 7 World
Trade Center, Suite 1300, New York, New York 10048 and Midwest Regional Office
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can be obtained at prescribed rates
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549. On May 6, 1996, the Company became subject to the
electronic filing requirements of the Commission. Accordingly, pursuant to the
rules and regulations of the Commission, certain documents, including annual and
quarterly reports and proxy statements, filed by the Company with the Commission
on and after May 6, 1996 have been or will be electronically filed. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission at (http://www.sec.gov). Certain of the Company's
securities are listed on the New York Stock Exchange and such reports, proxy
statements and other information may also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report of the Company on Form 10-K for the year ended December 31,
1996, the Current Report of the Company on Form 8-K dated January 30, 1997 and
the registration statement of the Company on Form 8-A, dated March 24, 1992, are
incorporated by reference into this Prospectus. All documents filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Securities contemplated hereby shall be deemed to be
incorporated by reference into this Prospectus and to be made a part hereof from
the respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein, in the
accompanying Prospectus Supplement or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
Copies of the above documents (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents)
may be obtained upon written or oral request without charge from the Company,
5660 New Northside Drive, Atlanta, Georgia 30328 (telephone number (770) 857-
7118), Attention: Investor Relations.
-----------------------------
The following trademarks are mentioned in this Prospectus: ''First Data(R)''
and ''First Data Corporation(R)'' are service marks of First Data Corporation.
The Company is incorporated in Delaware. Its executive offices are located at
401 Hackensack Avenue, 7th Floor, Hackensack, New Jersey 07601 (telephone number
(201) 525-4700).
-2-
<PAGE>
THE COMPANY
The Company provides high-quality, high-volume information processing and
related services including: transaction card issuer services and merchant
processing services, payment instruments, investment processing services, check
acceptance and guaranty services, health care administration services,
receivables management services, in-store banking services, teleservices and
imaging, database and other information management services. The Company's
information processing facilities are comprised of integrated networks of
computer hardware, proprietary software and other telecommunications and
operations systems. The Company has data centers which are capable of servicing
a wide range of client groups, enabling it to process transactions for thousands
of clients in a rapid and cost effective manner and to take advantage of
economies-of-scale when adding new clients. The Company regularly considers
acquisition opportunities as well as other forms of business combinations and
divestitures. Historically, the Company has been involved in numerous
transactions of varying magnitudes, for consideration which has included cash or
securities (including common stock) or combinations thereof. The Company
continues to evaluate and pursue transaction opportunities as they arise. No
assurance can be given with respect to the timing, likelihood or the financial
or business effect of any possible transaction.
USE OF PROCEEDS
Except as set forth in the Prospectus Supplement for a specific offering of
Securities, the net proceeds from the sale of the Securities will be applied by
the Company for general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for the
Company and its consolidated subsidiaries for the periods indicated. The Company
to date has not issued Preferred Stock; therefore, the ratios of earnings to
combined fixed charges and preferred stock dividends are the same as the ratios
of earnings to fixed charges set forth below.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------
<S> <C> <C> <C> <C> <C>
1996 1995(a) 1994 1993 1992
---- ------- ---- ---- -----
Ratio of earnings to fixed charges.. 7.19x 2.03x 6.96x 6.59x 4.25x
</TABLE>
The computation of the ratio of earnings to fixed charges is based on
applicable amounts of the Company and its consolidated subsidiaries.
''Earnings'' consist of income before income taxes and fixed charges. ''Fixed
charges'' consist of interest on indebtedness, amortization of debt discount and
expense and an estimated amount of rental expense that is deemed to be
representative of the interest factor.
- ------------------------------
(a) Includes a merger, integration and impairment charge of $645.7 million
relating to the Company's October 27, 1995 merger with First Financial
Management Corporation. The pro forma ratio of earnings to fixed charges
without this charge would have been 6.00x.
DESCRIPTION OF DEBT SECURITIES
The Senior Securities are to be issued under an indenture dated as of March
26, 1993, as supplemented from time to time (the ''Senior Indenture''), between
the Company and Norwest Bank Minnesota, National Association, as Trustee, and
the Subordinated Securities are to be issued under an indenture dated as of
April 1, 1996, as supplemented from time to time (the ''Subordinated
Indenture''), between the Company and The Bank of New York, as Trustee. The term
''Trustee'' as used herein shall refer to either Norwest Bank Minnesota,
National Association or The Bank of New York, as appropriate, for Senior
Securities or Subordinated Securities. The Senior Indenture and the Subordinated
Indenture (being referred to herein collectively as the ''Indentures'' and
individually as an ''Indenture'') are filed as exhibits to the Registration
Statement. The Indentures are subject to and governed by the Trust Indenture Act
of 1939, as amended. The statements made under this heading relating to the Debt
Securities and the Indentures are summaries of the provisions thereof, and are
subject to, and are qualified in their entirety by reference to the Indentures,
including the definitions of certain terms therein. Certain capitalized terms
used below but not defined herein have the meanings ascribed to them in the
Indentures. Unless otherwise noted, section references below are to both
Indentures.
-3-
<PAGE>
GENERAL
The Debt Securities will be unsecured obligations of the Company. The
indebtedness represented by the Senior Securities will rank on a parity with the
Company's other unsecured and unsubordinated indebtedness. The indebtedness
represented by the Subordinated Securities will be subordinated in right of
payment to the prior payment in full of the Senior Indebtedness of the Company
as described under ''Subordination'' below. The Debt Securities may be issued in
one or more series. The particular terms of the Debt Securities being offered
(the ''Offered Debt Securities''), any modifications of or additions to the
general terms of the Debt Securities and any applicable Federal income tax
considerations that may be applicable in the case of the Offered Debt Securities
will be described in the Prospectus Supplement relating to the Offered Debt
Securities. Accordingly, for a description of the terms of the Offered Debt
Securities, reference must be made both to the Prospectus Supplement relating
thereto and the description of Debt Securities set forth in this Prospectus.
The Company primarily conducts its operations through its subsidiaries. The
rights of the Company and its creditors, including the Holders (as defined below
under ''Certain Definitions'') of the Debt Securities, to participate in the
distribution of assets of any subsidiary upon the latter's liquidation or
reorganization or otherwise will be subject to the prior claims of the
subsidiary's creditors except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary. Accordingly, the Debt
Securities will be effectively subordinated to existing and future liabilities
of the Company's subsidiaries.
Reference is made to the Prospectus Supplement for the terms of any series of
Debt Securities being offered, including: (1) the title of such Debt Securities
and whether they are Senior Securities or Subordinated Securities; (2) the
aggregate principal amount of such Debt Securities; (3) the percentage of the
principal amount at which such Debt Securities will be issued and, if other than
the principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the Maturity (as defined below under
''Certain Definitions'') thereof; (4) the date or dates on which or periods
during which such Debt Securities may be issued, and the date or dates on which
the principal of (and premium, if any, on) such Debt Securities will be payable;
(5) the rate or rates at which such Debt Securities will bear interest, if any,
or the method by which such rate or rates shall be determined, the date or dates
from which such interest, if any, shall accrue, the interest payment dates on
which such interest will be payable and, in the case of Registered Securities
(as defined below under ''Certain Definitions''), the regular record dates, if
any, for the interest payable on such interest payment dates; (6) the additional
offices, if any, where the principal of (and premium, if any) and interest on
such Debt Securities shall be payable; (7) the obligation, if any, of the
Company to redeem, repay or purchase such Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of the Holder and the
period or periods within which, or the date or dates on which, the prices at
which and the terms and conditions upon which such Debt Securities shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) the period or periods within which, or the date or dates on which, the price
or prices at which, and the terms and conditions upon which such Debt Securities
may be redeemed, if any, in whole or in part, at the option of the Company or
otherwise; (9) if the coin or currency in which such Debt Securities shall be
issuable is U.S. dollars, the denominations of such Debt Securities if other
than denominations of $1,000 and any integral multiple thereof; (10) whether
such Debt Securities are to be issued as original issue discount securities
(''Discount Securities'') and the amount of discount at which such Debt
Securities may be issued and, if other than the principal amount thereof, the
portion of the principal amount of such Debt Securities which shall be payable
upon declaration of acceleration of the Maturity thereof upon an Event of
Default (as defined below under ''Events of Default''); (11) provisions, if any,
for the defeasance of such Debt Securities; (12) whether such Debt Securities
are to be issued as Registered Securities or Bearer Securities or both, and, if
Bearer Securities are issued, whether any interest coupons appertaining thereto
(''Coupons'') will be attached thereto; (13) whether provisions for payment of
additional amounts or tax redemptions shall apply and, if such provisions shall
apply, such provisions; and, if Bearer Securities of such series are to be
issued, the applicable procedures and certificates relating to the exchange of
temporary Global Securities for definitive Bearer Securities; (14) if other than
U.S. dollars, the currency, currencies or currency units (the term ''currency''
as used herein will include currency units) in which such Debt Securities shall
be denominated or in which payment of the principal of (and premium, if any) and
interest on such Debt Securities may be made; (15) if the principal of (and
premium, if any) or interest on such Debt Securities are to be payable, at the
election of the Company or a Holder thereof, in a currency other than that in
which such Debt Securities are denominated or payable without such election, the
period or periods within which and the terms and conditions upon which, such
election may be made; (16) the date as of which such Debt Securities shall be
dated; (17) if the amount of payments of principal of (and premium, if any) or
interest on such Debt Securities may be determined with reference to an index,
the manner in which such amounts shall be determined; (18) if such Debt
Securities are denominated or payable in a foreign currency, any other terms
concerning the payment of principal of (and premium, if any) or any interest on
such Debt Securities; (19) any addition to, or modification or deletion of, any
Events of Default or covenants provided for with respect to such Debt
Securities; (20) whether such Debt Securities shall be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
depositary or any common depositary for such Global Securities; and if such Debt
Securities are issuable only as Registered
-4-
<PAGE>
Securities, the manner in which and the circumstances under which Global
Securities representing such Debt Securities may be exchanged for Registered
Securities in definitive form; (21) if such Debt Securities are Subordinated
Securities, whether they will be convertible into shares of Common Stock and, if
so, the terms and conditions, which may be in addition to or in lieu of the
provisions contained in the Subordinated Indenture, upon which such Debt
Securities will be so convertible; and (22) any other terms not inconsistent
with the applicable Indenture. (Section 3.01)
Each Indenture provides that the aggregate principal amount of Debt Securities
that may be issued thereunder is unlimited. The Debt Securities may be issued in
one or more series thereunder, in each case as authorized from time to time by
the Board of Directors of the Company, or any committee thereof or any duly
authorized officers. (Section 3.01)
In the event that Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating thereto.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company to incur indebtedness or that would
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving the Company. However, the general provisions of
the Senior Indenture do provide that neither the Company nor any Subsidiary (as
defined below under "Certain Definitions") may subject certain of its property
or assets to any mortgage or other encumbrance unless the Debt Securities issued
under the Senior Indenture are secured equally and ratably with or prior to such
other indebtedness thereby secured. See "Certain Covenants of Senior
Securities" below. Reference is made to the Prospectus Supplement related to
the Offered Debt Securities for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company that are described below, including any addition of covenants or other
provisions providing event risk or similar protection.
All of the Debt Securities of a series need not be issued at the same time,
and may vary as to interest rate, maturity and other provisions and unless
otherwise provided, a series may be reopened for issuance of additional Debt
Securities of such series. (Section 3.01)
DENOMINATIONS, EXCHANGE, REGISTRATION AND TRANSFER
Unless otherwise specified in the Prospectus Supplement, the Debt Securities
of any series shall be issuable only as Registered Securities in denominations
of $1,000 and any integral multiple thereof and shall be payable only in U.S.
dollars. (Section 3.02) The Indentures also provide that Debt Securities of a
series may be issuable in global form. See "Book-Entry Debt Securities."
Unless otherwise indicated in the Prospectus Supplement, Bearer Securities will
have Coupons attached. (Section 2.01)
Registered Securities of any series will be exchangeable for other Registered
Securities of the same series of like aggregate principal amount and of like
Stated Maturity (as defined below under "Certain Definitions") and with like
terms and conditions. If so provided in the Prospectus Supplement, at the option
of the Holder thereof, to the extent permitted by law, any Bearer Security of
any series which by its terms is registrable as to principal and interest may be
exchanged for a Registered Security of such series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of such Bearer Security at the corporate trust office of the
applicable Trustee or at any other office or agency of the Company designated
for the purpose of making any such exchanges. Subject to certain exceptions, any
Bearer Security issued with Coupons surrendered for exchange must be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
(Section 3.05)
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange. (Section 3.05)
Except as otherwise specified in the Prospectus Supplement, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities. (Section 3.05)
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained for such purpose, the
Company shall execute, and the applicable Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and
-5-
<PAGE>
conditions. No service charge will be made for any transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. (Section 3.05)
The Company shall not be required (i) to register, transfer or exchange Debt
Securities of any series during a period beginning at the opening of business 15
days before the day of the transmission of a notice of redemption of Debt
Securities of such series selected for redemption and ending at the close of
business on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
(Section 3.05)
CERTAIN COVENANTS OF SENIOR SECURITIES
The Senior Indenture contains, among other things, the following covenants:
Limitation Upon Mortgages and Liens. Neither the Company nor a Subsidiary may
create or assume, except in favor of the Company or a Wholly-Owned Subsidiary
(as defined below under "Certain Definitions"), any mortgage, pledge, lien or
encumbrance upon any Principal Facility (as defined below under "Certain
Definitions") or any stock of any Subsidiary or indebtedness of any Subsidiary
to the Company or any other Subsidiary without equally and ratably securing the
Outstanding Senior Securities. This limitation will not apply to certain
permitted encumbrances as described in the Senior Indenture, including (a)
purchase money mortgages entered into within specified time limits; (b) liens
extending, renewing or refunding any liens permitted by clause (a) of this
covenant; (c) liens existing on acquired property; (d) certain tax,
materialmen's, mechanics' and judgment liens, certain liens arising by operation
of law and certain other similar liens; (e) liens in connection with certain
government contracts; (f) certain mortgages, pledges, liens or encumbrances in
favor of any state or local government or governmental agency in connection with
certain tax-exempt financings; (g) liens to secure the cost of construction or
improvement of any property entered into within specified time limits; and (h)
mortgages, pledges, liens and encumbrances not otherwise permitted if the sum of
the indebtedness thereby secured plus the aggregate sales price of property
involved in sale and lease back transactions referred to in clause (a) under "-
- -Limitation Upon Sale and Leaseback Transactions" below does not exceed the
greater of $50,000,000 or 10% of Consolidated Stockholders' Equity (as defined
below under "Certain Definitions"). (Section 12.07 of the Senior Indenture)
Limitation Upon Sale and Leaseback Transactions. The Company and any
Subsidiary will be prohibited from selling any Principal Facility owned on the
date of the Senior Indenture with the intention of taking back a lease thereof,
other than a temporary lease (a lease of not more than 36 months) with the
intent that the use of the property by the Company or such Subsidiary will be
discontinued at or before the expiration of such period, unless (a) the sum of
the sale price of property involved in sale and leaseback transactions not
otherwise permitted plus all indebtedness secured by mortgages, pledges, liens
and encumbrances referred to in clause (g) under "--Limitation Upon Mortgages
and Liens" above does not exceed the greater of $50,000,000 or 10% of
Consolidated Stockholders' Equity; or (b) the greater of the net proceeds of
such sale or the fair market value of such Principal Facility (which may be
conclusively determined by the Board of Directors of the Company) are applied
within 120 days to the optional retirement of Outstanding Senior Securities or
to the optional retirement of other Funded Debt (as defined below under
"Certain Definitions") of the Company ranking on a parity with the Senior
Securities. (Section 12.08 of the Senior Indenture)
In addition, unless otherwise specified in the applicable Prospectus
Supplement, the Senior Securities of each series will contain the following
covenant:
Limitation on Indebtedness of Restricted Subsidiaries. No Restricted
Subsidiary (as defined below under "Certain Definitions") will create, incur,
assume or guarantee any Indebtedness (as defined below under "Certain
Definitions") unless immediately thereafter the aggregate amount of all
Indebtedness of Restricted Subsidiaries (excluding Indebtedness owed to the
Company or a Restricted Subsidiary, including any renewal or replacement
thereof) and the discounted present value of all net rentals payable under
leases covered by the covenant entitled "Limitation Upon Sale and Leaseback
Transactions" (and not expressly excluded therefrom) would not exceed 15% of
Consolidated Stockholders' Equity; provided, however, that, solely for purposes
of this covenant, Indebtedness shall not include indebtedness incurred in
connection with overdraft or similar facilities related to settlement, clearing
and related activities by a Restricted Subsidiary in the ordinary course of
business consistent with past practice to the extent that such indebtedness
remains outstanding for a period not to exceed 72 hours; and provided, further,
that any indebtedness of a Person (i) existing at the time such Person becomes a
Restricted Subsidiary or is merged with or into the Company or a Restricted
Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in
connection with the acquisition of all or a portion of the business of such
Person, shall not be deemed to be Indebtedness created, incurred, assumed
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or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness
of a Restricted Subsidiary for the purposes of this covenant.
EVENTS OF DEFAULT
Under the Indentures, "Event of Default" with respect to the Debt Securities
of any series means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body): (1) default in the payment of any interest upon any Debt Security or any
payment with respect to the Coupons, if any, of such series when it becomes due
and payable, and continuance of such default for a period of 30 days; (2)
default in the payment of the principal of (and premium, if any, on) any Debt
Security of such series at its Maturity; (3) default in the deposit of any
sinking fund payment, when and as due by the terms of a Debt Security of such
series; (4) default in the performance, or breach of any covenant or warranty in
the applicable Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in the applicable Indenture
specifically dealt with or which expressly has been included in the applicable
Indenture solely for the benefit of Debt Securities of a series other than such
series), and continuance of such default or breach for a period of 60 days after
there has been given to the Company by the applicable Trustee or to the Company
and the applicable Trustee by the Holders of at least 25% in principal amount of
the Outstanding Debt Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied; (5) in the case of the Senior
Indenture, default (i) in the payment of any scheduled principal of or interest
on any Indebtedness of the Company or any Subsidiary of the Company (other than
Senior Securities of such series), aggregating more than $10,000,000 in
principal amount, when due after giving effect to any applicable grace period or
(ii) in the performance of any other term or provision of any Indebtedness of
the Company or any Subsidiary of the Company (other than Senior Securities of
such series) in excess of $10,000,000 principal amount that results in such
Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such acceleration shall not
have been rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 15 days after there has been given to the Company
by the applicable Trustee or to the Company and the applicable Trustee by the
Holders of at least 25% in principal amount of the Outstanding Senior Securities
of such series, a written notice specifying such default or defaults; (6) in the
case of the Subordinated Indenture, default (i) in the payment of any scheduled
principal of or interest on any Indebtedness of the Company or any Subsidiary of
the Company (other than Subordinated Securities of such series), aggregating
more than $10,000,000 in principal amount at the final stated maturity thereof,
or (ii) in the performance of any term or provision of any Indebtedness of the
Company or any Subsidiary of the Company (other than Subordinated Securities of
such series) in excess of $10,000,000 principal amount, including, without
limitation, the payment of any principal of or interest on such Indebtedness
when due after giving effect to any applicable grace period, that results in
such Indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, and such acceleration shall
not have been rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 15 days after there has been given to the Company
by the applicable Trustee or to the Company and the applicable Trustee by the
Holders of at least 25% in principal amount of the Outstanding Subordinated
Securities of such series, a written notice specifying such default or defaults;
(7) in the case of the Senior Indenture, the entry against the Company or any
Subsidiary of the Company of one or more judgments, decrees or orders by a court
from which no appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $10,000,000, and the continuance
of such judgment, decree or order unsatisfied and in effect for any period of 45
consecutive days after the amount thereof is due without a stay of execution;
(8) certain events of bankruptcy, insolvency or reorganization with respect to
the Company; or (9) any other Event of Default provided with respect to Debt
Securities of that series pursuant to the applicable Indenture. (Section 5.01)
Each Indenture requires the Company to file with the applicable Trustee,
annually, an officer's certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. (Section 12.02) Each
Indenture provides that the applicable Trustee may withhold notice to the
Holders of a series of Debt Securities of any default (except payment defaults
on such Debt Securities) if it considers such withholding to be in the interest
of the Holders of such series of Debt Securities to do so. (Section 6.02)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then in every case the applicable
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the applicable Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due
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and payable. Upon payment of such amount in the currency in which such Debt
Securities are denominated (except as otherwise provided in the applicable
Indenture or the Prospectus Supplement), all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate. (Section 5.02)
Subject to the provisions of each Indenture relating to the duties of the
applicable Trustee, in case an Event of Default with respect to Debt Securities
of a particular series shall occur and be continuing, the applicable Trustee
shall be under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of any of the Holders of Debt
Securities of that series, unless such Holders shall have offered to the
applicable Trustee reasonable indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request.
(Section 6.03) Subject to such provisions for the indemnification of the
applicable Trustee, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the applicable Trustee under such Indenture, or exercising any trust or power
conferred on the applicable Trustee with respect to the Debt Securities of that
series. (Section 5.12)
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the applicable Trustee as provided
in the Indentures, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the applicable Trustee, may rescind and annul such declaration and its
consequences if (1) the Company has paid or deposited with the applicable
Trustee a sum in the currency in which such Debt Securities are denominated
(except as otherwise provided in the applicable Indenture or the Prospectus
Supplement) sufficient to pay (A) all overdue installments of interest on all
Debt Securities or all overdue payments with respect to any Coupons of such
series; (B) the principal of (and premium, if any, on) any Debt Securities of
such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
such Debt Securities; (C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security of such
series or upon overdue payments on any Coupons of such series at a rate
established for such series; and (D) all sums paid or advanced by the applicable
Trustee and the reasonable compensation, expenses, disbursements and advances of
the applicable Trustee, its agents and counsel; and (2) all Events of Default
with respect to Debt Securities of such series, other than the nonpayment of the
principal of Debt Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indentures. No such rescission and waiver will affect any subsequent default or
impair any right consequent thereon. (Section 5.02)
MERGER OR CONSOLIDATION
Each Indenture provides that the Company may not consolidate with or merge
into any other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless (1) the corporation
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety (the "successor
corporation") is a corporation organized and existing under the laws of the
United States or any State or the District of Columbia and expressly assumes by
a supplemental indenture the due and punctual payment of the principal of (and
premium, if any) and interest on all the Debt Securities and the performance of
every covenant of the Indentures on the part of the Company to be performed or
observed; (2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; (3) in the
case of the Senior Indenture, if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not otherwise be permitted by the Senior Indenture
without making effective provision whereby the Outstanding Senior Securities and
any other indebtedness of the Company then entitled thereto will be equally and
ratably secured with any and all indebtedness and obligations secured thereby,
the Company or such successor corporation or Person, as the case may be, will
take such steps as will be necessary effectively to secure all Senior Securities
equally and ratably with (or prior to) all indebtedness secured thereby; and (4)
the Company has delivered to the applicable Trustee an officers' certificate and
an opinion of counsel each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with the applicable
Indenture provisions and that all conditions precedent therein provided for
relating to such transaction have been complied with. (Section 10.01)
MODIFICATION OR WAIVER
Without the consent of any Holders, the Company and the applicable Trustee, at
any time and from time to time, may modify the applicable Indenture for any of
the following purposes: (1) to evidence the succession of another corporation to
the Company and the assumption by such successor of the covenants of the Company
in the Indentures and in the Debt Securities; (2) to add
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to the covenants of the Company, for the benefit of the Holders of all or any
series of Debt Securities and the Coupons, if any, appertaining thereto (and if
such covenants are to be for the benefit of less than all series, stating that
such covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power conferred in the Indentures upon the
Company; (3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such Events
of Default are expressly being included solely to be applicable to such series);
(4) to add or change any of the provisions of the applicable Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities of any series in bearer form, registrable or not registrable, and
with or without Coupons, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in exchange
for Bearer Securities of other authorized denominations or to permit the
issuance of Debt Securities of any series in uncertificated form, provided that
any such action shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related Coupons in any material respect; (5) to
change or eliminate any of the provisions of the applicable Indenture, provided
that any such change or elimination will become effective only when there is no
Outstanding Debt Security or Coupon of any series created prior to such
modification which is entitled to the benefit of such provision and as to which
such modification would apply; (6) to secure the Debt Securities; (7) to
supplement any of the provisions of the applicable Indenture to such extent as
is necessary to permit or facilitate the defeasance and discharge of any series
of Debt Securities, provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series or any other series
of Debt Securities or any related Coupons in any material respect; (8) to
establish the form or terms of Debt Securities and Coupons, if any, of any
series as permitted by the applicable Indenture; (9) to evidence and provide for
the acceptance of appointment thereunder by a successor Trustee with respect to
one or more series of Debt Securities and to add to or change any of the
provisions of the Indentures as is necessary to provide for or facilitate the
administration of the trusts thereunder by more than one Trustee; or (10) to
cure any ambiguity, to correct or supplement any provision therein which may be
defective or inconsistent with any other provision therein, or to make any other
provisions with respect to matters or questions arising under the applicable
Indenture which will not be inconsistent with any provision of the applicable
Indenture; provided such other provisions shall not adversely affect the
interests of the Holders of Outstanding Debt Securities or Coupons, if any, of
any series created prior to such modification in any material respect. (Section
11.01)
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of each series affected by such
modification voting separately, the Company and the applicable Trustee may
modify the applicable Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the applicable
Indenture or of modifying in any manner the rights of the Holders under the
applicable Indenture of such Debt Securities; provided, however, that no such
modification may, without the consent of the Holder of each Outstanding Debt
Security of each such series affected thereby, (1) change the Stated Maturity of
the principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption thereof, or change the Stated Maturity of or reduce the
amount of any payment to be made with respect to any Coupon, or change the
currency or currencies in which the principal of (and premium, if any) or
interest on such Debt Security is denominated or payable, or reduce the amount
of the principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof, or adversely affect the
right of repayment or repurchase, if any, at the option of the Holder, or reduce
the amount of, or postpone the date fixed for, any payment under any sinking
fund or analogous provisions for any Debt Security, or impair the right to
institute suit for the enforcement of any payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or limit the obligation of the Company to maintain a paying agency
outside the United States for payments on Bearer Securities, or adversely affect
the right to convert any Subordinated Security into shares of Common Stock as
may be set forth in the Prospectus Supplement; (2) reduce the percentage in
principal amount of the Outstanding Debt Securities of any series, the consent
of whose Holders is required for any supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain provisions
of the Indentures or certain defaults thereunder and their consequences provided
for in the Indentures; (3) modify any of the provisions of the applicable
Indenture relating to modifications and waivers of defaults and covenants,
except to increase any such percentage or to provide that certain other
provisions of the applicable Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debt Security of each series affected
thereby; or (4) in the case of the Subordinated Indenture, modify any of the
provisions relating to the subordination of the Subordinated Securities in a
manner adverse to the Holders thereof. (Section 11.02)
A modification which changes or eliminates any covenant or other provision of
the applicable Indenture with respect to one or more particular series of Debt
Securities and Coupons, if any, or which modifies the rights of the Holders of
Debt Securities and Coupons of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under the applicable
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series. (Section 11.02)
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In the case of the Subordinated Indenture, no modification may adversely
affect the rights of any holder of Senior Indebtedness under the subordination
provisions of the Subordinated Indenture without the consent of such holder.
