Draft
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
Medium-Term Notes, Series H and Series I
Euro-Medium-Term Notes, Series H and Series I
GLOBAL SELLING AGENCY AGREEMENT
December 5, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(together with Salomon Brothers Inc,
the "U.S. Agents")
Salomon Brothers International Limited
Victoria Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Salomon Brothers Hong Kong Limited
Three Exchange Square
Suite 1802
HONG KONG
(together with Salomon Brothers International Limited,
the "International Agents")
Salomon Brothers Aktiengesellschaft
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇▇
(the "DM Agent")
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., a Delaware
corporation (formerly known as Salomon Inc, the "Company"),
confirms its agreement with each of you with respect to the issue
and sale by the Company of up to $11,710,346,786 (or the
equivalent thereof in one or more foreign currencies, foreign
currency units or composite currencies) aggregate principal
amount of its Medium-Term Notes, Series H and Series I, in
registered form (the "Medium-Term Notes") and Euro-Medium-Term
Notes, Series H and Series I, in bearer form (the "Euro
Medium-Term Notes"; and together with the Medium-Term Notes, the
"Notes"). It is understood that the Company may from time to time
authorize the
issuance and sale of additional amounts of the Notes and that
such Notes may be issued and sold pursuant to the terms of this
Agreement, all as though the issuance and sale of such Notes were
authorized by the Company as of the date hereof. The Notes may be
denominated in U.S. dollars, foreign currencies or composite
currencies (the "Specified Currency") as may be specified in the
applicable Pricing Supplement (as defined herein) relating to any
particular issue of Notes.
The Notes, Series H will be issued under an indenture
(the "Senior Debt Indenture") dated as of December 1, 1988, as
amended from time to time, between the Company and Citibank,
N.A., as trustee. The Notes, Series I will be issued under an
indenture (the "Subordinated Debt Indenture"; and together with
the Senior Debt Indenture, the "Indentures") dated as of December
1, 1988, as amended from time to time, between the Company and
Bankers Trust Company, as trustee (together with Citibank, N.A.,
the "Trustees"). Unless otherwise specifically provided for and
set forth in a supplement to the Prospectus referred to below,
the Medium-Term Notes will be issued in minimum denominations of
$1,000 (or the approximate equivalent thereof in the Specified
Currency) and in denominations exceeding such amount by integral
multiples of $1,000 (or the approximate equivalent thereof in the
Specified Currency) and will be issued only in fully registered
form, and the Euro Medium-Term Notes will be issued in minimum
denominations of U.S. $10,000 (or the approximate equivalent
thereof in the Specified Currency) and in denominations exceeding
such amount by integral multiples of $1,000 (or the approximate
equivalent thereof in the Specified Currency) and will be issued
only in bearer form, and the Notes will have the interest rates,
maturities, redemption provisions and other terms set forth in
the applicable Pricing Supplement (as defined herein).
The Medium-Term Notes will be issued, and the terms
thereof established, in accordance with the Indentures and the
Medium-Term Notes Administrative Procedures attached hereto as
Exhibit A (the "U.S. Procedures") (unless a Terms Agreement (as
defined in Section 2(b)) modifies or otherwise supersedes such
U.S. Procedures with respect to the Medium-Term Notes issued
pursuant to such Terms Agreement). The U.S. Procedures may only
be amended by written agreement of the Company and the U.S.
Agents after notice to, and with the approval of, the Trustees.
The Euro Medium-Term Notes will be issued, and the terms thereof
established, in accordance with the Indentures and the Euro
Medium-Term Notes Administrative Procedures attached hereto as
Exhibit B (the "Euro Procedures") (unless a Terms Agreement
modifies or otherwise supersedes such Euro Procedures with
respect to the Euro Medium-Term Notes issued pursuant to such
Terms Agreement). The Euro Procedures may only be amended by
written agreement of the Company and the International Agents
after notice to, and with the approval of, the Trustees. Any
amendment of the U.S. Procedures or of the Euro Procedures
relating to Notes denominated in Deutsche Marks ("DMs") or paying
principal or interest in DMs (collectively, "DM Notes") shall
require the approval of the DM Agent.
