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Exhibit 4.1
COMMERCIAL PAPER DEALER
AGREEMENT
4(2)
PROGRAM
between
CME GROUP INC., as
Issuer
and
LEHMAN BROTHERS INC., as
Dealer
Concerning Notes to be issued
pursuant to an Issuing and Paying Agency Agreement dated as of
August 16, 2007 between the Issuer and JPMorgan Chase Bank,
National Association, as Issuing and Paying Agent
Dated as of
August 16,
2007
Commercial Paper Dealer
Agreement
4(2) Program
This agreement (as amended, supplemented
or otherwise modified and in effect from time to time, the
“Agreement”) sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in
connection with the issuance and sale by the Issuer of its
short-term promissory notes (the “Notes”) through the
Dealer.
Certain terms used in this Agreement are
defined in Section 6 hereof.
The Addendum to this Agreement, and any
Annexes or Exhibits described in this Agreement or such Addendum,
are hereby incorporated into this Agreement and made fully a part
hereof.
| 1. |
Offers, Sales and Resales of Notes. |
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1.1 |
While (i) the Issuer has and shall have no obligation to
sell the Notes to the Dealer or to permit the Dealer to arrange any
sale of the Notes for the account of the Issuer, and (ii) the
Dealer has and shall have no obligation to purchase the Notes from
the Issuer or to arrange any sale of the Notes for the account of
the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of
Notes by the Issuer, such Notes will be purchased or sold by the
Dealer in reliance on the representations, warranties, covenants
and agreements of the Issuer contained herein or made pursuant
hereto and on the terms and conditions and in the manner provided
herein. |
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1.2 |
So long as this Agreement shall remain in effect, and in
addition to the limitations contained in Section 1.7 hereof,
the Issuer shall not, without the consent of the Dealer, offer,
solicit or accept offers to purchase, or sell, any Notes except
(a) in transactions with one or more dealers which may from
time to time after the date hereof become dealers with respect to
the Notes by executing with the Issuer one or more agreements which
contain provisions substantially identical to those contained in
Section 1 of this Agreement, of which the Issuer hereby
undertakes to provide the Dealer prompt notice or (b) in
transactions with the other dealers listed on the Addendum hereto,
which are executing agreements with the Issuer which contain
provisions substantially identical to Section 1 of this
Agreement contemporaneously herewith. In no event shall the Issuer
offer, solicit or accept offers to purchase, or sell, any Notes
directly on its own behalf in transactions with persons other than
broker-dealers as specifically permitted in this
Section 1.2. |
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1.3 |
The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such
interest rates, if interest bearing, or will be sold at such
discount from their face amounts, as shall be agreed upon by the
Dealer and the Issuer, shall have a maturity not exceeding 397 days
from the date of issuance and may have such terms as are specified
in Exhibit C hereto or the Private Placement Memorandum. The Notes
shall not contain any provision for extension, renewal or automatic
“rollover.” |
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1.4 |
The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency
Agreement, and the Notes shall be either individual physical
certificates or book-entry notes evidenced by one or more master
notes (each, a “Master Note”) registered in the name of
The Depository Trust Company (“DTC”) or its
nominee. |
n Commercial Paper
Dealer Agreement 4(2) Program n 2
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1.5 |
If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged
by the Dealer (including, but not limited to, agreement with
respect to the date of issue, purchase price, principal amount,
maturity and interest rate or interest rate index and margin (in
the case of interest-bearing Notes) or discount thereof (in the
case of Notes issued on a discount basis), and appropriate
compensation for the Dealer’s services hereunder) pursuant to
this Agreement, the Issuer shall cause such Note to be issued and
delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the
purchaser thereof, either directly or through the Dealer, to the
Issuing and Paying Agent, for the account of the Issuer. Except as
otherwise agreed, in the event that the Dealer is acting as an
agent of the Issuer and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for
settlement, the Dealer shall promptly notify the Issuer, and if the
Dealer has theretofore paid the Issuer for the Note, the Issuer
will promptly return such funds to the Dealer against its return of
the Note to the Issuer, in the case of a certificated Note, and
upon notice of such failure in the case of a book-entry Note. If
such failure occurred for any reason other than default by the
Dealer, the Issuer shall reimburse the Dealer on an equitable basis
for the Dealer’s loss of the use of such funds for the period
such funds were credited to the Issuer’s account. |
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1.6 |
The Dealer and the Issuer hereby establish and agree to observe