(Section 11.08 of the Subordinated Indenture)
The Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all the Debt
Securities of any such series waive any past default under the applicable
Indenture with respect to such series and its consequences, except a default (1)
in the payment of the principal of (or premium, if any) or interest on any Debt
Security of such series, or in the payment of any sinking fund installment or
analogous obligation with respect to the Debt Securities of such series; or (2)
in respect of a covenant or provision hereof which pursuant to the second
paragraph under "Modification or Waiver" cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security of such series
affected. Upon any such waiver, such default will cease to exist, and any Event
of Default arising therefrom will be deemed to have been cured, for every
purpose of the Debt Securities of such series under the applicable Indenture,
but no such waiver will extend to any subsequent or other default or impair any
right consequent thereon. (Section 5.13)
The Company may omit in any particular instance to comply with certain
covenants in the Indentures (including, if so specified in the Prospectus
Supplement, any covenant not set forth in the Indentures but specified in the
Prospectus Supplement to be applicable to the Debt Securities of any series,
except as otherwise provided in the Prospectus Supplement, and in the case of
the Senior Indenture, the covenants relating to the limitation upon mortgages
and liens, the limitation upon sale and leaseback transactions and the
limitation on indebtedness of Restricted Subsidiaries) with respect to the Debt
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Debt Securities of
such series either waive such compliance in such instance or generally waive
compliance with such provisions, but no such waiver may extend to or affect any
term, provision or condition except to the extent expressly so waived, and,
until such waiver becomes effective, the obligations of the Company and the
duties of the applicable Trustee in respect of any such provision will remain in
full force and effect. (Section 12.09)
SUBORDINATION
Upon any distribution of assets of the Company upon the dissolution, winding
up, liquidation or reorganization of the Company, the payment of the principal
of (and premium, if any) and interest on the Subordinated Securities will be
subordinated to the extent provided in the Subordinated Indenture in right of
payment to the prior payment in full of all Senior Indebtedness (as defined
below under "Certain Definitions"), including Senior Securities (Sections
16.01 and 16.02 of the Subordinated Indenture), but the obligation of the
Company to make payment of principal (and premium, if any) or interest on the
Subordinated Securities will not otherwise be affected. (Section 16.02 of the
Subordinated Indenture) No payment on account of principal (or premium, if any),
sinking fund or interest may be made on the Subordinated Securities at any time
when there is a default in the payment of principal, premium, if any, sinking
fund or interest on Senior Indebtedness. (Section 16.03 of the Subordinated
Indenture) In the event that, notwithstanding the foregoing, any payment by the
Company described in the foregoing sentence is received by the Trustee under the
Subordinated Indenture or the Holders of any of the Subordinated Securities
before all Senior Indebtedness is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Indebtedness or on their behalf
for application to the payment of all such Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness. Subject to payment in full of Senior Indebtedness, the Holders of
the Subordinated Securities will be subrogated to the rights of the holders of
the Senior Indebtedness to the extent of payments made to the holders of such
Senior Indebtedness out of the distributive share of the Subordinated
Securities. (Section 16.02 of the Subordinated Indenture)
By reason of such subordination, in the event of a distribution of assets upon
insolvency, certain general creditors of the Company may recover more, ratably,
than Holders of the Subordinated Securities. The Subordinated Indenture provides
that the subordination provisions thereof shall not apply to money and
securities held in trusts pursuant to the satisfaction and discharge and the
legal defeasance provisions of the Subordinated Indenture. (Sections 4.02 and
15.02 of the Subordinated Indenture)
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Securities, the accompanying Prospectus Supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of a recent date.
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DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The applicable Indenture with respect to the Debt Securities of any series may
be discharged, subject to certain terms and conditions, when (1) either (A) all
Debt Securities and the Coupons, if any, of such series have been delivered to
the applicable Trustee for cancellation, or (B) all Debt Securities and the
Coupons, if any, of such series not theretofore delivered to the applicable
Trustee for cancellation (i) have become due and payable, (ii) will become due
and payable at their Stated Maturity within one year, or (iii) are to be called
for redemption within one year under arrangements satisfactory to the applicable
Trustee for the giving of notice by the applicable Trustee, and the Company, in
the case of (i), (ii) or (iii) of subclause (B), has irrevocably deposited or
caused to be deposited with the applicable Trustee as trust funds in trust for
such purpose an amount in the currency in which such Debt Securities are
denominated sufficient to pay and discharge the entire indebtedness on such Debt
Securities for principal (and premium, if any) and interest to the date of such
deposit (in the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be; provided, however,
in the event a petition for relief under any applicable Federal or state
bankruptcy, insolvency or other similar law is filed with respect to the Company
within 91 days after the deposit and the applicable Trustee is required to
return the deposited money to the Company, the obligations of the Company under
the applicable Indenture with respect to such Debt Securities will not be deemed
terminated or discharged; (2) the Company has paid or caused to be paid all
other sums payable under the applicable Indenture by the Company; (3) the
Company has delivered to the applicable Trustee an officers' certificate and an
opinion of counsel each stating that all conditions precedent therein provided
relating to the satisfaction and discharge of the applicable Indenture with
respect to such series have been complied with; and (4) the Company has
delivered to the applicable Trustee an opinion of counsel or a ruling of the
Internal Revenue Service to the effect that Holders of the Debt Securities of
the series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge. (Section 4.01)
If provision is made for the defeasance of Debt Securities of a series, and if
the Debt Securities of such series are Registered Securities and denominated and
payable only in U.S. dollars, then the provisions of each Indenture relating to
defeasance shall be applicable except as otherwise specified in the Prospectus
Supplement for Debt Securities of such series. Defeasance provisions, if any,
for Debt Securities denominated in a foreign currency or currencies or for
Bearer Securities may be specified in the Prospectus Supplement. (Section 15.01)
At the Company's option, either (a) the Company shall be deemed to have been
Discharged (as defined below under "Certain Definitions") from its obligations
with respect to Debt Securities of any series ("legal defeasance option") or
(b) the Company shall cease to be under any obligation to comply with certain
provisions of the Indentures relating to mergers and consolidations of the
Company, and in the case of the Senior Indenture, the provisions relating to
limitations upon mortgages and liens, limitations upon sale and leaseback
transactions and the limitation on indebtedness of Restricted Subsidiaries, with
respect to Debt Securities of any series (and, if so specified, any other
obligation of the Company or restrictive covenant added for the benefit of such
series) ("covenant defeasance option") at any time after the applicable
conditions set forth below have been satisfied: (1) the Company shall have
deposited or caused to be deposited irrevocably with the applicable Trustee as
trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Debt Securities of such series (i) money
in an amount, or (ii) U.S. Government Obligations (as defined below under
"Certain Definitions") which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect to (i) and
(ii)) of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the applicable
Trustee, to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest on, the
Outstanding Debt Securities of such series on the dates such installments of
interest or principal and premium are due; (2) such deposit shall not cause the
applicable Trustee with respect to the Debt Securities of that series to have a
conflicting interest with respect to the Debt Securities of any series; (3) such
deposit will not result in a breach or violation of, or constitute a default
under, the applicable Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound; (4) if the Debt Securities of
such series are then listed on any national securities exchange, the Company
shall have delivered to the applicable Trustee an opinion of counsel or a letter
or other document from such exchange to the effect that the Company's exercise
of its legal defeasance option or the covenant defeasance option, as the case
may be, would not cause such Debt Securities to be delisted; (5) no Event of
Default or event (including such deposit) which, with notice or lapse of time or
both, would become an Event of Default with respect to the Debt Securities of
such series shall have occurred and be continuing on the date of such deposit
and, with respect to the legal defeasance option only, no Event of Default under
the provisions of the Indentures relating to certain events of bankruptcy or
insolvency or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under such bankruptcy or insolvency provisions
shall have occurred and be continuing on the 91st day after such date; and (6)
the Company shall have delivered to the applicable Trustee an opinion of counsel
or a ruling of the Internal Revenue Service to the effect that the Holders of
the Debt
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Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under the provisions of the Indentures relating
to certain events of bankruptcy or insolvency or event which with the giving of
notice or lapse of time, or both, would become an Event of Default under such
bankruptcy or insolvency provisions shall have occurred and be continuing on the
91st day after the date of such deposit, the obligations of the Company referred
to under the definition of covenant defeasance option with respect to such Debt
Securities shall be reinstated. (Section 15.02)
PAYMENT AND PAYING AGENTS
If Debt Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such Debt Securities an
office or agency where such Debt Securities may be presented or surrendered for
payment, where such Debt Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of such Debt Securities and the applicable Indenture may be served. If
Debt Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City and State of New York, or, in
the case of the Senior Indenture, in Minneapolis, Minnesota, an office or agency
where any Registered Securities of such series may be presented or surrendered
for payment, where any Registered Securities of such series may be surrendered
for registration of transfer, where Debt Securities of such series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of such Debt Securities and the applicable Indenture may be served and
where Bearer Securities of such series and related Coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for such series which is located outside the
United States, an office or agency where such Debt Securities and related
Coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on such Debt Securities, if so provided in such
series); provided, however, that if such Debt Securities are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
such Debt Securities in London, Luxembourg or any other required city located
outside the United States, as the case may be, so long as such Debt Securities
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such Debt Securities located
outside the United States an office or agency where any Registered Securities of
such series may be surrendered for registration of transfer, where such Debt
Securities may be surrendered for exchange and where notices and demands to or
upon the Company in respect of such Debt Securities and the applicable Indenture
may be served. The Company will give prompt written notice to the applicable
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the applicable Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the corporate trust office of the applicable Trustee (in the case
of Registered Securities) and at the principal London office of the applicable
Trustee (in the case of Bearer Securities), and the Company has appointed the
applicable Trustee as its agent to receive all presentations, surrenders,
notices and demands. (Section 12.03)
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Debt Securities of a series are denominated and payable in U.S. dollars,
payment of principal of and any premium and interest on such Debt Securities, if
so provided in the Prospectus Supplement shall be made at the office of the
Company's Paying Agent in the Borough of Manhattan, the City and State of New
York, or, in the case of the Senior Indenture, in Minneapolis, Minnesota, if
(but only if) payment in U.S. dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with the applicable Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions. (Section 12.03)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depositary identified in
the Prospectus Supplement. Global securities may be issued in either registered
or bearer form and in either temporary or permanent form (each a "Global
Security"). Payments of principal of (premium, if any) and interest on Debt
Securities represented by a Global Security will be made by the Company to the
applicable Trustee and then by such Trustee to the depositary.
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The Company anticipates that any Global Securities will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York ("DTC"), that
such Global Securities will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depositary arrangements with respect
to any such Global Securities. Additional or differing terms of the depositary
arrangements will be described in the Prospectus Supplement relating to a
particular series of Debt Securities issued in the form of Global Securities.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole Holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or Holders thereof under the
applicable Indenture. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial interests in
a Global Security.
If DTC is at any time unwilling or unable to continue as depositary, or ceases
to be a clearing agency registered under the Exchange Act, and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue individual Debt Securities in certificated form in exchange for the Global
Securities. In addition, the Company may at any time, and in its sole
discretion, determine not to have any Debt Securities represented by one or more
Global Securities and, in such event, will issue individual Debt Securities in
certificated form in exchange for the relevant Global Securities. If Registered
Securities of any series shall have been issued in the form of one or more
Global Securities and if an Event of Default with respect to the Debt Securities
of such series shall have occurred and be continuing, the Company will issue
individual Debt Securities in certificated form in exchange for the relevant
Global Securities.
The following is based on information furnished by DTC:
DTC will act as securities depositary for Debt Securities represented by one
or more Global Securities. The Debt Securities will be issued as fully-
registered securities registered in the name of Cede & Co. (DTC's partnership
nominee). One fully-registered Global Security will be issued for each issue of
the Debt Securities, each in an aggregate principal amount of such issue, and
will be deposited with DTC. If, however, the aggregate principal amount of any
issue exceeds the maximum principal amount (if any) permitted by DTC, one Global
Security will be issued with respect to such maximum principal amount and an
additional Global Security will be issued with respect to any remaining
principal amount of such issue.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
("Direct Participants") include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. DTC is owned
by a number of its Direct Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to DTC's system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Debt Securities represented by one or more Global Securities
under DTC's system must be made by or through Direct Participants, which will
receive a credit for the Global Securities on DTC's records. The ownership
interest of each beneficial owner of each Global Security ("Beneficial Owner")
is in turn recorded on the Direct and Indirect Participants' records. A
Beneficial Owner will not receive written confirmation from DTC of its purchase,
but such Beneficial Owner is expected to receive a written confirmation
providing details of such transaction, as well as periodic statements of its
holdings, from the Direct or Indirect Participant through which such Beneficial
Owner entered into such transaction. Transfers of ownership interests in Global
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of the Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Global Securities, except
in the event that use of the book-entry system for one or more Global Securities
is discontinued.
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To facilitate subsequent transfers, all Global Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Global Securities with DTC and their registration in
the name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Debt Securities; DTC records
reflect only the identity of the Direct Participants to whose accounts Global
Securities are credited, which may or may not be the Beneficial Owners. The
Participants remain responsible for keeping account of their holdings on behalf
of their customers.
Delivery of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the Global
Securities. Under its usual procedures, DTC will mail (an ''Omnibus Proxy'') to
the issuer as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Principal and interest payments on the Global Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on the payable date. Payments
by Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in ''street name,'' and will be the
responsibility of such Participant and not of DTC, the Paying Agent or the
Company, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal and interest to DTC is the
responsibility of the Company or the Paying Agent, disbursement of such payments
to Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
A Beneficial Owner shall give notice to elect to have its Global Securities
purchased or tendered, through its Participant, to the Paying Agent, and shall
effect delivery of such Global Securities by causing the Direct Participant to
transfer the Participant's interest in the Global Securities, on DTC's records,
to the Paying Agent. The requirement for physical delivery of Global Securities
in connection with a demand for purchase or a mandatory purchase will be deemed
satisfied when the ownership rights in the Global Securities are transferred by
Direct Participants on DTC's records.
DTC may discontinue providing its services as securities depositary with
respect to the Debt Securities at any time by giving reasonable notice to the
Company or the Agents. Under such circumstances, in the event that a successor
securities depositary is not appointed within 90 days, certificates representing
Debt Securities will be printed and delivered in exchange for the Debt
Securities represented by the Global Securities held by DTC.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
certificates representing Debt Securities will be printed and delivered in
exchange for the Debt Securities represented by the Global Securities held by
DTC.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
None of the Company, any underwriter or agent, the applicable Trustee, any
applicable Paying Agent or the registrar of any Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security,
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
CONVERSION RIGHTS
The terms and conditions, if any, on which Subordinated Securities being
offered are convertible into Common Stock will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the conversion price, the
conversion period, provisions as to whether conversion will be at the option of
the Holder or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of such
Subordinated Securities.
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THE TRUSTEES UNDER THE INDENTURES
Norwest Bank Minnesota, National Association and The Bank of New York are two
of a number of banks with which the Company maintains ordinary banking
relationships and from which the Company has obtained credit facilities and
lines of credit.
CERTAIN DEFINITIONS
Set forth below is a summary of certain defined terms as used in the
applicable Indenture. Reference is made to the applicable Indenture for the full
definition of all such terms.
"Consolidated Stockholders' Equity," at any time, means the total
stockholders' equity of the Company and its consolidated subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principles, as of the end of the most recently completed fiscal
quarter of the Company for which financial information is then available.
(Section 1.01 of the Senior Indenture)
"Bearer Security" means any Debt Security (with or without Coupons), which
is payable to bearer and title to which passes by delivery only, but does not
include any coupons. (Section 1.01)
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
the applicable Indenture relating to the Debt Securities of such series, except
(i) the rights of Holders of Debt Securities of such series to receive, from the
trust fund described under "Discharge, Legal Defeasance and Covenant
Defeasance" above, payment of the principal of (and premium, if any) and
interest on such Debt Securities when such payments are due; (ii) the Company's
obligations with respect to the Debt Securities of such series under the
provisions relating to exchanges, transfers and replacement of Debt Securities,
the maintenance of an office or agency of the Company and the defeasance trust
fund; and (iii) the rights, powers, trusts, duties and immunities of the
applicable Trustee thereunder. (Section 15.02)
"Funded Debt" means any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed which would, in accordance with generally
accepted accounting practice, be classified as long-term debt, but in any event
including all indebtedness for money borrowed, whether secured or unsecured,
maturing more than one year or extendible at the option of the obligor to a date
more than one year, after the date of determination thereof (excluding any
amount thereof included in current liabilities). (Section 1.01 of the Senior
Indenture)
"Holder" means, with respect to a Registered Security, the Person in whose
name a Registered Security is registered in the Security Register, and with
respect to a Bearer Security or a Coupon, the bearer thereof. (Section 1.01)
"Indebtedness" means (i) any liability of any Person (a) for borrowed money,
or (b) evidenced by a bond, note, debenture or similar instrument (including
purchase money obligations but excluding trade payables), or (c) for the payment
of money relating to a lease that is required to be classified as a capitalized
lease obligation in accordance with generally accepted accounting principles, or
(d) preferred or preference stock of a Subsidiary of the Company held by Persons
other than the Company or a Subsidiary of the Company; (ii) any liability of
others described in the preceding clause (i) that the Person has guaranteed,
that is recourse to such Person or that is otherwise its legal liability; and
(iii) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above; provided, however, that "Indebtedness" shall not include any
liabilities of the kind included opposite the caption "Liabilities relating to
TRS financial instruments sold" on the Company's audited consolidated balance
sheet. (Section 1.01) These liabilities are currently included opposite the
caption "Settlement Obligations" on the Company's consolidated balance sheet.
"Maturity" when used with respect to any Debt Security means the date on
which the principal of a Debt Security or an installment of principal becomes
due and payable as provided therein or in the Indenture, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder or otherwise. (Section 1.01)
"Outstanding" when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under the applicable Indenture, except as provided in such Indenture.
(Section 1.01)
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"Principal Facility" means the real property, fixtures, machinery and
equipment relating to any facility owned by the Company or any Subsidiary,
except any facility that, in the opinion of the Board of Directors, is not of
material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole. (Section 1.01 of the Senior Indenture)
"Registered Securities" means any Debt Security in the form established
pursuant to Section 2.01 of the applicable Indenture which is registered as to
principal and Interest in the Security Register. (Section 1.01)
"Restricted Subsidiary," at any time, means any Subsidiary which has
revenues, determined on a consolidated basis (with its Subsidiaries) in
accordance with generally accepted accounting principles, equal to or exceeding
10 percent of the Company's consolidated revenues for the most recently
completed fiscal year of the Company for which financial information is then
available.
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) Indebtedness of the Company, whether outstanding on the
date of the Subordinated Indenture or thereafter created, incurred, assumed or
guaranteed, for money borrowed (other than the Indebtedness evidenced by the
Subordinated Securities), unless in the instrument creating or evidencing the
same or pursuant to which the same is outstanding it is provided that such
Indebtedness is not senior or prior in right of payment to the Subordinated
Securities or is pari passu or subordinate by its terms in right of payment to
the Subordinated Securities, and (ii) renewals, extensions and modifications of
any such Indebtedness.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation, irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency, is at the
time, directly or indirectly, owned or controlled by the Company or by one or
more Subsidiaries thereof, or by the Company and one or more Subsidiaries.
(Section 1.01)
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt. (Section 15.02)
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the outstanding
voting stock (other than directors' qualifying shares) is at the time, directly
or indirectly, owned by the Company, or by one or more Wholly-Owned Subsidiaries
of the Company or by the Company and one or more Wholly-Owned Subsidiaries.
(Section 1.01)
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the Company's authorized capital stock
consists of 600,000,000 shares of Common Stock and 10,000,000 shares of
Preferred Stock. As of March 17, 1997, approximately 448,954,370 shares of
Common Stock were issued and outstanding. No shares of Preferred Stock are
currently outstanding. The following summary description of the capital stock of
the Company does not purport to be complete and is qualified in its entirety by
reference to the Company's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation"), and to Delaware corporate law. See
"Available Information."
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared by the Board of Directors out of
funds legally available therefor, subject to any preferential dividend rights of
outstanding Preferred Stock and certain dividend limitations contained in the
Company's
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outstanding senior promissory notes. Upon the liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to receive
ratably the net assets of the Company available after the payment of all debts
and other liabilities and subject to the prior rights of any outstanding
Preferred Stock. Holders of Common Stock have no preemptive, subscription,
redemption or conversion rights. All outstanding shares of Common Stock are duly
authorized, validly issued, fully paid and nonassessable. The rights,
preferences and privileges of holders of Common Stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of
Preferred Stock which the Company may designate and issue in the future.
PREFERRED STOCK
Under the Certificate of Incorporation, the Company may issue, in one or more
classes or series, up to 10,000,000 shares of its Preferred Stock, with such
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions as shall be designated in
resolutions adopted by the Board of Directors or a duly authorized committee
thereof. The Preferred Stock will, when issued, be fully paid and nonassessable
and holders thereof will have no preemptive rights.
The specific terms of any Preferred Stock being offered (the "Offered
Preferred Stock") will be described in the Prospectus Supplement relating to
such Offered Preferred Stock. The following summaries of certain provisions of
the Preferred Stock are subject to, and are qualified in their entirety by
reference to, the Certificate of Incorporation and the Certificate of
Designation relating to the particular class or series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the Offered Preferred
Stock offered thereby for specific terms, including:
(1) The designation of such Preferred Stock.
(2) The number of shares of such Preferred Stock offered, the liquidation
preference per share and the initial offering price of such Preferred
Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock.
(4) The date from which dividends on such Preferred Stock shall accumulate, if
applicable.
(5) The procedures for any auction and remarketing, if any, of such Preferred
Stock.
(6) The provision of a sinking fund, if any, for such Preferred Stock.
(7) The provision for redemption, if applicable, of such Preferred Stock.
(8) Any listing of such Preferred Stock on any securities exchange.
(9) The terms and conditions, if applicable, upon which such Preferred Stock
will be convertible into or exchangeable for Common Stock, and whether at
the option of the holder thereof or the Company.
(10) Whether such Preferred Stock will rank senior or junior to or on a parity
with any other class or series of Preferred Stock.
(11) The voting rights, if any, of such Preferred Stock.
(12) Any other specific terms, preferences, rights, limitations or restrictions
of such Preferred Stock.
(13) A discussion of Federal income tax considerations applicable to such
Preferred Stock.
Subject to the Certificate of Incorporation and to any limitations
contained in then outstanding Preferred Stock, the Company may issue additional
classes or series of Preferred Stock, at any time or from time to time, with
such powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, as the Board of
Directors or any duly authorized committee thereof shall determine, all without
further action of the stockholders, including holders of then outstanding
Preferred Stock, of the Company.
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CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS
Certain provisions of the Certificate of Incorporation and By-laws of the
Company summarized below may be deemed to have an anti-takeover effect and may
delay, defer or prevent a tender offer or takeover attempt that a stockholder
might consider in its best interest, including those attempts that might result
in a premium over the market price for the shares held by stockholders.