For purposes of this Agreement, the term "Agent" shall
refer to any one of you and to any additional agents appointed as
a party to this Agreement pursuant to Section 2(b) hereof, and
the terms "U.S. Agents", "International Agent" and "DM Agent"
shall refer to such of you as are indicated on the cover page of
this Agreement and any such additional Agents appointed as such
pursuant to Section 2(c) hereof, each acting solely in its
capacity as agent for the Company pursuant to Section 2(a) and
not as principal; the term "Purchaser" shall refer to one of you
acting solely as principal pursuant to Section 2(b) and not as
agent; and the term "you" shall refer to you and any other Agent
collectively, whether at any time any one of you is acting in
both such capacities or in either such capacity. In acting under
this Agreement, in whatever capacity, each of you is acting
individually and not jointly.
2
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each of you as set forth below
in this Section 1.
(a) Registration Statements (File Nos. 333-01807 and
333-38931) in respect of $11,710,346,786 aggregate principal
amount of securities of the Company, including the Notes, have
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any
post-effective amendment thereto, each in the forms heretofore
delivered or to be delivered to each of you, excluding exhibits
to such registration statements but including all documents
incorporated by reference therein, have been declared effective
by the Commission in such forms; no other document with respect
to such registration statements (other than a document
incorporated by reference therein) has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of either registration statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission (any preliminary
prospectus included in the Second Registration Statement (as
defined herein) or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"); the various parts of each
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained
in such registration statement at the time such part of such
registration statement became effective but excluding the
Statements of Eligibility under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), pertaining to the
Indenture (the "Forms T-1"), each as amended at the time such
part became effective, being hereinafter collectively called (i)
in the case of Registration Statement No. 333-01807, the "First
Registration Statement" and (ii) in the case of Registration
Statement No. 333-338931, the "Second Registration Statement;"
the First Registration Statement and the Second Registration
Statement being hereinafter called the "Registration Statements;"
the form of basic prospectus relating to the offering and sale of
Debt Securities and Index Warrants included in the Second
Registration Statement, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement being hereinafter from time
to time called the "Basic Prospectus;" the supplement to the
Prospectus relating to the Medium-Term Notes and the plan of
distribution thereof being hereinafter called the "U.S.
Prospectus Supplement," the supplement to Prospectus relating to
the Euro Medium-Term Notes and the plan of distribution thereof
being hereinafter called the "Euro Prospectus Supplement"; and
together with the U.S. Prospectus Supplement, the "Prospectus
Supplements," and the Basic Prospectus (including the U.S.
Prospectus Supplement or the Euro Prospectus Supplement, as the
case may be), being hereinafter called the "Prospectus". Any
reference herein to the Prospectus, a Preliminary Prospectus or
any Prospectus Supplement shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Prospectus,
Preliminary Prospectus or Prospectus Supplement, as the case may
be; any reference to any amendment or supplement to any
Prospectus, Preliminary Prospectus or Prospectus Supplement,
including any supplement to the Prospectus that sets forth only
the terms of a particular issue of the Notes (a "Pricing
Supplement"), shall be deemed to refer to and include any
documents filed after the date of such Prospectus, Preliminary
Prospectus or Prospectus Supplement, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Prospectus or
Prospectus Supplement, as the case may be; any reference to any
amendment to either Registration Statement shall be deemed to
include any report of the Company filed pursuant to the Exchange
Act after the effective date of such Registration Statement that
is incorporated by reference in such Registration Statement; and
any reference to the Prospectus as amended or supplemented shall
be deemed to refer to and include the Prospectus as amended or
supplemented in relation to the Notes sold pursuant to this
Agreement, in the
3
form in which it is filed with the Commission pursuant to Rule
424(b) under the Act, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, 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 Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and
incorporated by reference in the Prospectus, or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder;
(c) Each Registration Statement and the Prospectus,
and any amendment thereof or supplement thereto, and the
Indenture, conform or will conform in all material respects with
the applicable requirements of the Act and the Trust Indenture
Act, and the rules and regulations of the Commission thereunder;
(d) The First Registration Statement as of its
effective date did not, and the Second Registration Statement, as
amended as of any time, did not and will not, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and the Prospectus, as amended
and supplemented as of any such time, did not and will not
include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in
or omitted from the Second Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in
reliance upon, and in conformity with, information furnished in
writing to the Company by or on behalf of any Agent specifically
for use in the Second Registration Statement and the Prospectus
or any amendment thereof or supplement thereto;
(e) The Notes have been duly authorized and, when
executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms and
entitled to the benefits of the Indenture (subject, as to
enforcement, to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity regardless
of whether such enforceability is considered in a proceeding in
equity or at law); the Indenture has been duly authorized by the
Company and qualified under the Trust Indenture Act; and the
Indenture conforms to the descriptions thereof in the Prospectus
as amended or supplemented to relate to such issuance of Notes.