the following procedures in connection with offers, sales and
subsequent resales or other transfers of the Notes: |
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(a) |
Offers and sales of the Notes by or through the Dealer shall be
made by the Dealer only to: (i) investors reasonably believed
by the Dealer to be Qualified Institutional Buyers or Institutional
Accredited Investors and (ii) non-bank fiduciaries or agents
that will be purchasing Notes for one or more accounts, each of
which is reasonably believed by the Dealer to be an Institutional
Accredited Investor. |
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(b) |
Resales and other transfers of the Notes by the holders thereof
shall be made only in accordance with the restrictions in the
legend described in clause (e) below. |
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(c) |
No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the
generality of the foregoing, the Issuer shall not issue any press
release or place or publish any “tombstone” or other
advertisement relating to the Notes without promptly providing
notice to the Dealer. The Dealer shall not issue any press release
or publish any “tombstone” or other advertisement
relating to the Notes without the prior written consent of the
Issuer. |
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(d) |
No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a
smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or
face amount of Notes. |
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(e) |
Offers and sales of the Notes by the Issuer through the Dealer
acting as agent for the Issuer shall be made in accordance with
Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto.
A legend substantially to the effect of such Exhibit A shall appear
as part of the Private Placement Memorandum used in connection with
offers and sales of Notes hereunder, as well as on each individual
certificate representing a Note and each Master Note representing
book-entry Notes offered and sold pursuant to this
Agreement. |
n Commercial Paper
Dealer Agreement 4(2) Program n 3
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(f) |
The Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of
the then-current Private Placement Memorandum unless such purchaser
has previously received a copy of the Private Placement Memorandum
as then in effect. The Private Placement Memorandum shall expressly
state that any person to whom Notes are offered shall have an
opportunity to ask questions of, and receive information from, the
Issuer and the Dealer and shall provide the names, addresses and
telephone numbers of the persons from whom information regarding
the Issuer may be obtained. |
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(g) |
The Issuer agrees, for the benefit of the Dealer and each of
the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to
Section 13 or 15(d) of the Exchange Act, the Issuer will
furnish, upon request and at its expense, to the Dealer and to
holders and prospective purchasers of Notes information required by
Rule 144A(d)(4)(i) in compliance with Rule 144A(d). |
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(h) |
In the event that any Note offered or to be offered by the
Dealer would be ineligible for resale under Rule 144A, the Issuer
shall immediately notify the Dealer (by telephone, confirmed in
writing) of such fact and shall promptly prepare and deliver to the
Dealer an amendment or supplement to the Private Placement
Memorandum describing the Notes that are ineligible, the reason for
such ineligibility and any other relevant information relating
thereto. |
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(i) |
Dealer hereby agrees with the Issuer not to offer or sell any
Notes in a manner that might call into question the availability of
the private offering exemption contained in Section 4(2) of
the Securities Act and Rule 144A thereunder. |
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1.7 |
The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as
follows: |
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(a) |
The Issuer hereby confirms to the Dealer that within the
preceding six months, neither the Issuer nor any person other than
the Dealer or the other dealers referred to in Section 1.2
hereof acting on behalf of the Issuer has offered or sold any
Notes, or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any
person other than the Dealer or the other dealers referred to in
Section 1.2 hereof. The Issuer also agrees that (except as
permitted by Section 1.6(i)), as long as the Notes are being
offered for sale by the Dealer and the other dealers referred to in
Section 1.2 hereof as contemplated hereby and until at least
six months after the offer of Notes hereunder has been terminated,
neither the Issuer nor any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof (except as
contemplated by Section 1.2 hereof) will offer the Notes or
any substantially similar security of the Issuer for sale to, or
solicit offers to buy any such security from, any person other than
the Dealer or the other dealers referred to in Section 1.2
hereof, it being understood that such agreement is made with a view
to bringing the offer and sale of the Notes within the exemption
provided by Section 4(2) of the Securities Act and Rule 506