The Certificate of Incorporation or By-laws provide (i) that there shall be
three classes of directors serving staggered terms; (ii) that directors can be
removed from office only for cause and only by the affirmative vote of the
holders of a majority of the then outstanding shares of common stock entitled to
vote generally in an election of directors; (iii) that vacancies on the Board of
Directors may be filled only by the remaining directors and not by the
stockholders; (iv) that the Board of Directors may adopt, amend or repeal the
By-laws of the Company; and (v) for an advance notice procedure for the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors as well as for other stockholder proposals
to be considered at annual meetings of stockholders. In general, notice of
intent to nominate a director or raise business at such meetings must be
received by the Company not less than 60 nor more than 90 days prior to the
anniversary of the previous year's annual meeting, and must contain certain
information concerning the person to be nominated or the matters to be brought
before the meeting and concerning the stockholder submitting the proposal. The
Certificate of Incorporation also provides that any action required or permitted
to be taken by the stockholders of the Company may be effected only at an annual
or special meeting of stockholders, and stockholder action by written consent in
lieu of a meeting is prohibited. The affirmative vote of the holders of more
than 80 percent of the voting power of the Voting Stock is required to alter,
amend or repeal, or adopt any provision inconsistent with, this provision. In
addition, special meetings of stockholders may be called only by the Chairman of
the Board, Chairman of the Executive Committee, the President or the Secretary
of the Company or any such officer at the request in writing of the Board of
Directors.
The foregoing summary is qualified in its entirety by reference to the
provisions of the Certificate of Incorporation and By-laws.
STATUTORY PROVISIONS
The Company has elected, pursuant to a provision of its Certificate of
Incorporation, not to be governed by Section 203 of the Delaware General
Corporation Law ("DGCL"). Section 203 of the DGCL prohibits certain
transactions between a Delaware corporation and an "interested stockholder,"
which is defined as a person who, together with any affiliates and/or associates
of such person, beneficially owns, directly or indirectly, 15 percent or more of
the outstanding voting shares of a Delaware corporation. This provision
prohibits certain business combinations (defined broadly to include mergers,
consolidations, sales or other dispositions of assets having an aggregate value
in excess of 10 percent of the consolidated assets of the corporation, and
certain transactions that would increase the interested stockholder's
proportionate share ownership in the corporation) between an interested
stockholder and a corporation for a period of three years after the date the
interested stockholder acquired its stock, unless (i) the business combination
is approved by the corporation's board of directors prior to the date the
interested stockholder acquired shares; (ii) the interested stockholder acquired
at least 85 percent of the voting stock of the corporation in the transaction in
which it became an interested stockholder; or (iii) the business combination is
approved by a majority of the board of directors and by the affirmative vote of
two-thirds of the votes entitled to be cast by disinterested stockholders at an
annual or special meeting. A Delaware corporation, pursuant to a provision in
its certificate of incorporation or by-laws, may choose not to be governed by
Section 203 of the DGCL in which case such election becomes effective one year
after its adoption.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is Norwest Bank
Minnesota, National Association.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United States: (i)
through underwriters or dealers; (ii) directly to a limited number of purchasers
or to a single purchaser; or (iii) through agents. The Prospectus Supplement
with respect to the Securities being offered (the "Offered Securities") will
set forth the terms of the offering of the Offered Securities, including the
name or names of any underwriters or agents, the purchase price of the Offered
Securities and net proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering
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price and any discounts or concessions allowed or reallowed or paid to dealers.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
underwriters. The underwriter or underwriters with respect to a particular
underwritten offering of Securities, or, if an underwriting syndicate is used,
the managing underwriter or underwriters, will be set forth on the cover of the
applicable Prospectus Supplement. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters to purchase the
Offered Securities will be subject to conditions precedent and the underwriters
will be obligated to purchase all of the Offered Securities if any are
purchased.
If dealers are utilized in the sale of Offered Securities in respect of which
this Prospectus is delivered, and if so specified in the applicable Prospectus
Supplement, the Company will sell such Offered Securities to the dealers as
principals. The dealers may then resell such Offered Securities to the public at
varying prices to be determined by such dealers at the time of resale. The names
of the dealers and the terms of the transaction will be set forth in the
applicable Prospectus Supplement.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Securities in respect to which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement.
Underwriters, dealers and agents may be entitled under agreements entered into
with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the underwriters, dealers or agents may be
required to make in respect thereof. Underwriters, dealers and agents may be
customers of, may engage in transactions with, or perform services for, the
Company in the ordinary course of business.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon for the
Company by Thomas A. Rossi, Esq., Associate General Counsel of the Company. Mr.
Rossi is the beneficial owner of Common Stock of the Company.
EXPERTS
The consolidated financial statements and schedule of the Company appearing in
the Company's Annual Report on Form 10-K for the year ended December 31, 1996
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference.
Such report of Ernst & Young LLP, as to the year ended December 31, 1994, is
based in part on the report of Deloitte & Touche LLP, independent auditors.
Such consolidated financial statements and schedule are, and audited financial
statements to be included in subsequently filed documents will be, incorporated
herein by reference in reliance upon the reports of such auditors pertaining to
such financial statements (to the extent covered by consents filed with the
Commission) given upon the authority of such firms as experts in accounting and
auditing.
-19-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
SEC registration fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee............................$227,273
Legal fees and expenses......................... 50,000
Printing and engraving.......................... 100,000
Fees of accountants............................. 5,000
Fees of trustees................................ 6,000
Blue sky fees and expenses...................... 20,000
Rating agency fees.............................. 125,000
Miscellaneous................................... 5,000
--------
$538,273
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such officer or director acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, and, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation in the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such
officer or director actually and reasonably incurred.
In accordance with the DGCL, the Restated Certificate of Incorporation of the
Company contains a provision to limit the personal liability of the directors of
the Company for violations of their fiduciary duty. This provision eliminates
each director's liability to the Company or its stockholders for monetary
damages except to the extent provided by the DGCL (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions, or (iv) for any transaction from which a director derived an
improper benefit. The effect of this provision is to eliminate the personal
liability of directors for monetary damages for actions involving a breach of
their fiduciary duty of care, including any such actions involving gross
negligence.
The Restated Certificate of Incorporation and the By-laws of the Company
provide for indemnification of the Company's officers and directors to the
fullest extent permitted by applicable law, except that the By-laws provide that
the Company is required to indemnify an officer or director in connection with a
proceeding initiated by such person only if the proceeding was authorized by the
Board of Directors of the Company. In addition, the Company maintains insurance
policies which provide coverage for its officers and directors in certain
situations where the Company cannot directly indemnify such officers or
directors.
ITEM 16. EXHIBITS.
A list of exhibits included as part of this Registration Statements is set
forth in the Exhibit Index appearing elsewhere herein and is incorporated herein
by reference.
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
S-2
<PAGE>
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed to be
the initial bona fide offering thereof.
S-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hackensack, State of New Jersey, on April 7, 1997.
FIRST DATA CORPORATION
By:/s/ HENRY C. DUQUES
------------------------------
Henry C. Duques
Chairman of the Board
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints David P. Bailis and Thomas A. Rossi,
and each or any of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ HENRY C. DUQUES Chairman of the Board and April 7, 1997
- ------------------------------ Chief Executive Officer
Henry C. Duques
/s/ LEE ADREAN Executive Vice President and April 7, 1997
- ------------------------------ Chief Financial Officer
Lee Adrean (Principal Financial Officer)
/s/ RICHARD MACCHIA Senior Vice President - Finance April 7, 1997
- ------------------------------ (Principal Accounting Officer)
Richard Macchia
/s/ BEN BURDETSKY Director April 7, 1997
- ------------------------------
Ben Burdetsky
/s/ COURTNEY F. JONES Director April 7, 1997
- ------------------------------
Courtney F. Jones
/s/ ROBERT J. LEVENSON Director April 7, 1997
- ------------------------------
Robert J. Levenson
/s/ JAMES D. ROBINSON III Director April 7, 1997
- ------------------------------
James D. Robinson III
/s/ CHARLES T. RUSSELL Director April 7, 1997
- ------------------------------
Charles T. Russell
</TABLE>
S-4
<PAGE>
/s/ BERNARD L. SCHWARTZ Director April 7, 1997
- ------------------------------
Bernard L. Schwartz
/s/ GAREN K. STAGLIN Director April 7, 1997
- ------------------------------
Garen K. Staglin
S-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
- ------
1.1 Form of Underwriting Agreement.
1.2 Form of Distribution Agreement for Senior Debt Securities.
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Commission File No. 1-11073, Exhibit 3
to the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995).
4.2 By-laws of the Company (incorporated by reference to Commission File No.
1-11073, Exhibit 3(ii) of the Company's Annual Report on Form 10-K for
the year ended December 31, 1995).
4.3 Indenture dated as of March 26, 1993 between the Company and Norwest Bank
Minnesota, National Association, as trustee, relating to the Senior Debt
Securities (incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-3 (Registration No. 33-74568)).
4.4 Indenture dated as of April 1, 1996 between the Company and The Bank of
New York, as trustee, relating to the Subordinated Securities
(incorporated by reference to Exhibit 4.4 to the Company's Registration
Statement on Form S-3 (Registration No. 333-4012)).
4.5 Form of Fixed Rate Note.
4.6 Form of Floating Rate Note.
5 Opinion of Thomas A. Rossi, Esq., Associate General Counsel to the
Company.
12 Statement of Calculation of Ratio of Earnings to Fixed Charges
(incorporated by reference to Commission File No. 1-11073, Annual
Report on Form 10-K for the year ended December 31, 1996, Exhibit
12).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Thomas A. Rossi, Esq. (included in Exhibit 5).
24 Powers of Attorney (included in the signature page of this Registration
Statement).
25.1 Statement of Eligibility of Norwest Bank Minnesota, National Association
under the Trust Indenture Act of 1939 on Form T-1 relating to the Senior
Indenture.
25.2 Statement of Eligibility of The Bank of New York under the Trust
Indenture Act of 1939 on Form T-1 relating to the Subordinated Indenture.
<PAGE>
Exhibit 1.1
FIRST DATA CORPORATION
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
__________, 1997
1. Introductory. First Data Corporation, a Delaware corporation (the
------------
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (the "Option
Securities"). Debt Securities will be issued under one or more indentures (as
amended or supplemented from time to time, an "Indenture" and collectively, the
"Indentures"), more particularly described in a Terms Agreement, between the
Company and the trustees named therein (the "Trustee(s)"), in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of sale.
The preferred stock will be issued in one or more series, which series may vary
as to voting rights, dividends, optional and mandatory redemption provisions,
liquidation preference and conversion provisions and other terms, with all such
terms for any particular series or issue of the preferred stock being determined
at the time of sale. The Registered Securities will be sold pursuant to a Terms
Agreement, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (together with the Option Securities) involved in
any such offering are hereinafter referred to as the "Securities." The firm or
firms which agree to purchase the Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents
and warrants as of the date of this Agreement as follows:
(a) A registration statement on Form S-3 (File No. 333-______) with
respect to the Registered Securities has (i) been prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and (ii) been filed with the Commission under the
Securities Act. Such registration statement has become effective under the
Securities Act. If any post-effective amendment to such registration
statement has been filed with the Commission prior to the date of the
applicable Terms Agreement, the most recent such amendment has been
declared effective by the Commission. Copies of such registration statement
and any amendments thereto have been delivered by the Company to the
Representatives. As used in this Agreement, "Effective Time" means the
respective date and time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was declared
effective by the Commission; and "Effective Date" means the respective
applicable date of the Effective Time. As provided in Section 4(a), a
prospectus supplement relating to the Securities, the terms of the offering
thereof and the other matters set forth therein has been prepared and will
be filed pursuant to Rule 424 under the Securities Act. In addition, a
preliminary prospectus supplement reflecting the terms of the Securities,
the terms of the offering thereof, and the other matters set forth therein
also may be prepared and filed pursuant to Rule 424 under the Securities
Act. Such prospectus supplement, in the form filed on or after the date of
this Agreement pursuant to Rule 424, is referred to in this Agreement as
the "Prospectus Supplement", and any such preliminary prospectus supplement
in the form filed after the date of this Agreement pursuant to Rule 424 is
referred to as the "Preliminary Prospectus Supplement." Any prospectus
accompanied by a Preliminary Prospectus Supplement is referred to in this
Agreement, collectively with such Preliminary Prospectus Supplement, as a
"Preliminary Prospectus." The registration statement referred to in this
Section 2(a), as amended at the time of the
<PAGE>
Terms Agreement, including the exhibits thereto (but excluding the
Statement of Qualification and Eligibility ("Form T-1")) and the documents
filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents") and the information, if any,
deemed to be a part of the registration statement pursuant to Rule 430A(b)
under the Securities Act, is called the "Registration Statement"; and the
basic prospectus included therein relating to all offerings of securities
under the Registration Statement, as supplemented by the Prospectus
Supplement, is called the "Prospectus", except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either
case including the Incorporated Documents. Notwithstanding the foregoing,
any prospectus supplement prepared or filed with respect to an offering
pursuant to the Registration Statement of securities other than the
Securities shall not be deemed to have supplemented the Prospectus. The
Commission has not issued any order suspending the effectiveness of the
Registration Statement, and no stop order has been initiated or threatened
by the Commission.
(b) On the Effective Date, the Registration Statement conformed in all
material respects to the requirements of the Securities Act and the Rules
and Regulations, and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and on the date of the
applicable Terms Agreement, and at the time of filing of the Prospectus
pursuant to Rule 424(b), the Prospectus will conform in all material
respects to the requirements of the Securities Act and the Rules and
Regulations, and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and on the Effective Date and the Closing Date, respectively,
the Indenture, if any, described in the Terms Agreement conformed and will
conform in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
applicable rules and regulations thereunder; provided that no
representation or warranty is made as to (i) information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein or (ii) that part of the Registration Statement which
shall constitute the Form T-1 under the Trust Indenture Act.
(c) The Company and each of its subsidiaries (as defined in Rule 405 of
the Rules and Regulations) have been duly incorporated and are validly
existing as corporations in good standing under the general corporation
laws of their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification and
in which the failure to be so incorporated, existing or qualified would
reasonably be expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, and have
all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged; and
none of the subsidiaries of the Company, other than those so identified in
the Terms Agreement, is a "significant subsidiary," as such term is defined
in Rule 405 of the Rules and Regulations.
(d) All of the issued shares of capital stock of each significant
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid, non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims.
(e) The execution, delivery and performance of the Terms Agreement
(including the provisions of this Agreement) by the Company and the
consummation of the transactions contemplated hereby and thereby and
compliance by the Company with the provisions of the Indenture, if any,
described in the Terms Agreement and the Securities will not result in a
breach or violation of any of
<PAGE>
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its significant subsidiaries is a party or by
which the Company or any of its significant subsidiaries is bound or to
which any of the property or assets of the Company or any of its
significant subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of its significant subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its significant subsidiaries or any of their
properties or assets; and except for the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Trust
Indenture Act or the Exchange Act, and applicable state or foreign
securities laws in connection with the offer, sale and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
the Terms Agreement (including the provisions of this Agreement) by the
Company and the consummation of the transactions contemplated hereby and
thereby or compliance by the Company with the provisions of the Indenture,
if any, described in the Terms Agreement.
(f) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to include any securities owned or to be owned by such person in
the securities registered pursuant to the Registration Statement, or,
except as described in the Prospectus or Schedule B to the Terms Agreement
(or in Schedule B to any applicable Officers' Certificate delivered
pursuant to Section 6(g)), to require the Company to file any other
registration statement under the Securities Act (other than a registration
statement on Form S-8) with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(g) The Indenture, if any, described in the Terms Agreement has been
duly authorized, executed and delivered by the Company and (assuming the
due authorization, execution and delivery thereof by the Trustee under the
Indenture) constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms; the
Debt Securities, if any, described in the Terms Agreement have been duly
authorized by the Company and, when the terms of the Debt Securities and of
their issuance and sale have been duly established in accordance with the
Indenture, this Agreement and the Terms Agreement and the Debt Securities
have been duly executed, authenticated, issued and delivered in the manner
provided in the Indenture and paid for in accordance with this Agreement
and the Terms Agreement, the Debt Securities will be duly and validly
issued and delivered by the Company and will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture;
if any Securities to be issued are convertible, the shares of common stock
issuable upon conversion thereof have been duly authorized by the Company,
have been duly reserved for issuance upon conversion of the Securities and,
when issued upon the conversion of the Securities, will be duly and validly
issued, fully paid and non-assessable; the common stock and preferred
stock, if any, described in the Terms Agreement have been duly authorized
by the Company and, when issued and paid for pursuant to the Terms
Agreement, will be duly and validly issued, fully paid and non-assessable;
no further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of the
Securities as contemplated herein or the issuance of the shares of common
stock upon conversion of the Securities; and the Securities, the Indenture,
if any, described in the Terms Agreement and the capital stock of the
Company will conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(h) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, which would
<PAGE>
reasonably be expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus; and, since such date,
there has not been any material change in the capital stock or long-term
debt of the Company or any of its subsidiaries (otherwise than as set forth
or contemplated in the Prospectus) or any material adverse change in or
affecting, or any adverse development which materially affects, the
business, properties, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
stated therein.
(j) Ernst & Young LLP, or such other independent accountants acceptable
to the Representatives, who have certified certain financial statements of
the Company and whose report appears or is incorporated by reference in the
Prospectus, are independent public accountants as required by the
Securities Act and the Rules and Regulations during the periods covered by
the financial statements on which they reported contained in the
Prospectus.
(k) The Company has no reason to believe that the Company and each of
its subsidiaries do not own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses in the
manner described in the Prospectus and have no reason to believe that the
conduct of their respective businesses will conflict with any such rights
of others, and have not received any notice of any claims of conflict with
any such rights of others, which claims are reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which are reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and to the actual knowledge of the Company,
no such proceedings are threatened by governmental authorities or by
others.
(m) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been filed as exhibits to the
Registration Statement.
(n) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus and which is not so described.
(o) Except as described in the Prospectus or Schedule C to the Terms
Agreement (or in Schedule C to any applicable Officers' Certificate
delivered pursuant to Section 6(g)), since the date as of which information
is given in the Prospectus, the Company has not (i) issued or granted any
rights to acquire any securities (other than pursuant to employee benefit
plans or other compensation plans existing on the date of the Terms
Agreement) or (ii) declared or paid any dividend on its capital stock other
than regular quarterly cash dividends.
<PAGE>
(p) Neither the Company nor any of its subsidiaries, respectively, (i)
is in violation of its charter or by-laws, (ii) is in default, and no event
has occurred which, with notice or lapse of time or both, would constitute
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or
(iii) is in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business except, in the case of clauses
(ii) and (iii), for those defaults, violations or failures which, either
individually or in the aggregate, are not reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(q) The Company is not required to be registered, and is not regulated,
as an "investment company" as such term is defined under the United States
Investment Company Act of 1940.
3. Purchase and Offering of the Securities by the Underwriters. The
obligation of the Underwriters to purchase the Securities will be evidenced by
an exchange of a telegram, telex or other written communications ("Terms
Agreement") at each time the Company determines to sell the Securities. Each
Terms Agreement will be in the form of Annex II (A) or (B) attached hereto and
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the amount to be purchased by
each Underwriter, the purchase price to be paid by the Underwriters and certain
terms of the Securities and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date being herein and in the Terms Agreement referred to
as the "Closing Date"), the place of delivery and payment and any details of the
terms of public offering that should be reflected in the Prospectus Supplement
relating to the offering of the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is understood that
the Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. Debt Securities, if any, delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions set forth in this Agreement, the Company grants an option to the
several Underwriters to purchase, severally and not jointly, up to that amount
of the Option Securities as shall be specified in the Terms Agreement from the
Company at the same price as the Underwriters shall pay for the Registered
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Registered Securities by the Underwriters and may be exercised in
whole or in part at any time on or before the thirtieth day after the date of
the Terms Agreement upon written or telegraphic notice by the Representatives to
the Company setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
amount of the Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Registered Securities, as adjusted by the
Representatives in such manner as the Representatives deem advisable to avoid
fractional shares/units.
If the Terms Agreement provides for sales of Securities pursuant to delayed
delivery contracts, the Company authorizes the Underwriters to solicit offers to
purchase Securities pursuant to delayed delivery contracts substantially in the
form of Annex I attached hereto ("Delayed Delivery Contract") with such changes
therein as the Company may authorize or approve. Delayed Delivery Contracts are
to be made only with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies and educational
and charitable institutions. On the Closing Date the Company will pay, as
compensation, to the Representatives for the accounts of the Underwriters, the
fee set forth in such Terms Agreement in respect of the amount of Securities to
be sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract
<PAGE>
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate amount of Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the amount of Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Representatives determine that such reduction shall be
otherwise than pro rata and so advise the Company. The Company will advise the
Representatives not later than the business day prior to the Closing Date of the
amount of Contract Securities.
4. Covenants of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus, including the Prospectus Supplement, pursuant
to Rule 424(b) within the time period prescribed by the Rules and
Regulations; to notify the Representatives, promptly after it receives
notice, of the time when the Registration Statement or any amendment thereto
becomes effective or promptly after the filing of any supplement or
amendment to the Prospectus (other than any Incorporated Document or any
amendment or supplement relating to an offering of securities other than the
Securities) and to furnish the Representatives with copies thereof; to
notify the Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus,
the Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as are reasonably
requested;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may be required by the Securities Act, in the reasonable judgment of
the Company or the Representatives, or requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations (other than any
Incorporated Document or any amendment or supplement relating to an offering
of securities other than the Securities), to furnish a copy thereof to the
Representatives and counsel for the Underwriters;
(f) As soon as practicable but no later than 16 months after the date
of each Terms Agreement, to make generally available to its security holders
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158) covering a period of at least twelve
months beginning on the first day of the first fiscal quarter of the Company
commencing after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the
date of such Terms Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of
such Terms Agreement;
(g) During the period, if any, specified in the Terms Agreement after
the date of such Terms Agreement, to furnish to the Representatives copies
of all materials furnished by the Company to its
<PAGE>
stockholders and all public reports and financial statements furnished by
the Company to the principal national securities exchange upon which the
common stock of the Company may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time, to take such action as the
Representatives reasonably may request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities;
provided, however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject; and
(i) For the period specified in the Terms Agreement, to not, (A) in the
event of an offering of common stock, preferred stock or convertible debt
securities, (i) offer for sale, sell or otherwise dispose of, directly or
indirectly, any shares of common stock of the Company or permit the
registration under the Securities Act of any shares of common stock of the
Company (other than the Securities and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation
plans), (ii) sell or grant options, rights or warrants with respect to any
shares of common stock of the Company (other than the Securities and the
grant of options pursuant to employee benefit plans), or (iii) offer for
sale, sell or otherwise dispose of, directly or indirectly, any securities
convertible into or, exchangeable or exercisable for common stock of the
Company (other than the Securities), without, in any case, the prior
written consent of a majority of the Representatives; provided, however,
the Company may, without such consent, offer and sell shares of common
stock of the Company in transactions exempt from the registration
requirements of the Securities Act, provided that the purchasers in such
transactions are prohibited from offering for sale, selling or otherwise
disposing of, directly or indirectly, any of the shares of common stock of
the Company so acquired by them for the remainder of the period specified
in the Terms Agreement and, (B) in the event of an offering of Debt
Securities, between the date of the Terms Agreement and the date of
delivery of the Debt Securities, offer for sale, sell or cause to be
offered for sale or sold, without the prior written consent of a majority
of the Representatives, any debt securities which are substantially similar
to the Securities.
5. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any Incorporated Documents, all as provided in this Agreement;
(d) the costs of reproducing and distributing this Agreement; (e) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities, if necessary;
(f) any applicable stock exchange listing or other fees; (g) the fees and
expenses of filings, if any, with foreign securities administrators and of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(h) and of preparing, reproducing and distributing a
Blue Sky Memorandum (including related fees (in an amount not to exceed $10,000)
and disbursements of counsel to the Underwriters); (h) the fees paid to rating
agencies in connection with the rating of the Securities; (i) the costs of
printing and issuance of certificates, if any; (j) reasonable fees and
disbursements of the Trustee and any transfer agent; and (k) all other
reasonable costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided that except as provided in this
Section 5 and in Section 10, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Securities made by the Underwriters, and the Company shall pay
the fees and expenses of its counsel and any transfer taxes payable in
connection with its sale of Securities to the Underwriters.
<PAGE>
6. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and at the
time of delivery of any Securities pursuant to a Terms Agreement, of the
representations and warranties of the Company contained in this Agreement, to
the performance by the Company of its obligations under this Agreement, and to
each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act within
the applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 4(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of the counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Terms Agreement,
the Indenture, if any, described in the Terms Agreement, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Terms Agreement and the transactions
contemplated hereby and thereby shall be satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the
Company satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed
to the Underwriters and dated the Closing Date, and, if Option Securities
are purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
acceptable to the Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement has been
duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act, and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms;
(ii) The Debt Securities, if any, described in the Terms Agreement
have been duly authorized by the Company, and when the Debt Securities
have been duly executed, authenticated, issued and delivered in the
manner provided in the Indenture and paid for in accordance with this
Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, the Debt
Securities will be duly and validly issued and delivered by the Company
and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms
and entitled to the benefits of the Indenture;
(iii) If any Securities to be issued are convertible into common
stock, the shares of common stock initially issuable upon conversion of
the Securities have been reserved for issuance upon such conversion;
and when certificates therefor have been duly executed, countersigned,
registered and delivered upon such conversion, will constitute shares
of common stock which have been duly authorized and validly issued and
are fully paid and non-assessable;
(iv) The common stock and preferred stock, if any, described in the
Terms Agreement; when certificates therefor have been duly executed,
countersigned, registered and delivered in accordance with this
Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, constitute
shares of common stock or preferred stock, as the case may be, which
have been duly authorized and validly issued and are fully paid and
non-assessable;
<PAGE>
(v) The Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion; any required
filing of the Prospectus pursuant to Rule 424(b) of the Rules and
Regulations has been made within the time period prescribed by the
Rules and Regulations; and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding for
that purpose is pending or threatened by the Commission;
(vi) At the Effective Time, the Registration Statement (including
all documents incorporated by reference therein) complied, and on the
date of the Terms Agreement, the Prospectus (including all documents
incorporated by reference therein) complies, and any further amendments
or supplements thereto made by the Company on or prior to the date of
such opinion comply (other than, in each case, the financial statements
and related schedules and other financial and statistical data included
or incorporated by reference therein and the Form T-1 under the Trust
Indenture Act, as to which such counsel need express no opinion) as to
form in all material respects with the requirements of the Securities
Act the Exchange Act and the applicable rules and regulations under
said Acts;
(vii) The Securities, other than any Contract Securities, the
Indenture and the capital stock of the Company conform, and any
Contract Securities, when issued, delivered and sold, will conform, in
all material respects to the descriptions thereof contained or
incorporated by reference in the Registration Statement and the
Prospectus; and the provisions of the contracts, agreements and
instruments (as the same may be in effect on the Closing Date)
summarized in the Prospectus, any supplement thereto or any document
incorporated by reference therein, conform in all material respects to
the descriptions thereof in the Prospectus, any supplement thereto or
any document incorporated by reference therein;
(viii) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been so filed.