(f) Since the date of the most recent financial
statements included in the Prospectus, as amended or
supplemented, there has not been any material adverse change in
the consolidated financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, which is not
disclosed in the Prospectus, as amended or supplemented.
2. Appointment of Agents. (a) Subject to the terms and
conditions stated herein and subject to the reservation by the
Company of the right to sell Notes to any of you acting as
principal at a discount for its own account or for resale to one
or more investors or other dealers and the Company's right to
sell Notes directly to investors on its own behalf or through
other agents, the Company hereby appoints and authorizes the U.S.
Agents, the International Agents and the DM Agent to act as its
agents
4
to solicit offers for the purchase of all or part of the
Medium-Term Notes, Euro Medium-Term Notes and DM Notes,
respectively, from the Company; provided, however, that the
Company will place DM Notes only through the DM Agent, acting as
agent, and the DM Agent may itself place DM Notes with the U.S.
Agents or the International Agents; and provided, further, that
only the International Agents and DM Agent may solicit offers for
the purchase of Euro Medium-Term Notes.
Following the Commencement Date (referred to below),
the Company shall notify each Agent from time to time as to the
commencement of a period during which the Notes may be offered
and sold by the Agents (each period, commencing with such a
notification and ending at such time as the authorization for
offers and sales through the Agents shall have been suspended by
the Company or the Agents as provided hereunder, being herein
referred to as an "Offering Period"). The initial Offering Period
shall begin on December 5, 1997 (the "Commencement Date"). On the
basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the U.S. Agents,
the International Agents and the DM Agent agrees, as agent of the
Company, to use its reasonable best efforts to solicit offers to
purchase Medium-Term Notes, Euro Medium-Term Notes and DM Notes,
respectively, from the Company upon the terms and conditions set
forth in the applicable Prospectus (and any supplement thereto)
and in the U.S. or Euro Procedures, as applicable. Each Agent
shall communicate to the Company, orally or in writing, each
reasonable offer or indication of interest to purchase Notes
received by such Agent as 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
to reject, in its discretion reasonably exercised, any offer
received by it to purchase the Notes, in whole or in part, and
any such rejection shall not be deemed a breach of its agreements
contained herein. In soliciting offers to purchase the Notes in
its capacity as agent of the Company, each Agent is acting solely
as agent for the Company, and not as principal, and does not
assume any obligation toward or relationship of agency or trust
with any purchaser of the Notes (other than any such obligation
or relationship which the Agent assumes independently of this
Agreement). Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and
accepted by the Company, but such Agent shall not, except as
otherwise provided in this Agreement, be obligated to disclose
the identity of any purchaser or have any liability to the
Company in the event any such purchase is not consummated for any
reason. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that
any of you may purchase Notes as principal pursuant to Section
2(b).
The Company reserves the right, in its sole
discretion, to instruct the U.S. Agents, the International Agents
and the DM Agent to suspend at any time, for any period of time
or permanently, the solicitation of offers to purchase Notes.