thereunder and shall survive any termination of this Agreement. The
Issuer hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any action that
would cause the offering and sale of Notes hereunder to be
integrated with any other offering of securities, whether such
offering is made by the Issuer or some other party or
parties. |
n Commercial Paper
Dealer Agreement 4(2) Program n 4
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(b) |
Except with previous notification to the Dealer, the Issuer
represents and agrees that the proceeds of the sale of the Notes
are not currently contemplated to be used for the purpose of
buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. The Issuer will use the
net proceeds from the sale of the Notes to fund the tender offer
for certain shares of the Issuer’s common stock, fees and
expenses relating to the tender offer and to the Issuer’s
merger with CBOT Holdings Inc. and for other general corporation
purposes. Except as set forth in the preceding sentence, in the
event that the Issuer determines to use such proceeds for the
purpose of buying, carrying or trading securities, whether in
connection with an acquisition of another company or otherwise, the
Issuer shall give the Dealer at least five business days’
prior written notice to that effect. The Issuer shall also give the
Dealer prompt notice of the actual date that it commences to
purchase such securities with the proceeds of the Notes.
Thereafter, in the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation T and
the interpretations thereunder, the Dealer will sell such Notes
either (i) only to offerees it reasonably believes to be
Qualified Institutional Buyers or to Qualified Institutional Buyers
it reasonably believes are acting for other Qualified Institutional
Buyers, in each case in accordance with Rule 144A or (ii) in a
manner which would not cause a violation of Regulation T and the
interpretations thereunder. |
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1.8 |
The Dealer hereby agrees with the Issuer that the Dealer will
not offer or sell any Notes in a manner that contradicts, in any
material respect, the Issuer Information. |
| 2. |
Representations and Warranties of Issuer. |
The Issuer represents and
warrants that each acceptance by the Issuer of an offer for the
purchase of Notes shall be deemed an affirmation by the Issuer that
its representations and warranties set forth in this Article 2 are
true and correct at the time of such acceptance:
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2.1 |
The Issuer is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and has all the requisite power and authority to
execute, deliver and perform its obligations under the Notes, this
Agreement and the Issuing and Paying Agency Agreement. |
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2.2 |
This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and
constitute legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law). |
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2.3 |
The Notes have been duly authorized, and when issued as
provided in the Issuing and Paying Agency Agreement, will be duly
and validly issued and will constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights
generally, and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law). |
n Commercial Paper
Dealer Agreement 4(2) Program n 5
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2.4 |
The offer and sale of the Notes in the manner contemplated
hereby do not require registration of the Notes under the
Securities Act, pursuant to the exemption from registration
contained in Section 4(2) thereof, and no indenture in respect
of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended. |
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2.5 |
The Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the
Issuer. |
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2.6 |
No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the
SEC, is required to authorize, or is otherwise required in
connection with the execution, delivery or performance of, this
Agreement, the Notes or the Issuing and Paying Agency Agreement,
except as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes. |
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2.7 |
Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes
in accordance with the Issuing and Paying Agency Agreement, nor the
fulfillment of or compliance with the terms and provisions hereof
or thereof by the Issuer, will (i) result in the creation or
imposition of any mortgage, lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or a default
under any of the terms of the Issuer’s charter documents or
by-laws, any contract or instrument to which the Issuer is a party
or by which it or its property is bound, or any law or regulation,
or any order, writ, injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which it or
its property is bound, which breach or default might have a
material adverse effect on the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and
Paying Agency Agreement. |
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2.8 |
There is no litigation or governmental proceeding pending, or
to the knowledge of the Issuer threatened, against or affecting the
Issuer or any of its subsidiaries which might result in a material