(ix) The Terms Agreement, this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
(x) The sale of the Securities by the Company, compliance by the
Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement, any
Delayed Delivery Contracts and the Securities and the consummation by
the Company of the transactions contemplated hereby and thereby will
not result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any agreement or instrument
scheduled in such opinion (as in effect on the date of such opinion);
and, except for the registration of the Securities under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Trust Indenture Act, the
Exchange Act and applicable state or foreign securities laws in
connection with the offer and sale of the Securities by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any court or any governmental agency or
body is required for the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby; and
(xi) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under the
United States Investment Company Act of 1940.
In addition, such counsel shall state that in the course of the preparation of
the Registration Statement and the Prospectus, such counsel has considered the
information set forth therein in light of the matters required to be set forth
therein and such counsel has participated in conferences with officers and
representatives of the Company, including its independent public accountants
and, with respect to the Prospectus, representatives of and counsel for the
Representatives during the course of which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although such
counsel shall not have independently checked the accuracy or completeness of, or
otherwise verified, and accordingly are not passing upon, and shall not assume
responsibility for, the accuracy, completeness or fairness of the statements
contained in or incorporated
<PAGE>
by reference in the Registration Statement and Prospectus (except as set forth
in subparagraph (vii) above), and that such counsel has relied as to
materiality, to a large extent, upon the judgment of officers and
representatives of the Company, as a result of such consideration and
participation, nothing has come to the attention of such counsel which causes
such counsel to believe that the Registration Statement, as of the Effective
Time or, if later, as of the date of the Company's most recent filing of an
Annual Report on Form 10-K (including such Annual Report on Form 10-K),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of the date of such opinion, includes
an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that, in each
case, such counsel need not express any belief as to the financial statements
and related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (i) state that their opinion is
limited to the federal laws of the United States, the laws of the State of New
York and the General Corporation Law of the State of Delaware, (ii) rely as to
matters of fact upon the representations contained in this Agreement and the
certificates of officers of the Company and it subsidiaries and of public
officials; provided that such counsel shall furnish copies thereof to the
Representatives and state that they believe that the Underwriters and they are
justified in relying upon such certificates and (iii) state that their opinions
set forth in subparagraphs (i) and (ii) above are subject to the qualification
that the enforceability of the Company's obligations under the Indenture and the
Securities may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) or by an implied covenant of good faith and
fair dealing.
(e) The General Counsel or other counsel of the Company, shall have
furnished to the Representatives his written opinion, addressed to the
Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms Agreement,
additional opinions from such counsel, in form and substance satisfactory to the
Representatives to the effect that:
(i) The Company and each of its significant subsidiaries (as defined in
Rule 405 under the Securities Act and identified in the Terms Agreement)
have been duly incorporated and are validly existing as corporations in
good standing under the general corporation laws of their respective
jurisdictions of incorporation and have all corporate power and authority
necessary to own or hold their respective properties and conduct the
businesses in which they are engaged;
(ii) All of the issued shares of capital stock of each significant
subsidiary have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for directors' qualifying shares) owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which are reasonably expected to have a material adverse effect
on the business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
and, to such counsel's knowledge, no such proceedings are threatened by
governmental authorities or by others;
(iv) The sale of the Securities by the Company and the compliance by
the Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement, any
Delayed Delivery Contract and the Securities, and the consummation of the
transactions contemplated hereby and thereby will not result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of
<PAGE>
the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any significant subsidiary or of
any statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties or assets (except
that such counsel need express no opinion with respect to applicable state
or foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any
significant subsidiary (A) is in violation of its charter or by-laws, (B)
is in default, and no event has occurred, which, with notice or lapse of
time or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (C) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business except, in the case of clauses (B) and (C), for those defaults,
violations or failures which, either individually or in the aggregate, are
not reasonably expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to include any securities owned or to be owned
by such person in the securities registered pursuant to the Registration
Statement, or, except as described in the Prospectus or Schedule B to the
Terms Agreement, to require the Company to file any other registration
statement under the Securities Act (other than a registration statement on
Form S-8) with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities
in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
In rendering such opinion, such counsel may (i) state that his opinion is
limited to the federal laws of the United States, the laws of the State of
Nebraska and the General Corporation Law of the State of Delaware and (ii) rely
as to matters of fact upon certificates of officers of the Company and its
subsidiaries and of public officials; provided that such counsel shall furnish
copies thereof to the Representatives and state that he believes that the
Underwriters and such counsel are justified in relying upon such certificates.
(f) The Company shall have furnished to the Representatives on the Closing
Date a letter of Ernst & Young LLP, addressed jointly to the Company and the
Underwriters and dated the Closing Date of the type described in the American
Institute of Certified Public Accountants' Statement on Auditing Standards No.
72, and covering such additional financial statement items and procedures
(including a review of interim financial statements specified in the American
Institute of Certified Public Accountants' Statement on Auditing Standards No.
71) as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate,
dated the Closing Date, and on any later date, if any, on which Option
Securities are purchased, of its Chief Financial Officer or Treasurer and its
General Counsel or other counsel stating that:
(i) The representations and warranties of the Company in Section 2 of
this Agreement are true and correct as of such date; the Company has
performed all of its agreements contained in this Agreement which are
required to be performed on or before the date of such certificate and the
conditions set forth in subsections 6(h) and (j) of this Agreement have
been fulfilled; and no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and
<PAGE>
(ii) They have examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement did not contain an untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, as of the date of such certificate, the Prospectus
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement or Prospectus which has not been set forth in
such a supplement or amendment.
(h)(i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (i) since such date there shall not
have been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Prospectus or in a supplement thereto) or any change in
or affecting, or any adverse development which affects, the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of
the Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered on the Closing Date on the terms and in the
manner contemplated herein or in the Prospectus or in a supplement thereto.
(i) Subsequent to the execution and delivery of the Terms Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. (the "NYSE"), the
American Stock Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred a
material adverse change in general economic, political or financial
conditions the result of which, in the case of each of clauses (i)-(iv),
makes it (or, in the case of clause (iv), the effect of international
conditions on the financial markets in the United States shall be such
that), in the judgment of the Representatives, impracticable or inadvisable
to proceed with the delivery of the Securities.
(j) Subsequent to the execution and delivery of the Terms Agreement,
(i) no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the
<PAGE>
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) 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 shall reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by that
Underwriter or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein; and provided further,
that as to any Preliminary Prospectus or supplement thereto this indemnity
agreement shall not inure to the benefit of any Underwriter or any person
controlling that Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Securities to any person by that Underwriter if
that Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus or supplement thereto was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section
4(c). For purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
Preliminary Prospectus or supplement thereto or the Prospectus to any person
other than a person to whom such Underwriter has delivered such incorporated
documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter or to any controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors (including any person who,
with his or her consent, is named in the Registration Statement as about to
become a director of the Company), each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) 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, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person
in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any
such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 7, the indemnified party shall notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against
an indemnified party, and the indemnified party shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that the Representatives shall have the right to employ counsel to
represent jointly the Representatives and those other Underwriters and
their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 7, if, in the
reasonable
<PAGE>
judgment of the Representatives, if there are legal defenses available to them
which are different from or in addition to those available to such indemnifying
party (it being understood that the Company shall not, in connection with any
one such claim or action or separate but substantially similar or related claims
or actions in the same jurisdiction arising out of the same allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (other than local counsel which shall be engaged only
for purposes of appearing with such counsel in such jurisdictions in which such
firm of attorneys is not licensed to practice)), and in that event the fees and
expenses of such separate counsel shall be paid by the Company. Anything in this
Section 7(c) to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without its written
consent.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein (other than by reason of
the failure to give notice, as provided in the first sentence of Section 7(c)),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to in this Section 7(d). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the statements with respect to
the public offering of the Securities set forth on the cover page of, and under
the caption "Underwriting" in, the Prospectus are correct and constitute the
only information furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
(f) The agreements contained in Sections 4(f), 4(g), 5 and this Section 7
and the representations and warranties of the Company in Section 2 (as made as
of the date of this Agreement) shall survive the delivery of the Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of the Terms Agreement incorporating the terms of this Agreement or
any investigation made by or on behalf of any indemnified party.
8. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under a Terms Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the number of shares or principal
<PAGE>
amount of Securities set opposite the name of each remaining non-defaulting
Underwriter in Schedule A to the Terms Agreement bears to the total number of
shares or principal amount of the Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule A to the Terms Agreement;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Securities on the Closing Date if the aggregate number
of shares or principal amount of the Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares or principal amount of the Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares or principal amount of Securities set forth opposite its
name on Schedule A to the Terms Agreement. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Securities. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
number of shares or principal amount which the defaulting Underwriter or
Underwriters agreed but failed to purchase, the Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or any supplement thereto or in any other document or arrangement.
9. Effective Date and Termination. The obligations of the Underwriters
under the Terms Agreement may be terminated by the Representatives by notice
given to and received by the Company prior to delivery of any payment for the
Securities if, prior to that time, the events described in any of Section 6(h),
6(i) or 6(j) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the Company shall fail
to tender the Securities for delivery to the Underwriters for any reason
permitted under this Agreement or the Terms Agreement or (b) the Underwriters
shall decline to purchase the Securities for any reason permitted under this
Agreement or the Terms Agreement (including the termination of the Terms
Agreement pursuant to Section 9), the Company shall reimburse the Underwriters
for the reasonable fees and expenses of their counsel and for such other out-of-
pocket expenses as shall have been reasonably incurred by them in connection
with the Terms Agreement and the proposed purchase of the Securities, and upon
demand the Company shall pay the full amount thereof to the Representatives. If
the Terms Agreement is terminated pursuant to Section 8 by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse any
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing and shall be deemed duly given if mailed or
transmitted by any standard form of telecommunication. Such notices shall be
directed as follows:
(a) if to the Underwriters, to their addresses furnished to the Company
in writing for the purpose of communications hereunder;
(b) if to the Company, to the address of the Company set forth in the
Registration Statement, Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be given to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. The Terms Agreement
(including the provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
<PAGE>
successors. The Terms Agreement (including the provisions of this Agreement)
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement also shall be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained in this Agreement. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
solely by reason of such purchase.
13. Definition of the Term "Business Day". For purposes of this Agreement,
"business day" means any day on which the NYSE is open for trading.
14. Governing Law. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CHOICE OF LAW).
15. Counterparts. The Terms Agreement may be executed in counterparts and
each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on _______________ __, 19 *.)
---
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of
initial public
offering]
FIRST DATA CORPORATION
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from FIRST DATA CORPORATION, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert---as of the date hereof, for
------------------------------
delivery on __________________, 19__ ("Delivery Date"),]
[$] _______________________________
principal amount of the Company's [Insert title of securities] ("Securities"),
--------------------------
offered by the Company's Prospectus dated __________________, 19__ and a
Prospectus Supplement dated _________, 19__, relating thereto, receipt of copies
of which is hereby acknowledged, at __% of the principal amount thereof plus
accrued interest from __________________, 19__, if any, and on the further terms
and conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
- ------------- ----------------
________________________ [$]_____________
________________________ [$]_____________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in [New York Clearing House (next day)]
funds at the office of _____________________ at 10:00 A.M. on the Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of
- -----------------------------
*Insert date which is third full business day prior to Closing Date under the
Terms Agreement.
<PAGE>
the undersigned to take delivery of and make payment for, Securities on [ the]
[each] Delivery Date shall be subject only to the conditions that (1) investment
in the Securities shall not at -such Delivery Date be prohibited under the laws
of any jurisdiction in the United States to which the undersigned is subject and
(2) the Company shall have sold to the Underwriters the total principal amount
of the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below, notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
---------------------------
(Name of purchaser)
By ________________________
(Title of Signatory)
---------------------------
---------------------------
(Address of Purchaser)
Accepted, as of the above date,
FIRST DATA CORPORATION
By _______________________________
Name:
Title:
<PAGE>
ANNEX II (A)
FIRST DATA CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
,19__
First Data Corporation
401 Hackensack Avenue
Hackensack, New Jersey 07601
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for their
respective accounts, we] [We] offer to purchase, on and subject to the terms and
conditions of the Underwriting Agreement Basic Provisions of the Company
attached hereto (the "Underwriting Agreement"), the following securities
("Securities") to be issued under an indenture, dated ________, 19__, between
the Company and _______________, as Trustee, on the following terms:
Title: [ %] [Floating Rate] [Senior] [Subordinated] [Notes] [Debentures]
-----
Due ___
Principal Amount: [$]
----------------
Interest: [ % per annum, from , 19 , payable semiannually on
--------
and commencing , 19 , to holders of record on the preceding
or , as the case may be.] [Zero coupon]
Maturity: , 19 .
--------
Optional Redemption:
-------------------
Sinking Fund:
------------
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement: __
------------------------------------------------------------------------
years.
Period Designated Pursuant to Section 4(i) of the Underwriting Agreement: __
------------------------------------------------------------------------
days.
[Conversion Provisions]:
---------------------
[Other Terms]
Delayed Delivery contracts: [None.] [Delivery Date[s] shall be
--------------------------
, 19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued interest [, if any,]
--------------
from ___________, 19__.
Expected Reoffering Price: % of principal amount, subject to change by the
-------------------------
undersigned.
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York [Clearing House (next day)] [Federal
---------------------
(same-day)] funds.
<PAGE>
[Name[s] and Address[es] of Representative[s]:]
--------------------------------------------
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent,
----------------------
amend this offer to add additional Underwriters and reduce the aggregate
principal amount to be purchased by the Underwriters listed in Schedule A hereto
by the aggregate principal amount to be purchased by such additional
Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the Securities
Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein by
reference [If appropriate, insert--, except that the obligations and agreements
----------------------
set forth in Section 8 ("Defaulting Underwriters") of the Underwriting Agreement
shall not apply to the obligations of the Underwriters to purchase the above
Securities].
The Securities will be made available for checking and packaging at the
office of _______________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
<PAGE>
[Please signify your acceptance of the foregoing by return wire not later than
P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of [themselves]
[itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- -------
----------------
Total..................................................[$]
<PAGE>
SCHEDULE B
<PAGE>
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated , 19
, relating to [$]__________principal amount of our [Insert title of Securities]
--------------------------
(the "Terms Agreement"). We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and warranties of the
undersigned contained in Section 2 of the Underwriting Agreement Basic
Provisions of the Company referred to in the Terms Agreement (together with the
Terms Agreement, the "Underwriting Agreement"), are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(2) or (5) there
will be, as of the date of such prospectus) no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
FIRST DATA CORPORATION
By_________________________
Name:
Title:
<PAGE>
ANNEX II (B)
FIRST DATA CORPORATION
("Company")
Equity Securities
TERMS AGREEMENT
---------------
,19__
First Data Corporation
401 Hackensack Avenue
Hackensack, New Jersey 07601
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions of the
Company attached hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
Title: [Common Stock] [Preferred Stock, Series ______]
-----
Number of Shares to be issued: [______ shares]
-----------------------------
[For Preferred Stock:
Voting Rights:
-------------
Preferred Stock Dividends: [cash dividends of $ to $ per share
-------------------------
payable quarterly in arrears on _____ __, ______ __, _______ __ and _______ __.]
Optional Redemption:
-------------------
Mandatory Redemption/Sinking Fund:
---------------------------------
Liquidation Preference: [$ per share plus ].
----------------------
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
--------------------------
Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement: ___
------------------------------------------------------------------------
years.
Period Designated Pursuant to Section 4(i) of the Underwriting Agreement: ___
------------------------------------------------------------------------
days.
[Conversion Provisions]:
---------------------
[Other Terms]
Price to Public: $________ per share
---------------
<PAGE>
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York [Clearing House (next day)] [Federal (same-
day)] funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
--------------------------
Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(g) of the Underwriting Agreement: ___
------------------------------------------------------------------------
years.
Period Designated Pursuant to Section 4(i) of the Underwriting Agreement:
-------------------------------------------------------------------------
___ days.
[Other Terms]
Price to Public: $______________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on , 19 , at
------------
_____________________ in New York [Clearing House (next day)] [Federal (same-
day)] funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
--------------------------------------------
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert-It is understood that we may, with your consent, amend
----------------------
this offer to add additional Underwriters and reduce the number of shares to be
purchased by the Underwriters listed in Schedule A hereto by the number of
shares to be purchased by such additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the Securities Act
of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein by
reference [If appropriate, insert--, except that the obligations and agreements
----------------------
set forth in Section 8 ("Defaulting Underwriters") of the Underwriting Agreement
shall not apply to the obligations of the Underwriters to purchase the above
Securities].
The Securities will be made available for checking and packaging at the office
of at least 24 hours prior to the Closing Date.
<PAGE>
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return wire not later
than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of [themselves][itself]
and as Representative[s] of the Several] [As]
Underwriters[s]
[By [Name of Representative]]
By______________________________
Name:
Title:
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
----------- -------
-------
Total.....................................................[$]
=======
<PAGE>
SCHEDULE B
<PAGE>
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated , 19
, relating to ____________ shares of our [Insert title of Securities] (the
--------------------------
"Terms Agreement"). We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
contained in Section 2 of the Underwriting Agreement Basic Provisions of the
Company referred to in the Terms Agreement (together with the Terms Agreement,
the "Underwriting Agreement"), are true and correct, no stop order suspending
the effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement), there has been (or in the case of a form
of prospectus filed pursuant to Rule 424(b)(2) or (5) there will be, as of the
date of such prospectus) no material adverse change in the financial position or
results of operations of the undersigned and its subsidiaries except as set
forth in or contemplated by the Prospectus.
Very truly yours,
FIRST DATA CORPORATION
By________________________________
Name:
Title:
0301409.02
<PAGE>
EXHIBIT 1.2
U.S. $_________
FIRST DATA CORPORATION
MEDIUM-TERM NOTES, SERIES __
DISTRIBUTION AGREEMENT
____________, 1997
________________________
________________________
________________________
________________________
________________________
________________________
Dear Sirs:
First Data Corporation, a Delaware corporation (the "Company"), confirms its
agreement with each of you (individually, an "Agent" and collectively, the
"Agents") with respect to the issuance and sale by the Company of its Medium-
Term Notes, Series __ (the "Notes") having an aggregate initial offering price
of up to $___________. The Notes are to be issued from time to time pursuant to
an indenture, dated as of March 26, 1993 (as supplemented or amended from time
to time, the "Indenture"), between the Company and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a), as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the Procedures (as defined in Section 2(f)). This Agreement shall only
apply to sales of the Notes and not to sales of any other securities or
evidences of indebtedness of the Company and only on the specific terms set
forth herein.
Subject to the terms and conditions of this Agreement and to the reservation
by the Company of the right to sell Notes directly on its own behalf, and to
designate and select additional agents in accordance with Section 2(a), the
Company hereby (i) appoints each of the Agents as the agent of the Company
during each Marketing Period (as defined in Section 1(b)) for the purpose of
soliciting and receiving offers to purchase Notes from the Company and (ii)
agrees that whenever the Company determines to sell Notes directly to an Agent
as principal it will enter into a separate agreement (each a "Purchase
Agreement"). Each such Purchase Agreement, whether oral (and confirmed in
writing in accordance with Section 2(e)) or in writing, shall be, with respect
to such information (as applicable) as is specified in Exhibit C relating to
such sale, in accordance with Section 2(e).
1. Representations and Warranties of the Company. The Company represents
and warrants to each Agent as of the date of this Agreement, as of the Closing
Date (as defined in Section 2(g)) and as of the times referred to in Sections
6(a) and 6(b) (the Closing Date and each such time being hereinafter sometimes
referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (File No. 333-_____), with
respect to the Notes has (i) been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and (ii)
been filed with the Commission under the Securities Act. Such registration
statement has become effective under the Securities Act. If any post-
effective amendment to such registration statement has been filed with the
Commission prior to the Representation Date, the most recent such amendment
has been declared
<PAGE>
2
effective by the Commission. Copies of such registration statement and any
amendments thereto have been delivered by the Company to the Agents. As used
in this Agreement, "Effective Time" means the respective date and time as of
which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; and
"Effective Date" means the respective applicable date of the Effective Time.
As provided in Section 3(a), a prospectus supplement relating to the Notes,
the terms of the offering thereof and the other matters set forth therein
has been filed pursuant to Rule 424 under the Securities Act. In addition, a
preliminary prospectus supplement reflecting the terms of the Notes, the
terms of the offering thereof, and the other matters set forth therein also
may be prepared and filed pursuant to Rule 424 under the Securities Act.
Such prospectus supplement, in the form filed on or after the date of this
Agreement pursuant to Rule 424, is referred to in this Agreement as the
"Prospectus Supplement", and any such preliminary prospectus supplement in
the form filed after the date of this Agreement pursuant to Rule 424 is
referred to as the "Preliminary Prospectus Supplement." Any prospectus
accompanied by a Preliminary Prospectus Supplement is referred to in this
Agreement, collectively with such Preliminary Prospectus Supplement, as a
"Preliminary Prospectus." The registration statement referred to in this
Section 1(a) and as amended at the time of the applicable Representation
Date, including the exhibits thereto (but excluding the Statement of
Qualification and Eligibility ("Form T-1")) and the documents filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), that are incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents"), is called the "Registration Statement"; and the basic
prospectus included therein relating to all offerings of securities under
the Registration Statement, as supplemented by the Prospectus Supplement and
a Pricing Supplement, is called the "Prospectus", except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either
case including the Incorporated Documents. Any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any
annual or interim report of the Company or other documents filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement. Notwithstanding the foregoing, any prospectus supplement prepared
or filed with respect to an offering pursuant to the Registration Statement
of securities other than the Notes shall not be deemed to have supplemented
the Prospectus. The Commission has not issued any order suspending the
effectiveness of the Registration Statement, and no stop order has been
initiated or threatened by the Commission.
(b) On the Effective Date, the Registration Statement conformed
in all material respects to the requirements of the Securities Act and the
Rules and Regulations, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and on each
Representation Date and at all times during each period during which, in the
opinion of counsel for the Agents, a prospectus relating to the Notes is
required to be delivered under the Securities Act (each a "Marketing
Period") and at the time of filing of the Prospectus pursuant to Rule
424(b), the Prospectus will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations, and will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; the
Incorporated Documents, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and did not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when
such documents become effective or are filed with Commission, as the case
may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and on the Effective Date and
the Closing Date,
<PAGE>
3
respectively, the Indenture conformed and will conform in all material
respects with the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the applicable rules and
regulations thereunder; provided that no representation or warranty is made
as to (i) information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Agent
specifically for inclusion therein or (ii) that part of the Registration
Statement which shall constitute Form T-1 under the Trust Indenture Act.
(c) The Company and each of its subsidiaries (as defined in Rule 405
of the Rules and Regulations) have been duly incorporated and are validly
existing as corporations in good standing under the general corporation laws
of their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification and in
which the failure to be so incorporated, existing or qualified would
reasonably be expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, and have
all power and authority necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company, other than those subsidiaries set forth on
Annex 1 (c) to this Agreement, is a "significant subsidiary," as such term
is defined in Rule 405 of the Rules and Regulations.
(d) All of the issued shares of capital stock of each significant
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid, non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims.
(e) The execution, delivery and performance of this Agreement and
each applicable Purchase Agreement, if any, by the Company and the
consummation of the transactions contemplated hereby and thereby and
compliance by the Company with the provisions of the Indenture and the Notes
will not result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
of its significant subsidiaries is a party or by which the Company or any of
its significant subsidiaries is bound or to which any of the property or
assets of the Company or any of its significant subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter
or by-laws of the Company or any of its significant subsidiaries or any
statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties or assets; and except for the
registration of the Notes under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Trust Indenture Act or the Exchange Act, and applicable
state or foreign securities laws in connection with the offer and sale of
the Notes, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement and each
applicable Purchase Agreement, if any, by the Company and the consummation
of the transactions contemplated hereby and thereby or compliance by the
Company with the provisions of the Indenture.
(f) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to include any securities owned or to be owned by such person in the
securities registered pursuant to the Registration Statement, or, except as
described in the Prospectus or in Annex 1(f) to this Agreement (or in Annex
1(f) to any applicable Officers' Certificate delivered pursuant to Section
6(b)), to require the Company to file any other registration statement under
the Securities Act (other than a registration statement on Form S-8) with
respect to any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act.