Upon receipt of instructions from the Company, the U.S. Agents,
the International Agents or the DM Agent (or any or all of them),
as the case may be, will forthwith suspend solicitation of offers
to purchase Notes from the Company until such time as the Company
has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on
the Settlement Date with respect to each sale of Notes by the
Company as a result of a solicitation made by such Agent, in an
amount equal to that percentage specified in Schedule I hereto of
the aggregate principal amount of the Notes sold by the Company;
provided, however, in the case of any DM Notes, such amount shall
be divided between the DM Agent and the other Agent, if any, that
solicited the sale of such Note, in such proportion as may be
agreed upon by the DM Agent and such other Agent. Such commission
shall be payable as specified in the U.S. or Euro Procedures, as
applicable. Without the prior approval of the
5
Company, no Agent (acting on an agency basis) may reallow any
portion of the commission payable pursuant hereto to dealers or
purchasers in connection with the offer and sale of any Notes.
Subject to the provisions of this Section and to the
U.S. or Euro Procedures, as applicable, offers for the purchase
of Notes may be solicited by an Agent as agent for the Company at
such time and in such amounts as such Agent shall deem advisable.
The Company may from time to time offer Notes for sale otherwise
than through an Agent; provided, however, that so long as this
Agreement is in effect the Company shall not solicit or accept
offers to purchase Notes through any agent other than an Agent.
If the Company defaults in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company
shall indemnify and hold each of you harmless against any loss,
claim or damage arising from or as a result of such default by
the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determine that the Company
shall sell Notes directly to any of you as principal, each such
sale of Notes shall be made in accordance with the terms of this
Agreement and a supplemental agreement relating to such sale;
provided, however, that any DM Notes will be sold to the DM Agent
which may resell the DM Notes to the U.S. Agents or the
International Agents. Each such supplemental agreement (which may
be either an oral or written agreement) is herein referred to as
a "Terms Agreement". Each Terms Agreement shall describe the
Notes to be purchased by the Purchaser pursuant thereto and shall
specify the aggregate principal amount of such Notes, the price
to be paid to the Company for such Notes, the maturity date of
such Notes, the rate at which interest will be paid on such
Notes, the dates on which interest will be paid on such Notes and
the record date with respect to each such payment of interest,
such other terms of the Notes as are applicable, the Settlement
Date for the purchase of such Notes, the place of delivery of the
Notes and payment therefor, the method of payment and any
requirements for the delivery of opinions of counsel,
certificates from the Company or its officers or a letter from
the Company's independent public accountants as described in
Section 5(b). A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Agent.
Any written Terms Agreement may be in the form attached hereto as
Exhibit C. The Purchaser's commitment to purchase Notes shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject
to the terms and conditions herein set forth.
Each date of delivery of and payment for Notes to be
purchased by any of you as principal or as agent or by any other
purchaser is referred to herein as a "Settlement Date." Delivery
of the certificates for Notes sold to the Purchaser pursuant to a
Terms Agreement shall be made not later than the Settlement Date
agreed to in such Terms Agreement, against payment of funds to
the Company in the net amount due to the Company for such Notes
by the method and in the form set forth in the U.S. or Euro
Procedures, as applicable, unless otherwise agreed to between the
Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i)
shall be purchased by such Purchaser at a price equal to 100% of
the principal amount thereof less a percentage equal to the
commission applicable to an agency sale of a Note of identical
maturity and (ii) may be resold by such Purchaser at varying
prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering
price. In connection with any resale of Notes purchased, a
Purchaser may use a selling or dealer
6
group and may reallow to any broker or dealer any portion of the
discount or commission payable pursuant hereto.
(c) Additional Agents. Notwithstanding paragraph 2(a)
above, the Company may from time to time appoint one or more
additional financial institutions experienced in the distribution
of securities as a U.S. Agent, DM Agent or International Agent
under this Agreement, for the duration of this Agreement (subject
to Section 7 hereof) or on an issue by issue basis, pursuant to a
letter (an "Agent Accession Confirmation") substantially in the
form of Exhibit D or Exhibit F to this Agreement, as appropriate,
provided that any such additional party shall have first
requested appointment as such upon the terms and conditions of
this Agreement in writing to the Company pursuant to a letter (an
"Agent Accession Letter") substantially in the form of Exhibit E
or Exhibit G to this Agreement, as appropriate, whereupon it
shall, subject to the terms and conditions of this Agreement, the
relevant Agent Accession Letter and the relevant Agent Accession
Confirmation, become a party to this Agreement as a U.S. Agent, a
DM Agent, or an International Agent, as specified in the relevant
Agent Accession Letter, vested with all the authority, rights and
powers and subject to all the duties and obligations of an Agent
as if originally named as an Agent hereunder. The Company shall
promptly notify the Trustee and the other Agents of any such
appointment, but only in the event that any such additional Agent
is appointed for the duration of this Agreement.