adverse change in the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and
Paying Agency Agreement. |
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2.9 |
The Issuer is not an “investment company” within
the meaning of the Investment Company Act of 1940, as
amended. |
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2.10 |
Neither the Private Placement Memorandum nor the Issuer
Information contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not
misleading. |
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2.11 |
Each
(a) issuance of Notes by the Issuer hereunder and
(b) amendment or supplement of the Private Placement
Memorandum shall be deemed a representation and warranty by the
Issuer to the Dealer, as of the date thereof, that, both before and
after giving effect to such issuance and after giving effect to
such amendment or supplement, (i) the representations and
warranties given by the Issuer set forth in this Section 2
remain true and correct on and as of such date as
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n Commercial Paper
Dealer Agreement 4(2) Program n 6
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if made on and as of such
date, (ii) in the case of an issuance of Notes, the Notes
being issued on such date have been duly and validly issued and
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law),
(iii) in the case of an issuance of Notes, since the date of
the most recent Private Placement Memorandum, there has been no
material adverse change in the condition (financial or otherwise)
or operations of the Issuer which has not been disclosed to the
Dealer in writing and (iv) the Issuer is not in default of any
of its obligations hereunder, under the Notes or the Issuing and
Paying Agency Agreement.
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| 3. |
Covenants and Agreements of Issuer. |
The Issuer covenants and
agrees that:
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3.1 |
The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any
amendment to, modification of or waiver with respect to, the Notes
or the Issuing and Paying Agency Agreement, including a complete
copy of any such amendment, modification or waiver. |
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3.2 |
The Issuer shall, whenever there shall occur any change in the
Issuer’s condition (financial or otherwise) or operations or
any development or occurrence in relation to the Issuer that would
have a material adverse effect on the holders of the Notes or on
potential holders of the Notes, promptly, and in any event prior to
any subsequent issuance of Notes hereunder, notify the Dealer (by
telephone, confirmed in writing) of such change, development or
occurrence. |
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3.3 |
The Issuer shall from time to time furnish to the Dealer such
public information as the Dealer may reasonably request regarding
(i) the Issuer’s operations and financial condition,
(ii) the due authorization and execution of the Notes and
(iii) the Issuer’s ability to pay the Notes as they
mature. |
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3.4 |
The Issuer will take all such action as the Dealer may
reasonably request to ensure that each offer and each sale of the
Notes will comply with any applicable state Blue Sky laws;
provided, however, that the Issuer shall not be obligated to file
any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified or subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject. |
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3.5 |
The Issuer will not be in default of any of its obligations
hereunder, under the Notes or under the Issuing and Paying Agency
Agreement, at any time that any of the Notes are
outstanding. |
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3.6 |
The Issuer
shall not issue Notes hereunder until the Dealer shall have
received (a) an opinion of counsel to the Issuer, addressed to
the Dealer, reasonably satisfactory in form and substance to the
Dealer, (b) a copy of the executed Issuing and Paying Agency
Agreement as then in effect, (c) a copy of resolutions adopted
by the Board of Directors of the Issuer, reasonably satisfactory in
form and substance to the Dealer and certified by the Secretary or
similar officer of the Issuer, authorizing execution and delivery
by the Issuer of this Agreement, the Issuing and Paying Agency
Agreement and the Notes and consummation by the Issuer of the
transactions
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n Commercial Paper
Dealer Agreement 4(2) Program n 7
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contemplated hereby and
thereby, (d) prior to the issuance of any book-entry Notes
represented by a master note registered in the name of DTC or its
nominee, a copy of the executed Letter of Representations among the
Issuer, the Issuing and Paying Agent and DTC and of the executed
master note, (e) prior to the issuance of any Notes in
physical form, a copy of such form (unless attached to this
Agreement or the Issuing and Paying Agency Agreement),
(f) confirmation of the then current rating assigned to the
Notes by each nationally recognized statistical rating organization
then rating the Notes, and (g) such other certificates,
opinions, letters and documents as the Dealer shall have reasonably
requested.