<PAGE>
4
(g) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee under the Indenture) constitutes the valid and
legally binding obligation of the Company, enforceable against the Company
in accordance with its terms; the Notes have been duly authorized by the
Company and, when the terms of the Notes and of their issuance and sale have
been duly established in accordance with the Indenture, this Agreement and
the applicable Purchase Agreement, if any, and the Notes have been duly
executed, authenticated, issued and delivered in the manner provided in the
Indenture and paid for in accordance with this Agreement and the applicable
Purchase Agreement, if any, the Notes will be duly and validly issued and
delivered by the Company, and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms and entitled to the benefits of the Indenture; and the
Notes, the Indenture and the capital stock of the Company will conform in
all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(h) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, which would reasonably be expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus; and, since such date, there has not been any material
change in the capital stock or long-term debt of the Company or any of its
subsidiaries (otherwise than as set forth or contemplated in the Prospectus)
or any material adverse change in or affecting, or any adverse development
which materially affects, the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present and will present, as of the applicable Representation
Date, fairly in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated therein.
(j) Ernst & Young LLP, or such other independent accountants
acceptable to the Agents, who have certified certain financial statements of
the Company and whose report appears or is incorporated by reference in the
Prospectus, are independent public accountants as required by the Securities
Act and the Rules and Regulations during the periods covered by the
financial statements on which they reported contained in the Prospectus.
(k) The Company has no reason to believe that the Company and each
of its subsidiaries do not own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses in the
manner described in the Prospectus and have no reason to believe that the
conduct of their respective businesses will conflict with any such rights of
others, and have not received any notice of any claims of conflict with any
such rights of others, which claims are reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which are reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of
<PAGE>
5
operations of the Company and its subsidiaries taken as a whole; and to the
actual knowledge of the Company, no such proceedings are threatened by
governmental authorities or by others.
(m) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been filed as exhibits to the
Registration Statement.
(n) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus and which is not so described.
(o) Except as described in the Prospectus and in Annex 1(o) to this
Agreement (or in Annex 1(o) to any applicable Officers' Certificate
delivered pursuant to Section 6(b)), since the date as of which information
is given in the Prospectus, the Company has not (i) issued or granted any
rights to acquire any securities (other than pursuant to employee benefit
plans or other compensation plans existing on the date of this Agreement) or
(ii) declared or paid any dividend on its capital stock other than regular
quarterly cash dividends.
(p) Neither the Company nor any of its subsidiaries, respectively,
(i) is in violation of its charter or by-laws, (ii) is in default, and no
event has occurred which, with notice or lapse of time or both, would
constitute a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or
(iii) is in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business except, in the case of clauses
(ii) and (iii), for those defaults, violations or failures which, either
individually or in the aggregate, are not reasonably expected to have a
material adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(q) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under the
United States Investment Company Act of 1940.
2. Solicitations as Agent; Purchases as Principal.
(a) Appointment. Subject to the terms and conditions of this
Agreement, the Company hereby appoints each of the Agents as one of the
agents of the Company for the purpose of soliciting or receiving offers to
purchase the Notes from the Company by others. On the basis of the
representations and warranties in this Agreement, but subject to the terms
and conditions of this Agreement, each Agent agrees, as one of the agents of
the Company, to use its reasonable best efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the
Prospectus. In connection therewith, each Agent will use the Prospectus in
the form most recently furnished to such Agent by the Company, and will
solicit offers to purchase the Notes in accordance with the Securities Act,
the Rules and Regulations and the applicable securities laws or regulations
of any other applicable jurisdiction in which such Agent solicits offers to
purchase any Note.
The Company expressly reserves the right to offer Notes directly to
investors or through agents other than the Agents and, in either case, the
Agents shall not receive any commission with respect to such sale. Each
Agent also may purchase Notes from the Company as principal for purposes of
resale, as more fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of at least one business day's prior written notice from the Company, the
<PAGE>
6
Agents shall suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of this Agreement, "business
day" shall mean any day which is not a Saturday or Sunday and which is not a
day on which The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Sections
3(a) and 3(j), each Agent shall suspend its solicitation of offers to
purchase Notes until such time as the Company shall have furnished such
Agent with an amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Sections 3(a) and 3(j) and
shall have advised such Agent that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in accordance with the schedule set forth in Exhibit A.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in such denominations as are specified in
the Prospectus at a purchase price as shall be specified by the Company.
Each Agent shall communicate to the Company promptly, orally or in writing,
each reasonable offer to purchase Notes received by it as an Agent. The
Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the
right, in its discretion reasonably exercised without advising the Company,
to reject any offer to purchase the Notes received by it, in whole or in
part, and any such rejection shall not be deemed a breach of such Agent's
agreement contained herein.
In connection with the solicitation of offers to purchase Notes, the
Agents are not authorized to provide to any person any written information
relating to the Company other than the Prospectus and the Incorporated
Documents. No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by
the Company, until such Note shall have been delivered to the purchaser
thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal shall be made in accordance with the terms of this Agreement and a
Purchase Agreement whether oral (and confirmed in writing by such Agent and
the Company which may be by facsimile transmission) or in writing, which
will provide for the sale of such Notes to, and the purchase thereof by,
such Agent. A Purchase Agreement also may specify certain provisions
relating to the reoffering of such Notes by such Agent. The commitment of
any Agent to purchase Notes from the Company as principal shall be deemed to
have been made on the basis of the representations and warranties of the
Company contained in this Agreement and shall be subject to the terms and
conditions of this Agreement. Each Purchase Agreement shall specify the
principal amount and terms of the Notes to be purchased by an Agent, the
time and date (each such time and date being referred to herein as a "Time
of Delivery") and place of delivery of and payment for such Notes and such
other information (as applicable) as is set forth in Exhibit C. The Company
agrees that if any Agent purchases Notes as principal, such Agent shall
receive such compensation, in the form of a discount or otherwise, as shall
be indicated in the applicable Purchase Agreement or, if no compensation is
indicated therein, a commission in accordance with Exhibit A. Any Agent may
utilize a selling or dealer group in connection with the resale of such
Notes. In addition, the Agents may offer the Notes they have purchased as
principal to other dealers. Any Agent may sell Notes to any dealer at a
discount. Such Purchase Agreement also shall specify any requirements for
delivery of opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 5.
(f) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Procedures") are set forth in Exhibit B and may be
amended in writing from time to time by the Agents and the Company. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in this Agreement and
in the Procedures. The Procedures shall apply to all transactions
contemplated hereunder including sales of
<PAGE>
7
Notes to any Agent as principal pursuant to a Purchase Agreement, unless
otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 shall be delivered at the offices of ___________________________,
not later than 10:00 A.M., ____________________ time, on the date of this
Agreement or at such later time as may be mutually agreed upon by the
Company and the Agents, which in no event shall be later than the time at
which the Agents commence solicitation of offers to purchase Notes hereunder
(the "Closing Date").
3. Covenants of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Agents and
to file such Prospectus, including the Prospectus Supplement, pursuant to
Rule 424(b) within the time period prescribed by the Rules and Regulations;
to notify the Agents, promptly after it receives notice, of the time when
the Registration Statement or any amendment thereto becomes effective or
promptly after the filing of any supplement or amendment to the Prospectus
(other than any Incorporated Document or any amendment or supplement
relating to an offering of securities other than the Notes or a Pricing
Supplement) and to furnish the Agents with copies thereof; to notify the
Agents, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Notes for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; to
notify the Agents promptly of any downgrading in the rating accorded the
Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the
Company, by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, or any public announcement that any such organization
has under surveillance or review, with possible negative implications, its
rating of the Notes or any of the Company's debt securities promptly after
the Company learns of such downgrading, proposal to downgrade or public
announcement; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Agents and to counsel for the
Agents a copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including
all exhibits filed therewith;
(c) To furnish promptly to each of the Agents copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus,
the Prospectus and all amendments and supplements to such documents
(including the Incorporated Documents), in each case as soon as available
and in such quantities as are reasonably requested;
(d) To file promptly with the Commission during any Marketing Period
any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may be required by the Securities Act, in
the reasonable judgment of the Company or the Agents, or requested by the
Commission;
(e) Prior to filing with the Commission during any Marketing Period
any (i) amendment to the Registration Statement or supplement to the
Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules and
Regulations (other than any Incorporated Document or any amendment or
supplement relating to an offering of securities other than the Notes), and
promptly after filing with the Commission any Incorporated Document or any
amendment to any Incorporated Document, to furnish a copy thereof to the
Agents and counsel for the Agents;
<PAGE>
8
(f) As soon as practicable, but not later than 16 months after the
date of each acceptance by the Company of an offer to purchase Notes, to
make generally available to its security holders and to the Agents an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158), covering a period of at least 12
months beginning on the first day of the first fiscal quarter of the
Company commencing after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent post-
effective amendment to the Registration Statement to become effective prior
to the date of such acceptance and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of such acceptance;
(g) For a period expiring on the earlier of (i) five years after the
applicable Representation Date and (ii) the last date on which any Note
sold pursuant to this Agreement is outstanding, to furnish to the Agents
copies of all materials furnished by the Company to its stockholders and
all public reports and financial statements furnished by the Company to the
principal national securities exchange upon which the common stock of the
Company may be listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(h) Promptly from time to time, to take such action as the Agents
reasonably may request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as the Agents may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Notes; provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject;
(i) Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, not to offer for sale, sell or
cause to be offered for sale or sold, without the prior written consent of
each Agent which is a party to such Purchase Agreement, any debt securities
which are substantially similar to the Notes;
(j) If, during any Marketing Period, any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement any
Prospectus to comply with the Securities Act, to notify the Agents
promptly, in writing, to suspend solicitation of purchases of the Notes;
and if the Company shall decide to amend or supplement the Registration
Statement or any Prospectus, to advise the Agents promptly by telephone
(with confirmation in writing) and to prepare and file with the Commission
promptly an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; provided,
however, that if during the period referred to above any Agent shall own
any Notes which it has purchased from the Company as principal with the
intention of reselling them and the Agent has held such Notes for fewer
than 180 days or the Company has accepted an offer to purchase any Notes
but the related settlement has not occurred, the Company shall promptly
prepare and timely file with the Commission any amendment or supplement to
the Registration Statement or any Prospectus that may be required by the
Securities Act, in the judgment of the Company or the Agents, or requested
by the Commission; and
(k) To prepare, with respect to any Notes to be sold through or to
the Agents pursuant to this Agreement, a Pricing Supplement with respect to
such Notes and to file such Pricing Supplement pursuant to Rule 424 under
the Securities Act with the Commission, in each case within the applicable
time period prescribed for such filing by the Rules and Regulations.
4. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
connection therewith; (b) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any amendments
and exhibits thereto; (c) the costs of
<PAGE>
9
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereto (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus and any Incorporated Documents, all as provided in
this Agreement; (d) the costs of reproducing and distributing this Agreement and
any Purchase Agreement; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Notes, if necessary; (f) any applicable stock exchange listing or
other fees; (g) the fees and expenses of filings, if any, with foreign
securities administrators and of qualifying the Notes under the securities laws
of the several jurisdictions as provided in Section 3(h) and of preparing,
reproducing and distributing a Blue Sky Memorandum (including related fees (in
an amount not to exceed $10,000) and disbursements of counsel to the Agents);
(h) the fees paid to rating agencies in connection with the rating of the Notes;
(i) the costs of printing and issuance of certificates, if any; (j) reasonable
fees and disbursements of the Trustee and any transfer agent, any paying agent,
any calculation agent, any exchange rate agent and any other agents appointed by
the Company, and their respective counsel; (k) the reasonable fees and
disbursements of counsel to the Company and counsel to the Agents; (l) all
advertising expenses in connection with the offering of the Notes incurred with
the consent of the Company; and (m) all other reasonable costs and expenses
arising out of the transactions contemplated hereunder and incident to the
performance of the obligations of the Company under this Agreement or otherwise
in connection with the activities of the Agents under this Agreement.
5. Conditions of the Agents' Obligations. The obligation of the
Agents, as the agents of the Company, under this Agreement to solicit offers to
purchase the Notes, the obligation of any person who has agreed to purchase
Notes to make payment for and take delivery of the Notes, and the obligation of
any Agent to purchase the Notes pursuant to any Purchase Agreement, is subject
to the accuracy, on each Representation Date, of the representations and
warranties of the Company contained in this Agreement, to the accuracy of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions of this Agreement, to the performance by the Company of its
obligations under this Agreement and to each of the following additional terms
and conditions:
(a) The Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to the Notes shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 3(a) and 3(k); no stop order
suspending the effectiveness of the Registration Statement or any part
thereof nor any order directed to any document incorporated by reference in
any Prospectus shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any request
of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have been
complied with. No order suspending the sale of the Notes in any jurisdiction
designated by the Agents pursuant to Section 3(h) hereof shall have been
issued, and no proceeding for that purpose shall have been initiated or
threatened.
(b) No Agent shall have discovered and disclosed to the Company that
the Registration Statement or any Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, each Purchase
Agreement, if any, the Indenture, the Notes, the Registration Statement and
each Prospectus, and all other legal matters relating to this Agreement and
each Purchase Agreement, if any, and the transactions contemplated hereby
and thereby shall be satisfactory in all material respects to counsel for
the Agents, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the
Company satisfactory to the Agents, shall have furnished to the Agents their
written opinion, as counsel to the Company, addressed to the Agents and
dated the Closing Date, in form and substance acceptable to the Agents to
the effect that:
(i) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act, and, assuming due authorization, execution and
delivery
<PAGE>
10
thereof by the Trustee, constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the Company, and, when
the terms of a Note and of its issuance and sale have been duly established
in accordance with the Indenture, this Agreement and the applicable Purchase
Agreement, if any, and when such Note has been duly executed, authenticated,
issued and delivered in the manner provided in the Indenture and paid for in
accordance with this Agreement and the applicable Purchase Agreement, if
any, such Note will be duly and validly issued and delivered by the Company
and will constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms and entitled to
the benefits of the Indenture;
(iii) The Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion; any required filing
of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has
been made within the time period prescribed by the Rules and Regulations;
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(iv) At the Effective Time, the Registration Statement (including
all documents incorporated by reference therein) complied, and on the date
of this Agreement, the Prospectus (including all documents incorporated by
reference therein) complies, and any further amendments or supplements
thereto made by the Company on or prior to the date of such opinion comply
(other than, in each case, the financial statements and related schedules
and other financial and statistical data included or incorporated by
reference therein and Form T-1 under the Trust Indenture Act, as to which
such counsel need express no opinion) as to form in all material respects
with the requirements of the Securities Act, the Exchange Act and the
applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company
conform in all material respects to the descriptions thereof contained or
incorporated by reference in the Registration Statement and the Prospectus;
and the provisions of the contracts, agreements and instruments (as the same
may be in effect on the Closing Date) summarized in the Prospectus, any
supplement thereto or any document incorporated by reference therein,
conform in all material respects to the descriptions thereof in the
Prospectus, any supplement thereto or any document incorporated by reference
therein;
(vi) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been
duly authorized by the Company, and this Agreement and each Purchase
Agreement, if any, executed and delivered prior to or at the time of
delivery of such opinion have been duly executed and delivered by the
Company;
(viii) The sale of the Notes by the Company, compliance by the
Company with all of the provisions of this Agreement, each Purchase
Agreement, if any, executed and delivered prior to or at the time of
delivery of such opinion, the Indenture and the Notes and the consummation
by the Company of the transactions contemplated hereby and thereby will not
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument scheduled in such
opinion (as in effect on the date of such opinion), and, except for the
registration of the Notes under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Trust Indenture Act, the Exchange Act and applicable
state or foreign securities laws in connection with the offer and sale of
the Notes, no consent, approval, authorization or order of, or filing or
registration with, any court or any governmental agency or body is required
for the execution, delivery and performance of this Agreement or the
applicable Purchase Agreement, if any, by the Company and the consummation
by the Company of the transactions contemplated hereby; and
<PAGE>
11
(ix) The Company is not required to be registered, and is
not regulated, as an "investment company," as such term is defined
under the United States Investment Company Act of 1940.
In addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Prospectus, such counsel
has considered the information set forth therein in light of the matters
required to be set forth therein and that such counsel has participated in
conferences with officers and representatives of the Company, including its
independent public accountants and, with respect to the Prospectus,
representatives of and counsel for the Agents, during the course of which
the contents of the Registration Statement and Prospectus and related
matters were discussed and, although such counsel shall not have
independently checked the accuracy or completeness of, or otherwise
verified, and accordingly are not passing upon, and shall not assume
responsibility for, the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus (except as set forth in subparagraph (v) above),
and that such counsel has relied as to materiality, to a large extent, upon
the judgment of officers and representatives of the Company, as a result of
such consideration and participation, nothing has come to the attention of
such counsel which causes such counsel to believe that the Registration
Statement, as of the Effective Time or, if later, as of the date of the
Company's most recent filing of an Annual Report on Form 10-K (including
such Annual Report on Form 10-K), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus, as of the date of such opinion, includes an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except that, in each case, such
counsel need not express any belief as to the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (i) state that their
opinion is limited to the federal laws of the United States, the laws of
the State of New York and the General Corporation Law of the State of
Delaware, (ii) rely as to matters of fact upon the representations
contained in this Agreement and the certificates of officers of the Company
and it subsidiaries and of public officials; provided that such counsel
shall furnish copies thereof to the Agents and state that they believe that
the Agents and they are justified in relying upon such certificates and
(iii) state that their opinions set forth in subparagraphs (i) and (ii)
above are subject to the qualification that the enforceability of the
Company's obligations under the Indenture and the Notes may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) or by an implied covenant of good faith and fair
dealing.
(e) The General Counsel or other counsel of the Company, shall have
furnished to the Agents his written opinion, addressed to the Agents and
dated the Closing Date, in form and substance satisfactory to the Agents to
the effect that:
(i) The Company and each of its significant subsidiaries
(as defined in Rule 405 under the Securities Act and listed in Annex
1(c)) have been duly incorporated and are validly existing as
corporations in good standing under the general corporation laws of
their respective jurisdictions of incorporation and have all
corporate power and authority necessary to own or hold their
respective properties and conduct the businesses in which they are
engaged;
(ii) All of the issued shares of capital stock of each
significant subsidiary have been duly and validly authorized and
issued and are fully paid, non-assessable and (except for directors'
qualifying shares) owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which are reasonably expected
to have a material adverse effect on the business, properties,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries
<PAGE>
12
taken as a whole; and, to such counsel's knowledge, no such
proceedings are threatened by governmental authorities or by others;
(iv) The sale of the Notes by the Company and the compliance
by the Company with all of the provisions of this Agreement, and each
Purchase Agreement, if any, executed and delivered prior to or at the
time of delivery of such opinion, and the consummation of the
transactions contemplated hereby and thereby will not result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries
is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any
significant subsidiary or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets (except that such
counsel need express no opinion with respect to applicable state or
foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any
significant subsidiary (A) is in violation of its charter or by-laws,
(B) is in default, and no event has occurred, which, with notice or
lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject or
(C) is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may
be subject or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its business
except, in the case of clauses (B) and (C), for those defaults,
violations or failures which, either individually or in the
aggregate, are not reasonably expected to have a material adverse
effect on the business, properties, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole; and
(vi) To such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to include any
securities owned or to be owned by such person in the securities
registered pursuant to the Registration Statement, or, except as
described in the Prospectus or listed in Annex 1(f), to require the
Company to file any other registration statement under the Securities
Act (other than a registration statement on Form S-8) with respect to
any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in any securities
being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
In rendering such opinion, such counsel may (i) state that his
opinion is limited to the federal laws of the United States, the laws of
the State of Nebraska and the General Corporation Law of the State of
Delaware and (ii) rely as to matters of fact upon certificates of officers
of the Company and its subsidiaries and of public officials; provided that
such counsel shall furnish copies thereof to the Agents and state that he
believes that the Agents and such counsel are justified in relying upon
such certificates.
(f) The Company shall have furnished to the Agents on the Closing
Date a letter of Ernst & Young LLP, addressed jointly to the Company and
the Agents and dated the Closing Date, of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, and covering such additional financial statement items
and procedures (including a review of interim financial statements
specified in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 71) as the Agents may reasonably
request and in form and substance satisfactory to the Agents.
(g) The Company shall have furnished to the Agents a certificate,
dated the Closing Date, of its Chief Financial Officer or Treasurer and
its General Counsel or other counsel reasonably satisfactory to the Agents
stating that:
<PAGE>
13
(i) The representations and warranties of the Company in Section
1 of this Agreement are true and correct as of such date; the Company
has performed all of its agreements contained in this Agreement which
are required to be performed on or before the date of such certificate
and the conditions set forth in subsections 5(h) and (j) of this
Agreement have been fulfilled; and no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor
any order directed to any document incorporated by reference in any
Prospectus shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and
(ii) They have examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement did not contain an untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, as of the date of such certificate, the Prospectus
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement or Prospectus which has not been set forth in
such a supplement or amendment.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (ii) since such date there shall not
have been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Prospectus or in a supplement thereto) or any change in
or affecting, or any adverse development which affects, the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of
the Agents, so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or
offers and sales of Notes, or with the purchase of Notes as principal
pursuant to an applicable Purchase Agreement, as the case may be.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, Inc., the American Stock Exchange
or the over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market by
the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred a material adverse change in general
economic, political or financial conditions the result of which, in the
case of each of clauses (i)-(iv), makes it (or, in the case of clause (iv),
the effect of international conditions on the financial markets in the
United States shall be such that), in the judgment of the Agents,
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Notes or offers and sales of Notes, or with the purchase of Notes
as principal pursuant to an applicable Purchase Agreement, as the case may
be.
(j) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Agents.
<PAGE>
6. Additional Covenants of the Company. The Company covenants and
agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate given to the Agents pursuant
hereto are true and correct at the time of such acceptance, and an undertaking
that such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent of the Notes relating to such acceptance
as though made at and as of each such time (and such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented at each such time).
(b) Subsequent Delivery of Officers' Certificates. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented (other than by (A) a Pricing Supplement, (B) an
amendment or supplement which relates exclusively to an offering of securities
other than the Notes or (C) except as set forth in (ii) and (iii) below, an
amendment or supplement by the filing of an Incorporated Document), (ii) the
Company files with the Commission an Annual Report on Form 10-K, a Quarterly
Report on Form 10-Q or a Current Report on Form 8-K which contains financial
information required to be set forth in or incorporated by reference into the
Prospectus pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the
Agents reasonably request following the filing by the Company with the
Commission of an Incorporated Document (other than as specified in the preceding
clause (ii)) or (iv) the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of an officers' certificate
under this Section 6(b) as a condition to the purchase of Notes pursuant to such
Purchase Agreement, the Company shall, promptly following such amendment or
supplement, filing of such Annual Report, Quarterly Report or Current Report
that is incorporated by reference into the Prospectus or request by the Agents,
or concurrently with the Time of Delivery relating to such sale, furnish to the
Agents a certificate as of the date of such amendment, supplement, filing or
Time of Delivery relating to such sale or if such amendment, supplement or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(g) which was last furnished to the Agents
are true and correct as of the time of delivery of such certificate pursuant to
this Section 6(b), as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time), or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(g), modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) Subsequent Delivery of Legal Opinions. During each Marketing Period,
each time (i) that the Registration Statement or any Prospectus shall be amended
or supplemented (other than by (A) a Pricing Supplement, (B) an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes or (C) except as set forth in (ii) and (iii) below, an amendment or
supplement by the filing of an Incorporated Document), (ii) the Company files
with the Commission an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Current Report on Form 8-K which contains financial information
required to be set forth in or incorporated by reference into the Prospectus
pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the Agents
reasonably request following the filing by the Company with the Commission of an
Incorporated Document (other than as specified in the preceding clause (ii)) or
(iv) the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under this Section
6(c) as a condition to the purchase of Notes pursuant to such Purchase
Agreement, the Company shall, promptly following such amendment or supplement,
filing of such Annual Report, Quarterly Report or Current Report that is
incorporated by reference into the Prospectus or request by the Agents, or
concurrently with the Time of Delivery relating to such sale, or if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinions of counsel to the Company specified in
Sections 5(d) and 5(e), each addressed to the Agents and dated the date of
delivery of such opinion, in form satisfactory to the Agents, to the same effect
as the opinions referred to in Sections 5(d) and 5(e) hereof, but modified, as
necessary, to relate to the Registration Statement and each Prospectus as
amended or supplemented to the time of delivery of such opinion; provided,
however, that in lieu of such opinion, counsel may furnish the Agents with
letters to the effect that the Agents may rely on prior opinions to the same
extent as though they were dated the date of such letters authorizing reliance
(except that statements in such prior opinions shall be deemed to relate to the
Registration Statement and each Prospectus as amended or supplemented to the
time of delivery of such letters authorizing reliance).
<PAGE>
15
(d) Subsequent Delivery of Accountant's Letters. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented to include additional financial information (other than
by (A) a Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or (C) except as
set forth in (ii) and (iii) below, an amendment or supplement by the filing of
an Incorporated Document), (ii) the Company files with the Commission an Annual
Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form
8-K which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3
under the Securities Act, (iii) the Agents reasonably request, following the
filing by the Company with the Commission of an Incorporated Document (other
than as specified in the preceding clause (ii)) or (iv) the Company sells Notes
to an Agent as principal and the applicable Purchase Agreement specifies the
delivery of letters under this Section 6(d) as a condition to the purchase of
Notes pursuant to such Purchase Agreement, the Company shall cause Ernst & Young
LLP (or other independent accountants of the Company acceptable to the Agents)
to furnish the Agents, promptly following such amendment or supplement, filing
of such Annual Report, Quarterly Report or Current Report that is incorporated
by reference into the Prospectus or request by the Agents, or concurrently with
the Time of Delivery relating to such sale, or if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed as provided in Section 5(f) and
dated the date of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, to the same effect as the letter referred to in
Section 5(f) but modified to relate to the Registration Statement and each
Prospectus, as amended and supplemented to the date of such letter delivered
pursuant to this Section 6(d), with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company or other relevant corporation.