3. Offering and Sale of Notes. The U.S. Agents, the
International Agents, the DM Agent and the Company agree to
perform the respective duties and obligations specifically
provided to be performed by them in the U.S. or Euro Procedures,
as the case may be.
In connection with any offering of Euro Medium-Term
Notes, either of the International Agents (or, in the case of DM
Notes, the DM Agent) may act as stabilizing agent (the
"Stabilizing Agent"), and as Stabilizing Agent may over-allot or
effect transactions which stabilize or maintain the market price
of the Euro Medium-Term Notes at a level which might not
otherwise prevail. Such stabilizing, if commenced, may be
discontinued at any time. The Stabilizing Agent, whose identity
shall be disclosed in the applicable supplement to the Prospectus
relating to such offering of Euro Medium-Term Notes, shall comply
with all applicable laws.
4. Agreements. (A) The Company agrees with each of
you that:
(a) At any time during an Offering Period or during
the time a prospectus relating to the Notes is required to be
delivered under the Act: (i) prior to amending or supplementing
either Registration Statement or the Prospectus, the Company will
furnish each Agent and such Agent's counsel with a copy of each
proposed amendment or supplement (other than an amendment or
supplement to be made pursuant to incorporation by reference of a
document filed under the Exchange Act, or a Pricing Supplement or
an amendment or supplement relating solely to an offering of
securities other than the Notes); and (ii) prior to filing any
documents under the Exchange Act to be incorporated by reference
into the Prospectus (other than documents relating solely to an
offering of debt securities other than the Notes), the Company
will notify each Agent and such Agent's counsel orally of the
general subject matter of such filing and will furnish copies of
such filings to each such Agent and Agent's counsel
simultaneously with, or as promptly as practicable after, the
filing of such documents with the Commission. Subject to the
foregoing sentence, the Company will promptly cause the
Prospectus together with each amendment thereof or supplement
thereto to be mailed or otherwise transmitted to the Commission
for filing pursuant to Rule 424(b) by an appropriate method or
will promptly cause the Prospectus together with each amendment
thereof or supplement thereto to be filed with the Commission
pursuant to said Rule. If the Prospectus is amended or
supplemented (other than
7
by a Pricing Supplement or an amendment or supplement relating
solely to an offering of securities other than the Notes), each
Agent shall be furnished with such information relating to such
filing as it may reasonably request, and no Agent shall be
obligated to solicit offers to purchase Notes so long as it is
not reasonably satisfied that such amendment or supplement
complies in all material respects with the provisions of the Act
and the Exchange Act. At any time during an Offering Period or
during the time a prospectus relating to the Notes is required to
be delivered under the Act, the Company will promptly advise each
Agent of (i) the filing of any amendment or supplement to the
Prospectus (other than a Pricing Supplement or an amendment or
supplement relating solely to an offering of securities other
than the Notes), (ii) the filing or effectiveness of any
amendment to either Registration Statement, (iii) the receipt by
the Company of comments from the Commission relating to or
requests by the Commission for any amendment of either
Registration Statement or any amendment of or supplement to the
Prospectus or for any additional information, (iv) the issuance
by the Commission of any stop order suspending the effectiveness
of either Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its reasonable best
efforts to prevent the issuance of any such stop order or notice
of suspension of qualification and, if issued, to obtain as soon
as possible the withdrawal thereof. Upon any Agent's request, the
Company will within a reasonable time inform such Agent of the
aggregate principal amount of Notes registered under the
Registration Statements that remain unissued.