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3.7 |
The Issuer shall reimburse the Dealer for all of the
Dealer’s reasonable out-of-pocket expenses related to this
Agreement, including expenses incurred in connection with its
preparation and negotiation, and the transactions contemplated
hereby (including, but not limited to, the printing and
distribution of the Private Placement Memorandum), and, if
applicable, for the reasonable fees and out-of-pocket expenses of
the Dealer’s counsel. |
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4.1 |
The Private Placement Memorandum and its contents (other than
the Dealer Information) shall be the sole responsibility of the
Issuer. The Private Placement Memorandum shall contain a statement
expressly offering an opportunity for each prospective purchaser to
ask questions of, and receive answers from, the Issuer concerning
the offering of Notes and to obtain relevant additional information
which the Issuer possesses or can acquire without unreasonable
effort or expense. |
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4.2 |
The Issuer agrees to promptly furnish the Dealer the Issuer
Information as it becomes available. |
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4.3 |
(a) The Issuer further agrees to notify the Dealer promptly
upon the occurrence of any event relating to or affecting the
Issuer that would cause the Issuer Information then in existence to
include an untrue statement of a material fact or to omit to state
a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they are made,
not misleading. The Dealer agrees that, upon such notification, all
solicitations and sales of Notes shall be suspended. |
(b) In the event that the
Issuer gives the Dealer notice pursuant to Section 4.3(a) and
the Dealer notifies the Issuer that it then has Notes it is holding
in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement
Memorandum, as amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the
Issuer shall make such supplement or amendment available to the
Dealer.
(c) In the event that
(i) the Issuer gives the Dealer notice pursuant to
Section 4.3(a), (ii) the Dealer does not notify the
Issuer that it is then holding Notes in inventory and
(iii) the Issuer chooses not to promptly amend or supplement
the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be
suspended until such time as the Issuer has so amended or
supplemented the Private Placement Memorandum, and made such
amendment or supplement available to the Dealer.
(d) Without limiting the
generality of Section 4.3(a), the Issuer shall review, amend
and supplement the Private Placement Memorandum on a periodic
basis, but no less than at least once annually, to incorporate
current financial information of the Issuer to the extent necessary
to ensure that the information provided in the Private Placement
Memorandum is accurate and complete.
n Commercial Paper
Dealer Agreement 4(2) Program n 8
| 5. |
Indemnification and Contribution. |
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5.1 |
The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other
entity controlling the Dealer, any affiliate of the Dealer or any
such controlling entity and their respective directors, officers,
employees, partners, incorporators, shareholders, servants,
trustees and agents (hereinafter the “Lehman
Indemnitees”) against any and all liabilities, penalties,
suits, causes of action, losses, damages, claims, costs and
expenses (including, without limitation, reasonable fees and
disbursements of counsel) or judgments of whatever kind or nature
(each a “Claim”), imposed upon, incurred by or asserted
against the Lehman Indemnitees arising out of or based upon
(i) any allegation that the Private Placement Memorandum, the
Issuer Information or any other written information provided by the
Issuer to the Dealer included (as of any relevant time) or includes
an untrue statement of a material fact or omitted (as of any
relevant time) or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading or (ii) arising out of or
based upon the breach by the Issuer of any agreement, covenant or
representation made in or pursuant to this Agreement which has a
material adverse effect on the Dealer or on the holders of the
Notes; provided that this indemnification shall not apply to the
extent that the Claim arises out of or is based upon Dealer
Information. For the avoidance of doubt, it is agreed that Dealer
Information consists of the logo of the Dealer and the contact
information to obtain additional information, in each case as
provided in the Private Placement Memorandum. Notwithstanding the
foregoing, it is agreed that the obligations of the Issuer under
this Section 5 shall not extend to the Dealer’s gross
negligence or willful misconduct in the performance of its