(e) Opinion on Settlement Date. On any settlement date for the sale of Notes
to any Agent pursuant to a Purchase Agreement, the Company shall, if requested
by such Agent no later than the date such Purchase Agreement is entered into,
furnish such Agent with written opinions of the counsel to the Company set forth
in Sections 5(d) and 5(e), each dated such settlement date, in form satisfactory
to such Agent, to the effect set forth in Sections 5(d) and 5(e), but modified,
as necessary, to relate to the Prospectus relating to the Notes to be delivered
on such settlement date; provided, however, that in lieu of such opinion, such
counsel may furnish such Agent with a letter to the effect that such Agent may
rely on such prior opinion to the same extent as though it was dated such
settlement date (except that statements in such prior opinion shall be deemed to
relate to the Registration Statement and such Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Notes), to which
that Agent or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
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
shall reimburse each Agent and each such controlling person for any legal or
other expenses reasonably incurred by that Agent or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Agent specifically for inclusion therein; and provided further, that as to
any Preliminary Prospectus or supplement thereto this indemnity agreement shall
not inure to the benefit of any Agent or any person controlling that Agent on
account of any loss, claim, damage, liability or action arising from the sale of
Notes to any person by that Agent if that Agent failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus or supplement thereto was
corrected in that Prospectus, unless such failure resulted from non-compliance
by the Company with Section 3(c). For purposes of the second proviso to the
immediately preceding sentence, the term
<PAGE>
16
Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Agent shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
Preliminary Prospectus or supplement thereto or the Prospectus to any person
other than a person to whom such Agent has delivered such incorporated documents
in response to a written request therefor. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any Agent
or to any controlling person of that Agent.
(b) Each Agent, severally and not jointly, shall indemnify and hold harmless
the Company, each of its directors (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company), each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) 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, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of that Agent specifically for inclusion therein, and shall reimburse
the Company and any such director, officer or controlling person for any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Agent may otherwise have to the Company or any such
director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of any claim or the commencement of any action, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7 the
indemnified party shall notify the indemnifying party in writing of the claim or
the commencement of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 7. If any such claim
or action shall be brought against an indemnified party, and the indemnified
party shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Agents shall have the right to employ counsel to represent jointly the
Agents and their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Agents against the Company under this Section 7, if, in the reasonable judgment
of the Agents, there are legal defenses available to them which are different
from or in addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only for purposes of
appearing with such counsel in such jurisdictions in which such firm of
attorneys is not licensed to practice)), and in that event the fees and expenses
of such separate counsel shall be paid by the Company. Anything in this Section
7(c) to the contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without its written consent.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein (other than by reason of
the failure to give notice, as provided in the first sentence of Section 7(c)),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Agents on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative
<PAGE>
17
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Agents on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and any Agent on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the sale of the Notes
(before deducting expenses) received by the Company bear to the total
commissions received by such Agent with respect to such offering. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or any Agent, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Agents
agree that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation (even if the Agents
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to in this Section 7(d). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(d), no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes sold through it and distributed to the public was
offered to the public exceeds the amount of any damages which such Agent has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Agent's obligation to contribute as provided
in this Section 7(d) are several and not joint.
(e) The Agents severally confirm that the statements with respect to the
public offering of the Notes set forth on the cover page of, and under the
caption "Supplemental Plan of Distribution" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Agents specifically for inclusion in the Registration Statement
and the Prospectus.
8. Status Of Each Agent. In soliciting offers to purchase the Notes from
the Company pursuant to this Agreement (other than in respect of any Purchase
Agreement), each Agent is acting individually and not jointly and is acting
solely as agent for the Company and not as principal. Each Agent will make
reasonable best efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company has been solicited by
such Agent and accepted by the Company but such Agent shall have no liability to
the Company in the event any such purchase is not consummated for any reason. If
the Company shall default in its obligations to deliver Notes to a purchaser
whose offer the Company has accepted, the Company shall (i) hold the Agents
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii), in particular, pay to the Agents any commission
to which they would be entitled in connection with such sale.
9. Termination. This Agreement may be terminated for any reason at any
time by any party upon the giving of one day's written notice of such
termination to the other parties hereto; provided, however, if such terminating
party is an Agent, such termination shall be effective only with respect to such
terminating party. If, at the time of a termination, an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser has not occurred, the provisions of this Agreement shall remain in
effect until such Notes are delivered. The agreements contained in Sections
2(c), 3(f), 3(g), 4, 7 and 8 and the representations and warranties of the
Company in Section 1 shall survive the delivery of any Notes and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
10. Notices. Except as otherwise provided herein, all notices and other
communications provided pursuant to the terms of this Agreement shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Agents shall be directed
to them as follows: ______________________________; notices to the Company
shal be directed to it as follows:_____________________________________________.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Agents and the Company and their
respective successors. This Agreement is for the sole benefit of only
<PAGE>
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement also shall be deemed to be
for the benefit of the person or persons, if any, who control any Agent within
the meaning of Section 15 of the Securities Act and (B) the indemnity agreement
of the Agents contained in Section 7(b) shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained in this Agreement. No purchaser of
Notes shall be deemed to be a successor solely by reason of such purchase.
12. Governing Law. THIS AGREEMENT AND ANY PURCHASE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CHOICE OF LAW).
13. Counterparts. This Agreement and any Purchase Agreement may be executed
in counterparts and each such counterpart shall be deemed to be an original but
all such counterparts shall together constitute one and the same instrument.
14. Headings. The headings used in this Agreement are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance of this Agreement in the space provided for that purpose below.
Very truly yours,
FIRST DATA CORPORATION
By:________________________________
Title:
Name:
By:________________________________
Title:
Name:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[Name of Agent]
By:________________________________
Title:
Name:
[Name of Agent]
By:________________________________
Title:
Name:
<PAGE>
EXHIBIT 4.5
[Face of Note]
CUSIP NO.____ FIRST DATA CORPORATION
REGISTERED NO. FX__ MEDIUM-TERM NOTE, SERIES __ PRINCIPAL AMOUNT: $_____
If this Note is a Book-Entry Note, the registered owner of this Note (as
indicated below) is The Depository Trust Company (the "Depositary") or a nominee
of the Depositary, and the following legend is applicable: Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co., or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The following summary of terms is subject to the information set forth on
the reverse hereof:
OPTIONAL REDEMPTION: []YES [] NO
ORIGINAL ISSUE DATE:
INITIAL REDEMPTION DATE:
STATED MATURITY: INITIAL REDEEMPTION PERCENTAGE:
ANNUAL PERCENTAGE
REDEMPTION REDUCTION:
AUTHORIZED DENOMINATIONS REDEMPTION PRICE: The Initial Redemption
(if other than $100,000 Percentage, as adjusted downward by the Annual
and integral multiples Percentage Redemption Reduction on each
of $1,000 in excess anniversary of the Initial
thereof): Redemption Date (until the adjusted percentage
is 100%), multiplied by the unpaid Principal
Amount of the Note or the portion thereof
to be redeemed.
FORM: [] BOOK- ENTRY
[] CERTIFICATED OPTION TO ELECT REPAYMENT: [] YES [] NO
PAYING AGENT (if other OPTIONAL REPAYMENT DATE[S]:
than the Trustee):
INTEREST RATE: OPTIONAL REPAYMENT PRICE[S]:
REGULAR RECORD DATES:
INTEREST PAYMENT DATES: OPTIONAL INTEREST RESET: [] YES [] NO
OVERDUE RATE: OPTIONAL INTEREST RESET DATE[S]:
DEPOSITARY: OPTIONAL EXTENSIONS OF ORIGINAL STATED
MATURITY DATE: [] YES [] NO
SINKING FUND: [] YES [] NO EXTENSION PERIOD:
AMORTIZING NOTE:[] YES [] NO NUMBER OF EXTENSION PERIODS:
FINAL MATURITY DATE:
ANNEX ATTACHED (and OTHER PROVISIONS:
incorporated by reference
herein): [] YES [] NO
If this Note was issued with "original issue discount" for purposes
of Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT NOTE: [] YES []NO ISSUE PRICE (expressed as a
percentage of aggregate
principal amount):
YIELD TO MATURITY:
<PAGE>
FIRST DATA CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor corporation under the Senior Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to _______________________
_______________________ or registered assigns, the principal sum specified above
on the Stated Maturity shown above, and to pay interest thereon from and
including the Original Issue Date shown above or from and including the most
recent Interest Payment Date (as hereinafter defined) to which interest has been
paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates specified
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below), at the rate per
annum specified above, until the principal hereof is paid or made available for
payment and on the Stated Maturity, and, if specified above, interest will
accrue on any overdue principal and on any overdue installment of interest (to
the extent that such interest is legally enforceable) at the Overdue Rate per
annum specified above. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Senior
Indenture, be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered in the Security Register at the close of
business on the Regular Record Date specified above next preceding such Interest
Payment Date. The first payment of interest on any Note originally issued
between a Regular Record Date and the next Interest Payment Date will be made on
the Interest Payment Date following the next succeeding Regular Record Date to
the Holder on such next succeeding Regular Record Date. Except as otherwise
provided in the Senior Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof is to be given to Holders of Notes not less than 10
calendar days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Senior Indenture.
If this Note is a Book-Entry Note as specified above, while this Note
is represented by one or more Book-Entry Notes registered in the name of the
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of
interest and, if this Note is an Amortizing Note as specified above, principal
on this Note (other than interest, and if this Note is an Amortizing Note,
principal payable at Stated Maturity) will be made by mailing a check to the
Holder at the address of the Holder appearing in the Security Register on the
applicable Regular Record Date. Notwithstanding the foregoing, at the option of
the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account designated by the Holder at a bank located in the United
States.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. If this Note is a
certificated Note as specified above, payment of the principal, premium, if any,
and interest payable at Maturity in respect of this Note will be made in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the principal corporate trust office of the Trustee in the
Borough of Manhattan, The City of New York, provided that this Note is presented
to the Trustee in time for the Trustee to make such payment in such funds in
accordance with its normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF AND THE ATTACHED ANNEX, IF ANY, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or its successor as Trustee, or
its Authenticating Agent, by manual signature of an authorized signatory, this
Note will not be entitled to any benefit under the Senior Indenture or be valid
or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION FIRST DATA CORPORATION
This is one of the series of Debt By:______________________________
Securities issued under the Its:_____________________________
within-mentioned Senior Indenture.
NORWEST BANK MINNESOTA, NATIONAL Attest:__________________________
ASSOCIATION, Its:_____________________________
as Trustee
By:____________________________________________
Authorized Officer
<PAGE>
[Reverse of Note]
FIRST DATA CORPORATION
MEDIUM-TERM NOTE, SERIES __
SECTION 1. General. This Note is one of a duly authorized issue of
-------
Debt Securities of the Company (herein called the "Notes"), issued and to be
issued in one or more series under an Indenture, dated as of March 26, 1993
(herein called the "Senior Indenture"), between the Company and Norwest Bank
Minnesota, National Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Note is one of the Debt Securities of the series designated on
the face hereof. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, may be subject to different sinking funds, purchase or analogous funds,
if any, and may otherwise vary, all as provided in the Senior Indenture.
SECTION 2. Payments. Interest on this Note will be payable on the
--------
Interest Payment Date or Interest Payment Dates as specified on the face hereof
and, in either case, at Maturity.
Unless otherwise specified on the face hereof, payments on this Note
with respect to any Interest Payment Date or Maturity will include interest
accrued from and including the Original Issue Date, or from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, to but excluding such Interest Payment Date or Maturity. Interest
on this Note will be computed and paid on the basis of a 360-day year of twelve
30-day months.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect to this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Note will be rounded to the nearest cent (with one-half
cent being rounded upward).
"Business Day" means, unless otherwise specified on the face hereof,
any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close. If an Interest Payment Date or Maturity
for this Note falls on a day that is not a Business Day, payment of principal,
premium, if any, and interest to be made on such day with respect to this Note
will be made on the next day that is a Business Day with the same force and
effect as if made on the due date, and no additional interest will be payable on
the date of payment for the period from and after the due date as a result of
such delayed payment.
SECTION 3. Redemption. This Note will be redeemable at the option of
----------
the Company prior to the Stated Maturity only if an Initial Redemption Date is
specified on the face hereof. If so specified, this Note will be subject to
redemption at the option of the Company on any date on and after such Initial
Redemption Date in whole or from time to time in part in increments of $100,000
or the minimum denomination, if any, specified on the face hereof (provided that
any remaining principal amount hereof shall be at least $1,000 or such minimum
denomination), at the Redemption Price specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Regular Record Date specified on the face hereof, all as provided in
the Senior Indenture. The Company may exercise such option by causing the
Trustee to mail a notice of such redemption, at least 30 but not more than 60
calendar days prior to the date of redemption, in accordance with the provisions
of the Senior Indenture. In the event of redemption of this Note in part only,
this Note will be cancelled and a new Note or Notes representing the unredeemed
portion hereof will be issued in the name of the Holder hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note
---------
will be repayable, in whole or in part, prior to Stated Maturity at the option
of the Holder on the Optional Repayment Date or Dates specified on the face
hereof at the Optional Repayment Price or Prices specified on the face hereof,
plus accrued and unpaid interest to but excluding the date of repayment. In
order for this Note to be repaid prior to Stated Maturity, the Paying Agent must
receive at least 30 but not more than 45 calendar days prior to an Optional
Repayment Date (i) this Note with the form below entitled "Option to Elect
Repayment" duly completed or (ii) a telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the Holder of this Note, the principal amount of this Note, the
principal amount of this Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that this Note with
the form below entitled "Option to Elect Repayment" duly completed will be
received by the Paying Agent not later than five Business Days after the date of
such telegram, telex, facsimile transmission, hand delivery or letter. If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Paying Agent by such
fifth Business Day. Exercise of the repayment option by the Holder of this Note
will be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke such tender for repayment by written notice to the Paying
Agent received prior to 5:00 P.M., New York City time, on the tenth calendar day
prior to the Optional Repayment Date. The repayment option may be exercised by
the Holder of this Note for less than the entire principal amount of this Note
provided that the principal amount of this Note remaining outstanding after such
repayment is an authorized denomination. Upon such partial repayment this Note
will be cancelled and a new Note or Notes for the remaining principal amount
hereof will be issued in the name of the Holder hereof.
If this Note is a Book-Entry Note as specified on the face hereof,
while this Note is represented by one or more Book-Entry Notes registered in the
name of the Depositary or its nominee, the option for repayment may be exercised
by a participant that has an account with the Depositary, on behalf of the
beneficial owner of this Note, by delivering a written notice substantially
similar to the form below entitled "Option to Elect Repayment" duly completed to
the Trustee at its Corporate Trust Office (or such other address of which the
Company will from time to time notify the Holders), at least 30 but not more
than 60 calendar days prior to an Optional Repayment Date. A notice of election
from a participant on behalf of the beneficial owner of this Note to exercise
the option to have this Note repaid must be received by the Trustee prior to
5:00 P.M., New York City time, on the last day for giving such notice. In order
to ensure that a notice is received by the Trustee on a particular day, the
beneficial owner of this Note must so direct the applicable participant before
such participant's deadline for accepting instructions for that day. Different
firms may have different deadlines for accepting instructions from their
customers. Accordingly, the beneficial owner of this Note should consult the
participant through which such beneficial owner owns its interest herein for the
deadline for such participant. All notices shall be executed by a duly
authorized officer of such participant (with signatures guaranteed) and will be
irrevocable. In addition,
<PAGE>
the beneficial owner of this Note shall effect delivery at the time such notice
of election is given to the Depositary by causing the applicable participant to
transfer such beneficial owner's interest in this Note, on the Depositary's
records, to the Trustee.
SECTION 5. Optional Interest Reset. If so specified on the face
-----------------------
hereof, the interest rate specified on the face hereof may be reset by the
Company on the Optional Interest Reset Date or Dates specified on the face
hereof. The Company may exercise such option by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to an Optional
Interest Reset Date. If the Company so notifies the Trustee of such exercise,
not later than 40 calendar days prior to such Optional Interest Reset Date, the
Trustee will send by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) to the Holder of this Note a notice (the
"Reset Notice") indicating (i) that the Company has elected to reset the
interest rate, (ii) such new interest rate and (iii) the provisions, if any, for
redemption during the period from such Optional Interest Reset Date to the next
Optional Interest Reset Date or, if there is no such next Optional Interest
Reset Date, to the Stated Maturity of this Note (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Company may, at its option, revoke the
interest rate provided for in the Reset Notice and establish a higher interest
rate for the Subsequent Interest Period commencing on such Optional Interest
Reset Date by causing the Trustee to send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) notice of
such higher interest rate to the Holder of this Note. Such notice will be
irrevocable. All Notes with respect to which the interest rate is reset on an
Optional Interest Reset Date to a higher interest rate will bear such higher
interest rate, whether or not tendered for repayment as provided in the next
paragraph.
If the Company elects prior to an Optional Interest Reset Date to
reset the interest rate of this Note, the Holder of this Note will have the
option to elect repayment of this Note, in whole but not in part, by the Company
on such Optional Interest Reset Date at a price equal to the principal amount
hereof plus accrued and unpaid interest to but excluding such Optional Interest
Reset Date. In order for this Note to be so repaid on an Optional Interest
Reset Date, the Holder must follow the procedures specified under Section 4 for
optional repayment, except that the period for delivery of this Note or
notification to the Trustee will be at least 25 but not more than 35 calendar
days prior to such Optional Interest Reset Date. If the Holder has tendered
this Note for repayment following receipt of a Reset Notice, the Holder may
revoke such tender for repayment by written notice to the Trustee received prior
to 5:00 P.M., New York City time, on the tenth calendar day prior to such
Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the
------------------------------
face hereof, the Stated Maturity of this Note may be extended at the option of
the Company for one or more periods of from one to five whole years, as
specified on the face hereof (each an "Extension Period"), up to but not beyond
the date (the "Final Maturity Date") specified on the face hereof. The Company
may exercise such option with respect to this Note by notifying the Trustee of
such exercise at least 45 but not more than 60 calendar days prior to the Stated
Maturity of this Note in effect prior to the exercise of such option (the
"Original Stated Maturity Date"). If the Company so notifies the Trustee of
such exercise, the Trustee will send, not later than 40 calendar days prior to
the Original Stated Maturity Date, by telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid) to the Holder of this
Note a notice (the "Extension Notice") relating to such Extension Period
indicating (i) that the Company has elected to extend the Stated Maturity of
this Note, (ii) the new Stated Maturity, (iii) the interest rate applicable to
such Extension Period and (iv) the provisions, if any, for redemption during
such Extension Period, including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may occur
during such Extension Period. Upon the Trustee's sending of the Extension
Notice, the Stated Maturity of this Note will be extended automatically and,
except as modified by the Extension Notice and as described in the next two
paragraphs, this Note will have the same terms as prior to the sending of such
Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior
to the Original Stated Maturity Date of this Note, the Company may, at its
option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to send by telegram, telex, facsimile transmission, hand delivery or letter
(first class, postage prepaid) notice of such higher interest rate to the Holder
of this Note. Such notice will be irrevocable. All Notes with respect to which
the Stated Maturity is extended will bear such higher interest rate for the
Extension Period, whether or not tendered for repayment as provided in the next
paragraph.
If the Company extends the Stated Maturity of this Note (or an
Extension Period, as applicable), the Holder will have the option to elect
repayment of this Note, in whole but not in part, by the Company on the Original
Stated Maturity Date (or last day of such Extension Period) at a price equal to
the principal amount hereof, plus accrued and unpaid interest to but excluding
such date. In order for this Note to be so repaid on the Original Stated
Maturity Date (or last day of such Extension Period), the Holder of this Note
must follow the procedures specified under Section 4 for optional repayment,
except that the period for delivery of this Note or notification to the Trustee
will be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date (or last day of such Extension Period). If the Holder has
tendered this Note for repayment following receipt of an Extension Notice, the
Holder may revoke such tender for repayment by written notice to the Trustee
received prior to 5:00 p.m., New York City time, on the tenth calendar day prior
to the Original Stated Maturity Date (or last day of such Extension Period).
SECTION 7. Sinking Fund. This Note is not subject to a
------------
sinking fund unless otherwise specified on the face hereof.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything
-----------------------------
herein to the contrary, if this Note is an Original Issue Discount Note as
specified on the face hereof, the amount payable in the event the principal
amount hereof is declared to be due and payable immediately by reason of an
Event of Default or in the event of redemption or repayment hereof prior to the
Stated Maturity hereof, in lieu of the principal amount due at the Stated
Maturity hereof, will be the Amortized Face Amount of this Note as of the date
of declaration, redemption or repayment, as the case may be. The "Amortized
Face Amount" of this Note will be the amount equal to (a) the principal amount
of this Note multiplied by the Issue Price specified on the face hereof plus (b)
the portion of the difference between the dollar amount determined pursuant to
the preceding clause (a) and the principal amount hereof that has accreted at
the Yield to Maturity specified on the face hereof (computed in accordance
with generally accepted United States bond yield computation principles) to such
date of declaration, redemption or repayment but in no event will the Amortized
Face Amount of this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
-----------------
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the effect
provided in the Senior Indenture; provided, however, that notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount so declared to be due and payable will be the Amortized Face
Amount of this Note as of the date of such declaration as specified under
Section 8.
SECTION 10. Modification or Waiver;Obligation of the Company Absolute.
---------------------------------------------------------
The Senior Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities of each series to
be affected under the Senior Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of each series to be affected. The
Senior Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Outstanding Debt Securities of each
series, on behalf of the Holders of all Debt Securities of such series, to
waive, with respect to the Debt Securities of such series, compliance by the
Company with certain provisions of the Senior Indenture and certain past
<PAGE>
defaults under the Senior Indenture and their consequences. Any such consent or
waiver by the Holder of this Note will be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Senior Indenture and no provision of this
Note or of the Senior Indenture will alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
premium, if any, and interest on this Note at the times, places and rates herein
prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant Defeasance. The
---------------------------------------------------
Senior Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Events of Default upon compliance by the Company with
certain conditions specified therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise specified on
------------------------
the face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $100,000 and
integral multiples of $1,000 in excess thereof. As provided in the Senior
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, Notes of this series are
exchangeable for Notes of this series of like aggregate principal amount and
like Stated Maturity and with like terms and conditions of a different
authorized denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Senior
------------------------
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, the transfer of this Note is
registerable in the Security Register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
that purpose duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar (which
will initially be the Trustee at its principal corporate trust office located
in the Borough of Manhattan, The City of New York), duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series with like terms and conditions of authorized denominations
and for the same Stated Maturity and aggregate principal amount, will be issued
to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof,
this Note is exchangeable for certificated Notes only upon the terms and
conditions provided in the Senior Indenture. Except as provided in the Senior
Indenture, owners of beneficial interests in this Book-Entry Note will not be
entitled to receive physical delivery of Notes in certificated registered form
and will not be considered the Holders thereof for any purpose under the Senior
Indenture.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
------
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue and
notwithstanding any notation of ownership or other writing hereon, and none of
the Company, the Trustee or any such agent will be affected by notice to the
contrary.
SECTION 15. Governing Law. The Senior Indenture and the Notes will be
-------------
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
-------------
defined in the Senior Indenture will have the meanings assigned to them in the
Senior Indenture unless otherwise defined herein; and all references in the
Senior Indenture to "Debt Security" or "Debt Securities" will be deemed to
include the Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable Optional Repayment Price indicated on the face
hereof plus accrued and unpaid interest to but excluding the date of repayment,
if this Note is to be repaid pursuant to Section 4 of this Note, or (ii) 100% of
the principal amount of this Note plus accrued and unpaid interest to but
excluding the Optional Interest Reset Date, if this Note is to be repaid
pursuant to Section 5 hereof, or to but excluding the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 6 hereof. If a portion
of this Note is not being repaid pursuant to clause (i) above, specify the
principal amount to be repaid and the denomination or denominations (which will
be $100,000 or an integral multiple of $1,000 in excess thereof) of the Note or
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any specification, one such Note will be issued for the
portion not being repaid):
<TABLE>
<CAPTION>
Dated:_________________________ ____________________________________________
Signature
Sign exactly as name appears on the front of
this Note.