(b) Within the time during which a prospectus relating
to the Notes is required to be delivered under the Act, the
Company will comply with all requirements imposed upon it by the
Act, as now and hereafter amended, and by the rules and
regulations of the Commission thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of
or dealings in the Notes as contemplated by the provisions hereof
and the Prospectus. If during such period any event occurs as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading,
or if, in the opinion of the Company, during such period it is
necessary to amend or supplement the Second Registration
Statement or the Prospectus to comply with the Act, the Company
will promptly notify each Agent to suspend the solicitation of
offers to purchase the Notes in its capacity as Agent and to
cease sales of any Notes it may then own as principal and, to the
extent required under the provision in the last sentence of this
subsection (b), the Company will promptly amend or supplement
such Registration Statement or the Prospectus (at the expense of
the Company) so as to correct such statement or omission or
effect such compliance. If such amendment or supplement, and any
documents, certificates, opinions and letters furnished to each
Agent pursuant to subsections (j), (k) and (1) of this Section 4
in connection with the preparation and filing of such amendment
or supplement are reasonably satisfactory in all respects to such
Agent, upon the filing of such amendment or supplement with the
Commission or effectiveness of an amendment to such Registration
Statement, such Agent will resume solicitation of offers to
purchase Notes hereunder. Notwithstanding the foregoing, the
Company shall not be required to comply with the provisions of
subsection (b) of this Section 4 during any period from the time
any Agent shall have been notified to suspend the solicitation of
offers to purchase the Notes in its capacity as Agent (whether
under this subparagraph (b) or otherwise under this Agreement) to
the time the Company shall determine that solicitation of offers
to purchase the Notes should be resumed; provided that if any
such Agent holds any Notes as principal purchased pursuant to a
Terms Agreement or otherwise pursuant to this Agreement, the
Company shall comply with the provisions of subsection (b) of
this Section 4 during the period when a Prospectus is required to
be delivered pursuant to the Act.
8
(c) The Company will (i) comply, in a timely manner,
with all applicable requirements under the Exchange Act relating to
the filing with the Commission of the Company's reports pursuant
to Section 13(a), 13(c) or 15(d) of the Exchange Act and, if then
applicable, of the Company's proxy statements pursuant to Section
14 of the Exchange Act.
(d) The Company will use its best efforts to qualify
the Notes for sale under the securities laws of such
jurisdictions as any Agent reasonably designates, to maintain
such qualifications in effect so long as required for the
distribution of the Notes and, if requested by such Agent, to
arrange for the determination of the legality of the Notes for
purchase by institutional investors, except that the Company
shall not be required in connection therewith to qualify to do
business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so
subject.
(e) The Company will furnish to each Agent copies of
the Registration Statements and the Prospectus (including all
documents incorporated by reference therein), and all amendments
of and supplements to the Registration Statements or the
Prospectus which are filed with the Commission during the period
in which a prospectus relating to the Notes is required to be
delivered under the Act (including all documents filed by an
amendment or supplement with the Commission during such period
which are deemed to be incorporated by reference therein), in
each case in such quantities as such Agent may from time to time
reasonably request.
(f) So long as any of the Notes are outstanding, the
Company agrees to furnish to each Agent, upon its reasonable
request, as soon as available, all reports and financial
statements filed by or on behalf of the Company with the
Commission or any national securities exchange.
(g) The Company will make generally available to its
security holders and to each Agent as soon as practicable, but in
any event not later than 15 months after the end of the Company's
current fiscal quarter, an earnings statement (which need not be
audited) covering a 12-month period beginning after the date upon
which any amendment of or supplement to the Prospectus (other
than a Pricing Supplement or an amendment or supplement relating
solely to an offering of debt securities other than the Notes) is
filed pursuant to Rule 424 under the Act, which shall satisfy the
provisions of Section 11(a) of the Act.