obligations under this Agreement. |
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5.2 |
The Dealer will indemnify and hold harmless the Issuer, each
individual, corporation, partnership, trust, association or other
entity controlling the Issuer, any affiliate of the Issuer or any
such controlling entity and their respective directors, officers,
employees, partners, incorporators, shareholders, servants,
trustees and agents (hereinafter the “Issuer
Indemnitees” against any Claim imposed upon, incurred by or
asserted against the Issuer Indemnitees arising out of or based
upon any allegation that the Dealer Information included (as of any
relevant time) or includes an untrue statement of a material fact
or omitted (as of any relevant time) or omits to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not
misleading. |
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5.3 |
Provisions relating to claims made for indemnification under
this Section 5 are set forth on Exhibit B to this
Agreement. |
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5.4 |
In order to
provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the
Indemnitees in respect of any Claim (although otherwise applicable
in accordance with the terms of this Section 5), the Lehman
Indemnitees on the one hand, and any Issuer Indemnitees, on the
other hand, sought to be charged with any liability shall
contribute to the aggregate costs in connection with any Claim in
the proportion of their respective economic interests; provided,
however, that such contribution by the Issuer shall be in an amount
such that the aggregate costs incurred by the Dealer do not exceed
the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which
such
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n Commercial Paper
Dealer Agreement 4(2) Program n 9
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Claim relates. For
purposes of this Section 5, “economic interests”
of the Issuer Indemnitees shall be equal to the aggregate proceeds
of the Notes issued in connection with this Agreement received by
the Issuer and “economic interests” of any Lehman
Indemnitees shall be equal to the aggregate commissions and fees
earned by the Dealer hereunder.
|
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6.1 |
“Claim” shall have the meaning set forth in
Section 5.1. |
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6.2 |
“Dealer Information” shall mean material concerning
the Dealer provided by the Dealer in writing expressly for
inclusion in the Private Placement Memorandum. |
| |
6.3 |
“Exchange Act” shall mean the U.S. Securities
Exchange Act of 1934, as amended. |
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6.4 |
“Indemnitee” shall mean a Lehman Indemnitee or an
Issuer Indemnitee. |
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6.5 |
“Institutional Accredited Investor” shall mean an
institutional investor that is an accredited investor within the
meaning of Rule 501 under the Securities Act and that has such
knowledge and experience in financial and business matters that it
is capable of evaluating and bearing the economic risk of an
investment in the Notes, including, but not limited to, a bank, as
defined in Section 3(a)(2) of the Securities Act, or a savings
and loan association or other institution, as defined in
Section 3(a)(5)(A) of the Securities Act, whether acting in
its individual or fiduciary capacity. |
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6.6 |
“Issuer Indemnitees” shall have the meaning set
forth in Section 5.2. |
| |
6.7 |
“Issuer Information” at any given time shall mean
the Private Placement Memorandum together with, to the extent
applicable, (i) the Issuer’s most recent report on Form
10-K filed with the SEC and each report on Form 10-Q or 8-K filed
by the Issuer with the SEC since the most recent Form 10-K,
(ii) the Issuer’s most recent annual audited financial
statements and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above,
(iii) the Issuer’s and its affiliates’ other
publicly available recent reports, including, but not limited to,
any publicly available filings or reports provided to their
respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and
(v) any information prepared or approved in writing by the
Issuer for dissemination to investors or potential investors in the
Notes. |
| |
6.8 |
“Issuing and Paying Agency Agreement” shall mean
the issuing and paying agency agreement described on the cover page
of this Agreement, as such agreement may be amended or supplemented
from time to time. |
| |
6.9 |
“Issuing and Paying Agent” shall mean the party
designated as such on the cover page of this Agreement, as issuing
and paying agent under the Issuing and Paying Agency Agreement, or
any successor thereto in accordance with the Issuing and Paying
Agency Agreement. |