<S> <C>
Principal amount to be repaid if Indicate address where check is to be sent,
amount to be repaid is pursuant if repaid:
to clause (i) above and is less
than the entire principal ____________________________________________
amount of this Note (principal
amount remaining must be an ____________________________________________
authorized denomination)
$________________________________
(which will be an integral SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
multiple of $1,000)
Denomination or denominations of
the Note or Notes to be issued ____________________________________________
for the portion of this Note
not being repaid pursuant to
clause (i) above
________________________________
________________________________
</TABLE>
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
<TABLE>
<CAPTION>
UNIF GIFT MIN ACT Custodian
--------------------------------------------
<S> <C> <C>
(Cust) (Minor)
Under Uniform Gifts to Minors Act
--------------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
-------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________________________________________ attorney
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:________________________ __________________________________________
Signature
Sign exactly as name appears on the front of
this Note [SIGNATURE MUST BE GUARANTEED by a
member of a recognized Medallion Guarantee
Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT 4.6
[Face of Note]
CUSIP NO. ________ FIRST DATA CORPORATION PRINCIPAL AMOUNT: $_______
REGISTERED NO. FL ___ MEDIUM-TERM NOTE, SERIES __
If this Note is a Book-Entry Note, the registered owner of this Note (as
indicated below) is The Depository Trust Company (the "Depositary") or a nominee
of the Depositary, and the following legend is applicable: Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co., or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The following summary of terms is subject to the information set forth on the
reverse hereof:
OPTIONAL REDEMPTION: [] YES [] NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: INITIAL REDEMPTION PERCENTAGE:
ANNUAL PERCENTAGE
REDEMPTION REDUCTION:
AUTHORIZED DENOMINATIONS REDEMPTION PRICE: The Initial Redemption
(If other than $100,000 Percentage, as adjusted downward by the Annual
and integral multiples Percentage Redemption Reduction on each anniversary
of $1,000 in excess of the Initial Redemption Date (until the adjusted
thereof): percentage is 100%), multiplied by the unpaid
Principal Amount of the Note or the portion thereof
to be redeemed.
FORM: [] BOOK-ENTRY OPTION TO ELECT REPAYMENT: [] YES [] NO
[] CERTIFICATED
PAYING AGENT (If other OPTIONAL REPAYMENT DATE[S]:
than the Trustee):
OPTIONAL REPAYMENT PRICE[S]:
INTEREST RATE BASIS:
INDEX MATURITY: OPTIONAL INTEREST RESET: [] YES [] NO
REGULAR RECORD DATES: OPTIONAL INTEREST RESET DATE[S]:
INTEREST PAYMENT DATES:
INITIAL INTEREST RATE: OPTIONAL EXTENSIONS OF ORIGINAL
STATED MATURITY DATE: [] YES [] NO
MAXIMUM INTEREST RATE: EXTENSION PERIOD:
MINIMUM INTEREST RATE: NUMBER OF EXTENSION PERIODS:
SPREAD: FINAL MATURITY DATE:
SPREAD MULTIPLIER: OTHER PROVISIONS:
RESET PERIOD:
INTEREST RESET DATES:
INTEREST DETERMINATION ANNEX ATTACHED (and incorporated
DATES: by reference herein): [] YES [] NO
OVERDUE RATE:
SINKING FUND: [] YES [] NO
CALCULATION AGENT:
AMORTIZING NOTE: [] YES [] NO
DEPOSITARY:
<PAGE>
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT NOTE: [] Yes [] No ISSUE PRICE (expressed
as a percentage of aggregate
principal amount):
YIELD TO MATURITY:
FIRST DATA CORPORATION , a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor corporation under the Senior Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to ________________________
__________________________ or registered assigns, the principal sum specified
above on the Stated Maturity shown above, and to pay interest thereon from and
including the Original Issue Date shown above or from and including the most
recent Interest Payment Date (as hereinafter defined) to which interest has been
paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates specified
above, at the rate per annum determined in accordance with the provisions on the
reverse hereof, depending on the Interest Rate Basis, the Spread, if any, and/or
the Spread Multiplier, if any, specified above, commencing with the first such
Interest Payment Date next succeeding the Original Issue Date shown above
(except as provided below) until the principal hereof is paid or made available
for payment and on the Stated Maturity, and, if specified above, interest will
accrue on any overdue principal and on any overdue installment of interest (to
the extent such interest is legally enforceable) at the Overdue Rate per annum
specified above. The interest so payable and punctually paid or duly provided
for on any Interest Payment Date will, as provided in such Senior Indenture, be
paid to the Person in whose name this Note (or one or more predecessor Notes) is
registered in the Security Register at the close of business on the Regular
Record Date specified above next preceding such Interest Payment Date. The
first payment of interest on any Note originally issued between a Regular Record
Date and the next Interest Payment Date will be made on the Interest Payment
Date following the next succeeding Regular Record Date to the Holder on such
next succeeding Regular Record Date. Except as otherwise provided in the Senior
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof is
to be given to Holders of Notes not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Senior Indenture.
If this Note is a Book-Entry Note as specified above, while this Note
is represented by one or more Book-Entry Notes registered in the name of the
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of
interest and, if this Note is an Amortizing Note as specified above, principal
on this Note (other than interest, and if this Note is an Amortizing Note,
principal payable at Stated Maturity) will be made by mailing a check to the
Holder at the address of the Holder appearing in the Security Register on the
applicable Regular Record Date. Notwithstanding the foregoing, at the option of
the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account designated by the Holder at a bank located in the United
States.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. If this Note is a
certificated Note as specified above, payment of the principal, premium, if any,
and interest payable at Maturity in respect of this Note will be made in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the principal corporate trust office of the Trustee in the
Borough of Manhattan, The City of New York, provided that this Note is presented
to the Trustee in time for the Trustee to make such payment in such funds in
accordance with its normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
<PAGE>
UNLESS THE CERTIFICATE OF AUTHENTICATION HEREON HAS BEEN EXECUTED BY
THE TRUSTEE REFERRED TO ON THE REVERSE HEREOF, OR ITS SUCCESSOR AS TRUSTEE, OR
ITS AUTHENTICATING AGENT, BY MANUAL SIGNATURE OF AN AUTHORIZED SIGNATORY, THIS
NOTE WILL NOT BE ENTITLED TO ANY BENEFIT UNDER THE SENIOR INDENTURE OR BE VALID
OR OBLIGATORY FOR ANY PURPOSE.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS INSTRUMENT TO BE DULY
EXECUTED UNDER ITS CORPORATE SEAL.
DATED: FIRST DATA CORPORATION
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SERIES OF DEBT SECURITIES ISSUED UNDER THE
WITHIN-MENTIONED SENIOR INDENTURE.
BY:__________________________
ITS:_______________________
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
ATTEST:______________________
ITS:-________________________
BY:____________________________________________
AUTHORIZED OFFICER
<PAGE>
[Reverse of Note]
FIRST DATA CORPORATION
MEDIUM-TERM NOTE, SERIES __
SECTION 1. General. This Note is one of a duly authorized issue of Debt
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of March 26, 1993, (herein
called the "Senior Indenture"), between the Company and Norwest Bank Minnesota,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Note is one of the Debt Securities of the series designated on
the face hereof. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, may be subject to different sinking funds, purchase or analagous funds,
if any, and may otherwise vary, all as provided in the Senior Indenture.
SECTION 2. Interest Rate Calculations; Payments. The interest rate on
this Note will be equal to the interest rate calculated by reference to the
Interest Rate Basis specified on the face hereof (i) plus or minus the Spread,
if any, and/or (ii) multiplied by the Spread Multiplier, if any. The "Spread"
is the number of basis points (one basis point equals one-hundredth of a
percentage point) specified on the face hereof as being applicable to this Note,
and the "Spread Multiplier" is the percentage specified on the face hereof as
being applicable to this Note. Specified on the face hereof is the Interest
Rate Basis and the Spread and/or Spread Multiplier, if any, and the maximum or
minimum interest rate, if any, applicable to this Note. Specified on the face
hereof are particulars as to the Calculation Agent (unless otherwise specified,
Norwest Bank Minnesota, National Association (in such capacity, the "Calculation
Agent")), Index Maturity, Original Issue Date, the interest rate in effect for
the period from the Original Issue Date to the first Interest Reset Date
specified on the face hereof (the "Initial Interest Rate"), Interest
Determination Dates, Interest Payment Dates, Regular Record Dates and Interest
Reset Dates with respect to this Note.
Except as provided below, the Interest Payment Dates for the payment of
interest and, if this Note is an Amortizing Note, principal on this Note will be
(i) if this Note resets daily, weekly or monthly, the third Wednesday of each
month or the third Wednesday of March, June, September and December of each
year, as specified on the face hereof; (ii) if this Note resets quarterly, the
third Wednesday of March, June, September and December of each year, as
specified on the face hereof; (iii) if this Note resets semiannually, the third
Wednesday of the two months of each year specified on the face hereof; and (iv)
if this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof and, in each case, at Maturity. If any Interest
Payment Date, other than Maturity, for this Note is not a Business Day for this
Note, such Interest Payment Date will be postponed to the next day that is a
Business Day for this Note, except that if the Interest Rate Basis specified on
the face hereof is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the immediately preceding
London Business Day. If the Maturity for this Note falls on a day that is not a
Business Day, payment of principal, premium, if any, and interest to be made on
such day with respect to this Note will be made on the next day that is a
Business Day with the same force and effect as if made on the due date, and no
additional interest will be payable on the date of payment for the period from
and after the due date as a result of such delayed payment.
The rate of interest on this Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually (such period being the "Reset Period" for
this Note, and the first day of each Reset Period being an "Interest Reset
Date"), as specified on the face hereof. Unless otherwise specified on the face
hereof, the Interest Reset Date will be, if this Note resets daily, each
Business Day for this Note; if this Note resets weekly (unless the Interest Rate
Basis specified on the face hereof is the Treasury Rate), the Wednesday of each
week; if this Note resets weekly and the Interest Rate Basis specified on the
face hereof is the Treasury Rate, the Tuesday of each week (except as specified
below); if this Note resets monthly (unless the Interest Rate Basis specified on
the face hereof is the 11th District Cost of Funds Rate), the third Wednesday of
each month; if this Note resets monthly and the Interest Rate Basis specified on
the face hereof is the 11th District Cost of Funds Rate, the first calendar day
of the month; if this Note resets quarterly, the third Wednesday of each March,
June, September and December; if this Note resets semiannually, the third
Wednesday of the two months of each year specified on the face hereof; and if
this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof; provided, however, that the interest rate in
effect from the Original Issue Date to but excluding the first Interest Reset
Date will be the Initial Interest Rate specified on the face hereof. If the
Interest Reset Date is not a Business Day for this Note, the Interest Reset Date
will be postponed to the next day that is a Business Day for this Note, except
that if the Interest Rate Basis specified on the face hereof is LIBOR, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
will be the immediately preceding London Business Day. Each adjusted rate will
be applicable on and after the Interest Reset Date to which it relates to but
excluding the next succeeding Interest Reset Date or until Maturity.
The interest rate for each Reset Period will be the rate determined by the
Calculation Agent on the Calculation Date (as defined below) pertaining to the
Interest Determination Date pertaining to the Interest Reset Date for such Reset
Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date (a) if the Interest
Rate Basis specified on the face hereof is Commercial Paper Rate (the
"Commercial Paper Interest Determination Date"), (b) if the Interest Rate Basis
specified on the face hereof is CD Rate (the "CD Interest Determination Date'),
(c) if the Interest Rate Basis specified on the face hereof is CMT Rate (the
"CMT Interest Determination Date"), (d) if the Interest Rate Basis specified on
the face hereof is Federal Funds Rate (the "Federal Funds Interest Determination
Date"), (e) if the Interest Rate Basis specified on the face hereof is Kenny
Rate (the "Kenny Rate Interest Determination Date") or (f) if the Interest Rate
Basis specified on the face hereof is Prime Rate (the "Prime Interest
Determination Date"), will be the second Business Day prior to such Interest
Reset Date as specified on the face hereof. Unless otherwise specified on the
face hereof, the Interest Determination Date pertaining to an Interest Reset
Date, if the Interest Rate Basis specified on the face hereof is 11th District
Cost of Funds Rate (the "11th District Interest Determination Date"), will be
the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below under "Determination of 11th
District Cost of Funds Rate"). Unless otherwise specified on the face hereof,
the Interest Determination Date pertaining to an Interest Reset Date, if the
Interest Rate Basis specified on the face hereof is LIBOR (the "LIBOR Interest
Determination Date"), will be the second London Business Day immediately
preceding such Interest Reset Date. Unless otherwise specified on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date, if
the Interest Rate Basis specified on the face hereof is Treasury Rate (the
"Treasury Interest Determination Date"), will be the day of the week in which
such Interest Reset Date falls on which Treasury bills would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is usually held on
the following Tuesday, except that such auction may be held on the preceding
Friday. If an auction is so held on the preceding Friday, such Friday will be
the Treasury Interest Determination Date pertaining to the Reset Period
commencing in the next succeeding week. If an auction date falls on any
Interest Reset Date for this Note (if the Interest Rate Basis specified on the
face hereof is Treasury Rate), then such Interest Reset Date will instead be the
first Business Day immediately following such auction date. Unless otherwise
specified on the face hereof, the "Calculation Date" pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after the
Interest Determination Date or, if such day is not a Business Day, the next day
that is a Business Day, or (ii) the Business Day preceding the applicable
Interest Payment Date or Maturity, as the case may be.
<PAGE>
"Business Day" means, unless otherwise specified on the face hereof, any
Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York is
not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close and, if the Interest Rate Basis specified
on the face hereof is LIBOR, is also a London Business Day. "London Business
Day" means any day (a) if the Designated LIBOR Currency is other than the ECU,
on which dealings in deposits in such Designated LIBOR Currency are transacted
in the London interbank market or (b) if the Designated LIBOR Currency is the
ECU, that is not designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payments on ECUs will not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect to this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
Unless otherwise specified on the face hereof, payments on this Note with
respect to any Interest Payment Date or Maturity will include interest accrued
from and including the Original Issue Date, or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, to but excluding such Interest Payment Date or Maturity. Accrued interest
is calculated by multiplying the principal amount of this Note by an accrued
interest factor. This accrued interest factor is computed by adding the
interest factors calculated for each day from and including the Original Issue
Date, or from and including the last date to which interest has been paid or
duly provided for, to but excluding the date for which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable to such day by 360, if the Interest Rate Basis
specified on the face hereof is Commercial Paper Rate, CD Rate, Federal Funds
Rate, 11th District Cost of Funds Rate, LIBOR or Prime Rate, or by the actual
number of days in the year, if the Interest Rate Basis specified on the face
hereof is CMT Rate or Treasury Rate, or by 365 days if the Interest Rate Basis
specified on the face hereof is Kenny Rate.
The Calculation Agent will calculate the interest rate on this Note, as
provided below. The Calculation Agent will, upon the request of the Holder of
this Note, provide the interest rate then in effect and, if then determined, the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to this
Note. For purposes of calculating the rate of interest payable on this Note, the
Company has entered into or will enter into an agreement with the Calculation
Agent. The Calculation Agent's determination of any interest rate will be final
and binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided below,
the interest rate on this Note for any interest period will not be greater than
the maximum interest rate, if any, or less than the minimum interest rate, if
any, specified on the face hereof. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York or other applicable
law, as the same may be modified by United States law of general application.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis specified on
the face hereof is Commercial Paper Rate, the interest rate determined with
respect to any Commercial Paper Interest Determination Date will be the
Commercial Paper Rate on such Commercial Paper Interest Determination Date plus
or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any,
as specified on the face hereof.
Unless otherwise specified on the face hereof, "Commercial Paper Rate"
means, with respect to any Commercial Paper Interest Determination Date, the
Money Market Yield (calculated as described below) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication of the Board of Governors ("H.15(519)") under the heading
"Commercial Paper." In the event that such rate is not published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such Commercial
Paper Interest Determination Date, then the Commercial Paper Rate with respect
to such Commercial Paper Interest Determination Date will be the Money Market
Yield of the rate on such Commercial Paper Interest Determination Date for
commercial paper having the Index Maturity specified on the face hereof as
published by the Federal Reserve Bank of New York in its daily statistical
release "Composite 3:30 P.M. Quotations for U.S. Government Securities" or any
successor publication ("Composite Quotations") under the heading "Commercial
Paper." If by 3:00 P.M., New York City time, on such Calculation Date such rate
is not published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be calculated by the Calculation Agent and will be the
Money Market Yield of the arithmetic mean of the offered rates (quoted on a bank
discount basis) as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified on the face hereof placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
securities rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date will be the Commercial Paper Rate in effect
immediately prior to such Commercial Paper Interest Determination Date.
"Money Market Yield" will be a yield (expressed as a percentage rounded, if
necessary, to the nearest one hundred-thousandth of a percent) calculated in
accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
DETERMINATION OF CD RATE. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to any CD Interest
Determination Date will be the CD Rate on such CD Interest Determination Date
plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if
any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "CD Rate" means, with
respect to any CD Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published in H.15(519) under the heading "CDs (Secondary
Market)." In the event that such rate is not published prior to 9:00 A.M., New
York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, then the CD Rate with respect to such CD Interest
Determination Date will be the rate on such CD Interest Determination Date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published in Composite Quotations under the heading "Certificates
of Deposit." If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or Composite Quotations, then the
<PAGE>
CD Rate with respect to such CD Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Interest
Determination Date of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money market
banks (in the market for negotiable certificates of deposit) with a remaining
maturity closest to the Index Maturity specified on the face hereof in a
denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect immediately prior to such CD Interest Determination
Date.
DETERMINATION OF CMT RATE. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to any CMT
Interest Determination Date will be the CMT Rate on such CMT Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "CMT Rate" means, with
respect to any CMT Interest Determination Date, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, such CMT Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week, or the month, as specified on the face hereof,
ended immediately preceding the week in which the applicable CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Interest Determination Date, then the CMT Rate with
respect to such CMT Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate with respect to such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CMT Interest Determination
Date, then the CMT Rate with respect to such CMT Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market closing offer side prices
as of approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT Rate with respect to
such CMT Interest Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
the CMT Interest Determination Date of three Reference Dealers in The City of
New York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate with respect to such
CMT Interest Determination Date will be based on the arithmetic mean of the
offer prices obtained and neither the highest nor the lowest of such quotes will
be eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT Rate
will be the CMT Rate in effect immediately prior to such CMT Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the Treasury
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as published in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as published in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page will be 7052, for
the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the Treasury Notes (either one, two, three, five, seven, ten, twenty or thirty
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index will be two years.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with respect
to any Federal Funds Interest Determination Date will be the Federal Funds Rate
on such Federal Funds Interest Determination Date plus or minus the Spread, if
any, and/or multiplied by the Spread Multiplier, if any, specified on the face
hereof.
Unless otherwise specified on the face hereof, "Federal Funds Rate" means,
with respect to any Federal Funds Interest Determination Date, the rate on such
date for Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)." In the event that such rate is not published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such Federal
Funds Interest Determination Date, then the Federal Funds Rate will be the rate
on such Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If by 3:00 P.M.,
New York City time, on such Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, then the Federal Funds Rate with
respect to such Federal Funds Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean (rounded, if necessary, to
the nearest one hundred-thousandth of a percent) of the rates as of 9:00 A.M.,
New York City time, on such Federal Funds Interest Determination Date for the
last transaction in overnight Federal Funds arranged by three leading brokers of
Federal Funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate with respect to such Federal Funds Interest Determination Date will
be the Federal Funds Rate in effect immediately prior to such Federal Funds
Interest Determination Date.
DETERMINATION OF 11TH DISTRICT COST OF FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to any 11th District Interest Determination Date
will be the 11th District Cost of Funds Rate on such 11th District Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
<PAGE>
Unless otherwise specified on the face hereof, "11th District Cost of Funds
Rate" means, with respect to any 11th District Interest Determination Date, the
rate equal to the monthly weighted average cost of funds for the calendar month
preceding such 11th District Interest Determination Date as set forth under the
caption "11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco
time, on such 11th District Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on any related 11th District Interest Determination
Date, the 11th District Cost of Funds Rate for such 11th District Interest
Determination Date will be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such cost
of funds for the calendar month preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month next
preceding such 11th District Interest Determination Date, then the 11th District
Cost of Funds Rate with respect to such 11th District Interest Determination
Date will be the 11th District Cost of Funds Rate then in effect on such 11th
District Interest Determination Date.
KENNY RATE NOTES. If the Interest Rate Basis specified on the face hereof is
Kenny Rate, the interest rate determined with respect to any Kenny Rate Interest
Determination Date will be the Kenny Rate on such Kenny Rate Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Kenny Rate" means, with
respect to any Kenny Rate Interest Determination Date, the high grade weekly
index (the "Weekly Index") on such date made available by J.J. Kenny Information
Systems ("Kenny") to the Calculation Agent. The Weekly Index is, and will be,
based upon 30 day yield evaluations at par of bonds, the interest on which is
exempt from Federal income taxation under the Internal Revenue Code of 1986, as
amended (the "Code"), of not less than five high grade component issuers
selected by Kenny which will include, without limitation, issuers of general
obligation bonds. The specified issuers included among the component issuers
may be changed from time to time by Kenny in its discretion. The bonds on which
the Weekly Index is based will not include any bonds on which the interest is
subject to a minimum tax or similar tax under the Code unless all tax-exempt
bonds are subject to such tax. In the event Kenny ceases to make available such
Weekly Index, a successor indexing agent will be selected by the Calculation
Agent, such index to reflect the prevailing rate for bonds rated in the highest
short-term rating category by Moody's Investors Service, Inc. and Standard &
Poor's Ratings Group in respect of issuers most closely resembling the high
grade component issuers selected by Kenny for its Weekly Index, the interest on
which is (A) variable on a weekly basis, (B) exempt from Federal income taxation
under the Code and (C) not subject to a minimum tax or similar tax under the
Code unless all tax-exempt bonds are subject to such tax. If such successor
indexing agent is not available, the Kenny Rate with respect to any Kenny Rate
Interest Determination Date will be 67% of the rate determined as if the
Treasury Rate option had been originally selected.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to any LIBOR Interest
Determination Date will be LIBOR on such LIBOR Interest Determination Date plus
or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any,
specified on the face hereof.
Unless otherwise specified on the face hereof, LIBOR means, with respect to
any LIBOR Interest Determination Date, the rate determined by the Calculation
Agent in accordance with the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated LIBOR
Page (as defined below) by its terms provides only for a single rate, in
which case such single rate will be used) for deposits in the Designated
LIBOR Currency (as defined below) having the Index Maturity specified on the
face hereof, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, which appear on the
Designated LIBOR Page specified on the face hereof as of 11:00 A.M., London
time, on that LIBOR Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required)
on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on
the face hereof, the rate for deposits in the Designated LIBOR Currency
having the Index Maturity specified on the face hereof, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page specified on
the face hereof as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date. Notwithstanding the foregoing, if fewer than two offered
rates appear on the Designated LIBOR Page with respect to LIBOR Reuters
(unless the specified Designated LIBOR Page by its terms provides only for a
single rate, in which case such single rate will be used), or if no rate
appears on the Designated LIBOR Page with respect to LIBOR Telerate,
whichever may be applicable, LIBOR with respect to such LIBOR Interest
Determination Date will be determined as if the parties had specified the
rate described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with
respect to LIBOR Reuters (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate will be
used), or if no rate appears on the Designated LIBOR Page with respect to
LIBOR Telerate, as the case may be, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market selected by the Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in the Designated LIBOR
Currency for the period of the Index Maturity specified on the face hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, to prime banks in the London interbank
market as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such market at such time.
If at least two such quotations are provided, LIBOR with respect to such
LIBOR Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR with respect to such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted as of
11:00 A.M. in the applicable Principal Financial Center (as defined below),
on such LIBOR Interest Determination Date by three major banks in such
Principal Financial Center selected by the Calculation Agent for loans in
the Designated LIBOR Currency to leading European banks, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date having the Index Maturity specified on the face hereof in
a principal amount that is representative for a single transaction in such
Designated LIBOR Currency in such market at such time; provided, however,
that if the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR with respect to such LIBOR Interest
Determination Date will be LIBOR in effect immediately prior to such LIBOR
Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated on the face hereof, the Designated
LIBOR Currency will be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank rates of
major banks for the applicable Designated LIBOR Currency (if "LIBOR Reuters" is
specified on the face hereof), or (b) the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank rates of major banks
for the applicable designated LIBOR Currency (if "LIBOR Telerate" is specified
on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is specified
on the face hereof, LIBOR for the applicable Designated LIBOR Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the Designated LIBOR
Currency, page 3750) had been chosen.
<PAGE>
"Principal Financial Center" means, unless otherwise specified on the face
hereof, the capital city of the country that issues as its legal tender the
Designated LIBOR Currency of this Note, except that with respect to U.S. dollars
and ECUs, the Principal Financial Center will be The City of New York and
Brussels, respectively.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis specified on the face
hereof is Prime Rate, the interest rate determined with respect to any Prime
Interest Determination Date will be the Prime Rate on such Prime Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Prime Rate" means, with
respect to any Prime Interest Determination Date, the rate on such date as
published in H.15(519) under the heading "Bank Prime Loan." In the event that
such rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Prime Interest Determination Date, then the
Prime Rate with respect to such Prime Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the Reuters
Screen USPRIME1 as such bank's prime rate or base lending rate as in effect with
respect to such Prime Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 with respect to such Prime Interest
Determination Date, the Prime Rate with respect to such Prime Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business on such Prime
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent. If fewer than
two quotations are provided, the Prime Rate with respect to such Prime Interest
Determination Date will be determined on the basis of the rates furnished in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States, or
any state thereof, having total equity capital of at least U.S. $500,000,000 and
being subject to supervision or examination by Federal or state authority,
selected by the Calculation Agent to provide such rate or rates; provided,
however, that if the appropriate number of substitute banks or trust companies
selected as aforesaid are not quoting as mentioned in this sentence, the Prime
Rate with respect to such Prime Interest Determination Date will be the Prime
Rate in effect immediately prior to such Prime Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page "USPRIME1" on the
Reuters Monitor Money Rate Service (or such other page as may replace the
USPRIME1 page on the service for the purpose of displaying the prime rate or
base lending rate of major banks).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to any
Treasury Interest Determination Date will be the Treasury Rate on such Treasury
Interest Determination Date plus or minus the Spread, if any, and/or multiplied
by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Treasury Rate" means, with
respect to any Treasury Interest Determination Date, the rate for the most
recent auction of direct obligations of the United States ("Treasury bills")
having the Index Maturity specified on the face hereof as published in H.15(519)
under the heading, "Treasury bills -- auction average (investment)" or, if not
so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, the average auction
rate on such Treasury Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that such rate is not available by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, or if no such auction is held in a particular week, then the
Treasury Rate with respect to such Treasury Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity (expressed
as a bond equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Interest Determination Date, of three leading primary U.S. government securities
dealers selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate with
respect to such Treasury Interest Determination Date will be the Treasury Rate
in effect immediately prior to such Treasury Interest Determination Date.
The Calculation Agent will calculate the interest rate on this Note in
accordance with the foregoing no later than the Calculation Date. The
Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
All percentages resulting from any calculation with respect to this Note
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Note will be rounded to the nearest cent (with one-half
cent being rounded upward).
SECTION 3. Redemption. This Note will be redeemable at the option of the
----------
Company prior to the Stated Maturity only if an Initial Redemption Date is
specified on the face hereof. If so specified, this Note will be subject to
redemption at the option of the Company on any date on and after such Initial
Redemption Date in whole or from time to time in part in increments of $1,000
or the minimum denomination, if any, specified on the face hereof (provided that
any remaining principal amount hereof shall be at least $1,000 or such minimum
denomination), at the Redemption Price specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Regular Record Date specified on the face hereof, all as provided in
the Senior Indenture. The Company may exercise such option by causing the
Trustee to mail a notice of such redemption, at least 30 but not more than 60
calendar days prior to the date of redemption, in accordance with the provisions
of the Senior Indenture. In the event of redemption of this Note in part only,
this Note will be cancelled and a new Note or Notes representing the unredeemed
portion hereof will be issued in the name of the Holder hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note will
---------
be repayable, in whole or in part, prior to Stated Maturity at the option of the
Holder on the Optional Repayment Date or Dates specified on the face hereof at
the Optional Repayment Price or Prices specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of repayment. In order
for this Note to be repaid prior to Stated Maturity, the Paying Agent must
receive at least 30 but not more than 45 calendar days prior to an Optional
Repayment Date (i) this Note with the form below entitled "Option to Elect
Repayment" duly completed or (ii) a telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States setting forth
the name of the Holder of this Note, the principal amount of this Note, the
principal amount of this Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that this Note with
the form below entitled "Option to Elect Repayment" duly completed will be
received by the Paying Agent not later than five Business Days after the date of
such telegram, telex, facsimile transmission, hand delivery or letter. If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Paying Agent by such
fifth Business Day. Exercise of the repayment option by the Holder of this Note
will be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke such tender for repayment by written notice to the Paying
Agent received prior to 5:00 P.M., New York City time, on the tenth calendar day
prior to the Optional Repayment Date. The repayment option may be exercised by
the Holder of this Note for less than the entire principal amount of this Note
provided that the principal amount of this Note remaining outstanding after such
repayment is an authorized denomination. Upon such partial repayment this Note
will be cancelled and a new Note or Notes for the remaining principal amount
hereof will be issued in the name of the Holder hereof.
<PAGE>
If this Note is a Book-Entry Note as specified on the face hereof, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the option for repayment may be exercised by a
participant that has an account with the Depositary, on behalf of the beneficial
owner of this Note, by delivering a written notice substantially similar to the
form below entitled "Option to Elect Repayment" duly completed to the Trustee at
its Corporate Trust Office (or such other address of which the Company will from
time to time notify the Holders), at least 30 but not more than 60 calendar days
prior to an Optional Repayment Date. A notice of election from a participant on
behalf of the beneficial owner of this Note to exercise the option to have this
Note repaid must be received by the Trustee prior to 5:00 P.M., New York City
time, on the last day for giving such notice. In order to ensure that a notice
is received by the Trustee on a particular day, the beneficial owner of this
Note must so direct the applicable participant before such participant's
deadline for accepting instructions for that day. Different firms may have
different deadlines for accepting instructions from their customers.
Accordingly, the beneficial owner of this Note should consult the participant
through which such beneficial owner owns its interest herein for the deadline
for such participant. All notices shall be executed by a duly authorized
officer of such participant (with signatures guaranteed) and will be
irrevocable. In addition, the beneficial owner of this Note shall effect
delivery at the time such notice of election is given to the Depositary by
causing the applicable participant to transfer such beneficial owner's interest
in this Note, on the Depositary's records, to the Trustee.
SECTION 5. Optional Interest Reset. If so specified on the face hereof,
-----------------------
the Spread and/or Spread Multiplier specified on the face hereof may be reset by
the Company on the Optional Interest Reset Date or Dates specified on the face
hereof. The Company may exercise such option by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to an Optional
Interest Reset Date. If the Company so notifies the Trustee of such exercise,
not later than 40 calendar days prior to such Optional Interest Reset Date, the
Trustee will send by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) to the Holder of this Note a notice (the
"Reset Notice") indicating (i) that the Company has elected to reset the Spread
and/or Spread Multiplier, (ii) such new Spread and/or Spread Multiplier and
(iii) the provisions, if any, for redemption during the period from such
Optional Interest Reset Date to the next Optional Interest Reset Date or, if
there is no such next Optional Interest Reset Date, to the Stated Maturity of
this Note (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to an
Optional Interest Reset Date, the Company may, at its option, revoke the Spread
and/or Spread Multiplier provided for in the Reset Notice and establish a Spread
and/or Spread Multiplier resulting in a higher interest rate for the Subsequent
Interest Period commencing on such Optional Interest Reset Date by causing the
Trustee to send by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) notice of such Spread and/or Spread
Multiplier resulting in a higher interest rate to the Holder of this Note. Such
notice will be irrevocable. All Notes with respect to which the Spread and/or
Spread Multiplier is reset on an Optional Interest Reset Date to a Spread and/or
Spread Multiplier resulting in a higher interest rate will bear such Spread
and/or Spread Multiplier resulting in a higher interest rate, whether or not
tendered for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset the
interest rate of this Note, the Holder of this Note will have the option to
elect repayment of this Note, in whole but not in part, by the Company on such
Optional Interest Reset Date at a price equal to the principal amount hereof
plus accrued and unpaid interest to but excluding such Optional Interest Reset
Date. In order for this Note to be so repaid on an Optional Interest Reset
Date, the Holder must follow the procedures specified under Section 4 for
optional repayment, except that the period for delivery of this Note or
notification to the Trustee will be at least 25 but not more than 35 calendar
days prior to such Optional Interest Reset Date. If the Holder has tendered
this Note for repayment following receipt of a Reset Notice, the Holder may
revoke such tender for repayment by written notice to the Trustee received prior
to 5:00 P.M., New York City time, on the tenth calendar day prior to such
Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
------------------------------
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for one or more periods of from one to five whole years, as specified on
the face hereof (each an "Extension Period"), up to but not beyond the date (the
"Final Maturity Date") specified on the face hereof. The Company may exercise
such option with respect to this Note by notifying the Trustee of such exercise
at least 45 but not more than 60 calendar days prior to the Stated Maturity of
this Note in effect prior to the exercise of such option (the "Original Stated
Maturity Date"). If the Company so notifies the Trustee of such exercise, the
Trustee will send, not later than 40 calendar days prior to the Original Stated
Maturity Date, by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) to the Holder of this Note a notice (the
"Extension Notice") relating to such Extension Period indicating (i) that the
Company has elected to extend the Stated Maturity of this Note, (ii) the new
Stated Maturity, (iii) the Spread and/or Spread Multiplier applicable to such
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period, including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
such Extension Period. Upon the Trustee's sending of the Extension Notice, the
Stated Maturity of this Note will be extended automatically and, except as
modified by the Extension Notice and as described in the next two paragraphs,
this Note will have the same terms as prior to the sending of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to the
Original Stated Maturity Date of this Note, the Company may, at its option,
revoke the Spread and/or Spread Multiplier provided for in the Extension Notice
and establish a Spread and/or Spread Multiplier resulting in a higher interest
rate for the Extension Period by causing the Trustee to send by telegram, telex,
facsimile transmission, hand delivery or letter (first class, postage prepaid)
notice of such Spread and/or Spread Multiplier resulting in a higher interest
rate to the Holder of this Note. Such notice will be irrevocable. All Notes
with respect to which the Stated Maturity is extended will bear such Spread
and/or Spread Multiplier resulting in a higher interest rate for the Extension
Period, whether or not tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note (or an Extension
Period, as applicable), the Holder will have the option to elect repayment of
this Note, in whole but not in part, by the Company on the Original Stated
Maturity Date (or last day of such Extension Period) at a price equal to the
principal amount hereof, plus accrued and unpaid interest to but excluding such
date. In order for this Note to be so repaid on the Original Stated Maturity
Date (or last day of such Extension Period), the Holder of this Note must follow
the procedures specified under Section 4 for optional repayment, except that the
period for delivery of this Note or notification to the Trustee will be at least
25 but not more than 35 calendar days prior to the Original Stated Maturity Date
(or last day of such Extension Period). If the Holder has tendered this Note
for repayment following receipt of an Extension Notice the Holder may revoke
such tender for repayment by written notice to the Trustee received prior to
5:00 P.M., New York City time, on the tenth calendar day prior to the Original
Stated Maturity Date (or last day of such Extension Period).
SECTION 7. Sinking Fund. This Note is not subject to a sinking fund unless
------------
otherwise specified on the face hereof.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything herein
-----------------------------
to the contrary, if this Note is an Original Issue Discount Note as specified on
the face hereof, the amount payable in the event the principal amount hereof is
declared to be due and payable immediately by reason of an Event of Default or
in the event of redemption or repayment hereof prior to the Stated Maturity
hereof, in lieu of the principal amount due at the Stated Maturity hereof, will
be the Amortized Face Amount of this Note as of the date of declaration,
redemption or repayment, as the case may be. The "Amortized Face Amount" of
this Note will be the amount equal to (a) the principal amount of this Note
multiplied by the Issue Price specified on the face hereof plus (b) the portion
of the difference between the dollar amount determined pursuant to the preceding
clause (a) and the principal amount hereof that has accreted at
<PAGE>
the Yield to Maturity specified on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) to such date
of declaration, redemption or repayment but in no event will the Amortized Face
Amount of this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
-----------------
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the effect
provided in the Senior Indenture; provided, however, that notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount so declared to be due and payable will be the Amortized Face
Amount of this Note as of the date of such declaration as specified under
Section 8.
SECTION 10. Modification or Waiver; Obligation of the Company Absolute.
----------------------------------------------------------
The Senior Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities of each series to
be affected under the Senior Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of each series to be affected. The
Senior Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Outstanding Debt Securities of each
series, on behalf of the Holders of all Debt Securities of such series, to
waive, with respect to the Debt Securities of such series, compliance by the
Company with certain provisions of the Senior Indenture and certain past
defaults under the Senior Indenture and their consequences. Any such consent or
waiver by the Holder of this Note will be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Senior Indenture and no provision of this Note
or of the Senior Indenture will alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, and premium, if
any, and interest on this Note at the times, places and rates, herein
prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant Defeasance. The Senior
---------------------------------------------------
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related Events of Default upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise specified on the
------------------------
face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $100,000 and
integral multiples of $1,000 in excess thereof. As provided in the Senior
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, Notes of this series are
exchangeable for Notes of this series of like aggregate principal amount and
like Stated Maturity and with like terms and conditions of a different
authorized denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Senior Indenture
------------------------
and subject to certain limitations therein specified and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar (which will initially be the Trustee at
its principal corporate trust office located in the Borough of Manhattan, The
City of New York) duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series with
like terms and conditions, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Senior Indenture. Except as provided in the Senior Indenture,
owners of beneficial interests in this Book-Entry Note will not be entitled to
receive physical delivery of Notes in certificated registered form and will not
be considered the Holders thereof for any purpose under the Senior Indenture.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for registration
------
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue and notwithstanding
any notation of ownership or other writing hereon, and none of the Company, the
Trustee or any such agent will be affected by notice to the contrary.
SECTION 15. Governing Law. The Senior Indenture and the Notes will be
-------------
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are defined in
-------------
the Senior Indenture will have the meanings assigned to them in the Senior
Indenture unless otherwise defined herein; and all references in the Senior
Indenture to "Debt Security" or "Debt Securities" will be deemed to include the
Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable Optional Repayment Price indicated on the face
hereof, plus accrued and unpaid interest to but excluding the date of repayment,
if this Note is to be repaid pursuant to Section 4 of this Note, or (ii) 100% of
the principal amount of this Note plus accrued and unpaid interest to but
excluding the Optional Interest Reset Date, if this Note is to be repaid
pursuant to Section 5 hereof, or to but excluding the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 6 hereof. If a portion
of this Note is not being repaid pursuant to clause (i) above, specify the
principal amount to be repaid and the denomination or denominations (which will
be $100,000 or an integral multiple of $1,000 in excess thereof) of the Note or
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any specification, one such Note will be issued for the
portion not being repaid):
<TABLE>
<CAPTION>
Dated:___________________________ ____________________________________________
Signature
Sign exactly as name appears on the front of
this Note.
<S> <C>
Indicate address where check is to be sent,
if repaid:
Principal amount to be repaid if
amount to be repaid is pursuant ____________________________________________
to clause (i) above and is less
than the entire principal ____________________________________________
amount of this Note (principal
amount remaining must be an
authorized denomination)
$________________________________
(which will be an integral SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
multiple of $1,000)
____________________________________________
Denomination or denominations of
the Note or Notes to be issued
for the portion of this Note
not being repaid pursuant to
clause (i) above
________________________________
________________________________
</TABLE>
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT Custodian
--------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
--------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _______________________ _____________________________________________
Signature
Sign exactly as name appears on the front of
this Note [SIGNATURE MUST BE GUARANTEED by a
member of a recognized Medallion Guarantee
Program]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
Exhibit 5
[LOGO OF FIRST
DATA CORP.
APPEARS HERE]
April 7, 1997
401 Hackensack Avenue
Hackensack, New Jersey 07601
Re: Registration Statement of Form S-3
of First Data Corporation
----------------------------------
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by First Data Corporation, a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
$750,000,000 aggregate initial public offering price of (a) shares of its common
stock, par value $.01 per share ("Common Stock"), (b) shares of its preferred
stock, par value $1.00 per share ("Preferred Stock"), in one or more series, and
(c) unsecured debt securities ("Debt Securities", and, collectively with the
Common Stock and Preferred Stock, the "Securities"). The Securities were
authorized for issuance, offering and sale by the Board of Directors of the
Company by resolutions duly adopted on December 12, 1996 (the "Resolutions").
The Debt Securities specified as Senior Securities in the applicable prospectus
supplement (as supplemented by any applicable pricing supplement relating
thereto, the "Prospectus Supplement") will be issued under an Indenture dated as
of March 26 1993 between the Company and Norwest Bank Minnesota, National
Association, as Trustee (such Indenture, as amended from time to time, the
"Senior Indenture"). The Debt Securities specified as Subordinated Securities in
the applicable Prospectus Supplement will be issued under an Indenture dated as
of April 1, 1996 between the Company and The Bank of New York, as Trustee (such
Indenture as amended or supplemented from time to time the "Subordinated
Indenture"). All capitalized terms not otherwise defined herein have the meaning
set forth in the Registration Statement.
I am familiar with the proceedings to date with respect to the proposed
issuance and sale of the Securities and have examined such records, documents
and questions of law, and satisfied myself as to such matters of fact, as I have
considered relevant and necessary as a basis for this opinion. I have assumed
the authenticity of all documents submitted to me as originals, the genuineness
of all signatures, the legal capacity of all natural persons and the conformity
with the original documents of any copies thereof submitted to me for my
examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. The Common Stock will be legally issued, fully paid and non-assesable
when (i) the Registration Statement, as finally amended, shall have become
effective under the Securities Act, (ii) the issuance and sale of the Common
Stock shall have been approved in accordance with the Resolutions as
contemplated by the Registration Statement and any applicable Prospectus
<PAGE>
First Data Corporation
April 7, 1997
Page 2
Supplement and (iii) certificates representing the Common Stock shall have been
duly executed, countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor (but not less than
the par value) in accordance with the applicable underwriting, purchase or
similar agreement.
3. Each series of Preferred Stock will be legally issued, fully paid and
non-assesable when (i) the Registration Statement, as finally amended, shall
have become effective under the Securities Act, (ii) the terms of such series of
Preferred Stock shall have been established and approved in accordance with the
Resolutions, as contemplated by the Registration Statement and any applicable
Prospectus Supplement, (iii) a Certificate of Designations setting forth the
terms of such series of Preferred Stock shall have been executed, acknowledged,
filed and recorded and shall have become effective in accordance with Section
103 of the General Corporation Law of the State of Delaware, and (iv)
certificates representing such series of Preferred Stock shall have been duly
executed, countersigned and registered and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor (but not less than
the par value) in accordance with the applicable underwriting, purchase or
similar agreement.
4. The Company has the corporate power and authority to execute and
deliver the Senior Indenture and the Subordinated Indenture and has the
corporate power and authority to authorize and sell the Debt Securities.
5. Each of Senior Securities will be legally issued and binding
obligations of the Company when (i) the Registration Statement, as finally
amended, shall have become effective under the Securities Act, (ii) the Senior
Indenture including any necessary supplemental indenture, shall have been
qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), (iii)
any necessary supplemental indenture to the Senior Indenture shall have been
duly executed and delivered by the Company and the trustee thereunder (iv) the
terms of such series of Senior Securities shall have been established and
approved in accordance with the Resolutions as contemplated by the Registration
Statement, any applicable Prospectus Supplement and the Senior Indenture, and
(v) such series of Senior Securities shall have been duly executed and
authenticated as provided in the Senior Indenture and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor in
accordance with the applicable underwriting, purchase or similar agreement.
6. Each series of Subordinated Securities will be legally issued and
binding obligation of the Company when (i) the Registration Statement, as
finally amended, shall have become effective under the Securities Act, (ii) the
Subordinated Indenture, including any necessary supplemental indenture, shall
have been qualified under the TIA, (iii) the Subordinated Indenture,
including any necessary supplemental indenture to the Subordinated Indenture,
shall have been duly executed and delivered by the Company and the trustee
thereunder, (iv) the terms of such series of Subordinated Securities shall have
been established and approved in accordance with the Resolutions, as
contemplated by the Registration Statement, any applicable Prospectus Supplement
and the Subordinated Indenture, and (v) such series of Subordinated Securities
shall have been duly executed and authenticated as provided in the Subordinated
Indenture and duly delivered to the purchasers thereof against payment of the
agreed consideration therefor in accordance with the applicable underwriting,
purchase or similar agreement.
<PAGE>
First Data Corporation
April 7, 1997
Page 3
The opinions set forth in paragraphs 5 and 6 are subject to the
qualification that enforceability may be limited by (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws of
general applicability relating to or affecting the enforcement of creditors
rights, (ii) general principals of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law), (iii) any requirement that a
claim with respect to any Debt Security denominated in other than U.S. dollars
(or a judgement denominated in other than U.S. dollars in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on a date
determined in accordance with applicable law and (iv) governmental authority to
limit, delay or prohibit the making of payments outside of the United States or
in a foreign currency or currency unit. For purposes of paragraphs 5 and 6, I
have assumed the due authorization, execution and delivery of the Senior
Indenture and the Subordinated Indenture, as the case may be, by the applicable
trustee.
I do not find it necessary for the purposes of this opinion to cover,
and accordingly I express no opinion as to the application of the securities or
blue sky laws of the various states to the sale of any Securities.
This opinion is limited to the General Corporation law of the State of
Delaware. For purposes of rendering the opinions contained in paragraphs 5 and 6
as to the enforceability of the Senior Securities and the Subordinated
Securities, respectively, I have assumed that the substantive laws of the
State of New York are identical to the substantive laws of the State of
Nebraska. The opinion and statements expressed herein are as of the date hereof.
I assume no obligation to update or supplement this opinion letter to reflect
any facts or circumstance which may hereafter come to my attention with
respect to such opinions and statements, including any changes in applicable law
which may hereafter occur.
I hereby consent to the filing of this opinion with the SEC as an
exhibit to the Registration Statement and to the reference made to me under the
heading "Legal Matters" set forth in the prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ Thomas A. Rossi
Thomas A. Rossi, Esq.
Associate General Counsel
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of First Data
Corporation, for the registration of up to $750 million in debt securities,
preferred stock and/or common stock and to the incorporation by reference
therein of our report dated February 5, 1997, with respect to the consolidated
financial statements and schedule of First Data Corporation included in its
Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
New York, New York
April 1, 1997
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
First Data Corporation on Form S-3 of our report dated January 27, 1995
(relating to the consolidated financial statements for First Financial
Management Corporation for the year ended December 31, 1994, which are not
presented separately) appearing in the Annual Report on Form 10-K of First Data
Corporation for the year ended December 31, 1996 and to the reference to us
under the heading "Experts" in the Prospectus relating to First Data
Corporation's registration of up to $750 million in unsecured debt securities,
preferred stock, and/or common stock which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
April 1, 1997
<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
_____________________________
_____ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. National Banking Association 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
_____________________________
First Data Corporation
(Exact name of obligor as specified in its charter)
Delaware 47-0731996
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
401 Hackensack Avenue
Hackensack, New Jersey 07601
(Address of principal executive offices) (Zip code)
_____________________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank incorporates
by reference into this Form T-1 the exhibits
attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28, 1872,
by the Comptroller of the Currency to The
Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of the
Currency dated January 2, 1934, approving the
consolidation of The Northwestern National Bank of
Minneapolis and The Minnesota Loan and Trust
Company of Minneapolis, with the surviving entity
being titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting Comptroller
of the Currency dated January 12, 1943, as to
change of corporate title of Northwestern National
Bank and Trust Company of Minneapolis to
Northwestern National Bank of Minneapolis.*
<PAGE>
d. A copy of the letter dated May 12, 1983 from the Regional
Counsel, Comptroller of the Currency, acknowledging receipt
of notice of name change effective May 1, 1983 from
Northwestern National Bank of Minneapolis to Norwest Bank
Minneapolis, National Association.*
e. A copy of the letter dated January 4, 1988 from the
Administrator of National Banks for the Comptroller of the
Currency certifying approval of consolidation and merger
effective January 1, 1988 of Norwest Bank Minneapolis,
National Association with various other banks under the
title of "Norwest Bank Minnesota, National Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the Federal
Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b) of the
Act.
Exhibit 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with registration
statement number 33-66026.
** Incorporated by reference to exhibit number 7 to the Trustee's Form T-
1 filed as exhibit 25.2 to Current Report on Form 8-K dated February
5, 1997 of Chase Manhattan Bank USA, N.A. file number 333-07575.
<PAGE>
EXHIBIT 6
April 1, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Curtis D. Schwegman
Curtis D. Schwegman
Assistant Vice President
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 1st day of April, 1997.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Curtis D. Schwegman
Curtis D. Schwegman
Assistant Vice President
<PAGE>
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT
TO RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
FIRST DATA CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 47-0731996
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
401 Hackensack Avenue
Hackensack, New Jersey 07601
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of March, 1997.
THE BANK OF NEW YORK
By: /s/ PAUL J. SCHMALZEL
------------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin..................... $ 4,404,522
Interest-bearing balances............. 732,833
Securities:
Held-to-maturity securities........... 789,964
Available-for-sale securities......... 2,005,509
Federal funds sold in domestic offices
of the bank:
Federal funds sold...................... 3,364,838
Loans and lease financing
receivables:
Loans and leases, net of unearned
income.............................. 28,728,602
LESS: Allowance for loan and
lease losses........................ 584,525
LESS: Allocated transfer risk
reserve............................. 429
Loans and leases, net of unearned
income, allowance, and reserve 28,143,648
Assets held in trading accounts......... 1,004,242
Premises and fixed assets (including
capitalized leases)................... 605,668
Other real estate owned................. 41,238
Investments in unconsolidated
subsidiaries and associated
companies............................. 205,031
Customers' liability to this bank on
acceptances outstanding............... 949,154
Intangible assets....................... 490,524
Other assets............................ 1,305,839
-----------
Total assets............................ $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices................... $20,441,318
Noninterest-bearing................... 8,158,472
Interest-bearing...................... 12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 11,710,903
Noninterest-bearing................... 46,182
Interest-bearing...................... 11,664,721
Federal funds purchased in
domestic offices of the
bank:
Federal funds purchased............... 1,565,288
Demand notes issued to the U.S.
Treasury.............................. 293,186
Trading liabilities..................... 826,856
Other borrowed money:
With original maturity of one year
or less............................. 2,103,443
With original maturity of more than
one year............................ 20,766
Bank's liability on acceptances
executed and outstanding.............. 951,116
Subordinated notes and debentures....... 1,020,400
Other liabilities....................... 1,522,884
-----------
Total liabilities....................... 40,456,160
-----------
EQUITY CAPITAL
Common stock............................ 942,284
Surplus................................. 525,666
Undivided profits and capital
reserves.............................. 2,129,376
Net unrealized holding gains
(losses) on available-for-sale
securities............................ ( 2,073)
Cumulative foreign currency
translation adjustments............... ( 8,403)
-----------
Total equity capital.................... 3,586,850
-----------
Total liabilities and equity capital ... $44,043,010
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