| |
6.10 |
“Lehman Indemnitees” shall have the meaning set
forth in Section 5.1. |
n Commercial Paper
Dealer Agreement 4(2) Program n 10
| |
6.11 |
“Non-bank fiduciary or agent” shall mean a
fiduciary or agent other than (a) a bank, as defined in
Section 3(a)(2) of the Securities Act, or (b) a savings
and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act. |
| |
6.12 |
“Private Placement Memorandum” shall mean offering
materials prepared in accordance with Section 4 (including
materials referred to therein or incorporated by reference therein,
if any) provided to purchasers and prospective purchasers of the
Notes, and shall include amendments and supplements thereto which
may be prepared from time to time in accordance with this Agreement
(other than any amendment or supplement that has been completely
superseded by a later amendment or supplement). |
| |
6.13 |
“Qualified Institutional Buyer” shall have the
meaning assigned to that term in Rule 144A under the Securities
Act. |
| |
6.14 |
“Rule 144A” shall mean Rule 144A under the
Securities Act. |
| |
6.15 |
“SEC” shall mean the U.S. Securities and Exchange
Commission. |
| |
6.16 |
“Securities Act” shall mean the U.S. Securities Act
of 1933, as amended. |
| |
7.1 |
Unless otherwise expressly provided herein, all notices under
this Agreement to parties hereto shall be in writing and shall be
effective when received at the address of the respective party set
forth in the Addendum to this Agreement. |
| |
7.2 |
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. |
| |
7.3 |
(a) The Issuer agrees that any suit, action or proceeding
brought by the Issuer against the Dealer in connection with or
arising out of this Agreement or the Notes or the offer and sale of
the Notes shall be brought solely in the United States federal
courts located in the Borough of Manhattan or the courts of the
State of New York located in the Borough of Manhattan. EACH OF THE
DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. |
(b) The Issuer hereby
irrevocably accepts and submits to the non-exclusive jurisdiction
of each of the aforesaid courts in personam, generally and
unconditionally, for itself and in respect of its properties,
assets and revenues, with respect to any suit, action or proceeding
in connection with or arising out of this Agreement or the Notes or
the offer and sale of the Notes.
| |
7.4 |
This Agreement may be terminated, at any time, by the Issuer,
upon one business day’s prior notice to such effect to the
Dealer, or by the Dealer upon one business day’s prior notice
to such effect to the Issuer. Any such termination, however, shall
not affect the obligations of the Issuer under Sections 3.7, 4.3, 5
and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties
made or arising prior to the termination of this
Agreement. |
n Commercial Paper
Dealer Agreement 4(2) Program n 11
| |
7.5 |
This Agreement is not assignable by either party hereto without
the written consent of the other party; provided, however, that the
Dealer may assign its rights and obligations under this Agreement
to any affiliate of the Dealer with the consent of the Issuer
(which consent shall not be unreasonably withheld). |
| |
7.6 |
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same
instrument. |
| |
7.7 |
This Agreement is for the exclusive benefit of the parties
hereto, and their respective permitted successors and assigns
hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever. |
| |
7.8 |
The Issuer acknowledges and agrees that in connection with this
purchase and sale of the Notes or any other services the Dealer may
be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the
parties or any oral representations or assurances previously or
subsequently made by the Dealer: (i) no fiduciary or agency
relationship between the Issuer and any other person, on the one
hand, and the Dealer, on the other, exists; (ii) the Dealer is
not acting as advisor, expert or otherwise, to the Issuer,
including, without limitation, with respect to the determination of
the offering price of the Notes, and such relationship between the
Issuer, on the one hand, and the Dealer, on the other, is entirely
and solely commercial, based on arms-length negotiations;
(iii) any duties and obligations that the Dealer may have to
the Issuer shall be limited to those duties and obligations
specifically stated herein; and (iv) the Dealer and their
respective affiliates may have interests that differ from those of
the Issuer. The Issuer hereby waives any claims that the Issuer may
have against the Dealer with respect to any breach of fiduciary
duty in connection with the purchase and sale of the
Notes. |
n Commercial Paper
Dealer Agreement 4(2) Program n 12
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed as of the date and year
first above written.
|