(h) The Company shall, whether or not any sale of
Notes is consummated or this Agreement is terminated, pay all
expenses incident to the performance of its obligations under
this Agreement and under any Terms Agreement, including, without
limitation, the fees and disbursements of its accountants and
counsel, the cost of printing (or other production) and delivery
of the Registration Statements and the Prospectus, all amendments
thereof and supplements thereto, the Indentures, and all other
documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements (including reasonable fees of counsel) incurred in
connection with the qualification of the Notes for sale and
determination of eligibility for investment of the Notes under
the securities or Blue Sky laws of such jurisdictions as the
Agent may designate, the fees and disbursements of the Trustees,
the fees of any agency that rates the Notes, the fees and
expenses in connection with any listing of the Notes on the
Luxembourg Stock Exchange or such other securities exchange
agreed to in writing by the Company, the fees and expenses
incurred with respect to any filing with the National Association
of Securities Dealers, Inc. and the reasonable fees and
disbursements of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as counsel for the Agents, or
other counsel reasonably satisfactory to each of the Agents and
the Company, and such other expenses, including, without
limitation, advertising expenses as may be agreed upon by the
Agents and the
9
Company; provided, however, that with respect to any purchase of
Notes by one of you as principal pursuant to a Terms Agreement,
the fees and disbursements of Cleary, Gottlieb, ▇▇▇▇▇ & Hamilton,
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, or other counsel to you
shall not be paid by the Company.
(i) During the term of this Agreement, the Company shall
furnish to each Agent such relevant documents and certificates of
officers of the Company relating to the business, operations and
affairs of the Company, the Registration Statements, the
Prospectus, any amendments thereof or supplements thereto, the
Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations
hereunder or thereunder as any Agent may from time to time
reasonably request and shall promptly notify each Agent orally,
followed by written notice of any downgrading, or of its receipt
of any notice of any intended downgrading, in the rating accorded
any of the Company's securities by ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard & Poor's Ratings Services or, if one of them no
longer rates the securities of the Company, another "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g) (2) under the Act.
(j) Each time either Registration Statement or the
Prospectus is amended or supplemented (other than by a Pricing
Supplement or an amendment or supplement relating solely to an
offering of securities other than the Notes), the Company will
deliver or cause to be delivered forthwith to such Agent a
certificate of the Company signed by either Co-Chairman of the
Board, any Vice Chairman, the Treasurer or any Vice President and
by the principal financial or accounting officer of the Company
(or another officer or officers acceptable to such Agent), dated
the date of the effectiveness of such amendment or the date of
filing with the Commission of such supplement or document, as the
case may be, in form reasonably satisfactory to such Agent, to
the effect that the statements contained in the certificate
referred to in Section 5(b) (iii) that was last furnished to such
Agent (either pursuant to Section 5(b) (iii) or pursuant to this
Section 4(j)) are true and correct at the time of the
effectiveness of such amendment or the time of filing of such
supplement or document, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to
relate to the Registration Statements, as amended at the time of
effectiveness of such amendment, and to the Prospectus, as
amended and supplemented at the date of such certificate) or, in
lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b) (iii) but modified, if
necessary, to relate to the Registration Statements, as amended
at the time of the effectiveness of such amendment, and to the
Prospectus, as amended and supplemented at the date of such
certificate.
(k) Each time either Registration Statement or the
Prospectus is amended or supplemented (other than by a Pricing
Supplement or an amendment or supplement relating solely to an
offering of securities other than the Notes), the Company shall
furnish to or cause to be furnished forthwith to such Agent the
written opinion of the General Counsel of the Company or other
counsel reasonably satisfactory to such Agent dated the date of
the effectiveness of such amendment or the date of filing with
the Commission of such supplement or document, as the case may
be, in form reasonably satisfactory to such Agent, to the effect
set forth in Exhibit C hereto. In lieu of such opinion, counsel
last furnishing such an opinion to such Agent may furnish to such
Agent a letter to the effect that such Agent may rely on such
last opinion to the same extent as though it were dated the date
of such letter and authorizing reliance on such last opinion
(except that statements in such last opinion will be deemed to
relate to the Registration Statements, as amended at the time of
the effectiveness of such amendment, and to the Prospectus, as
amended and supplemented at the date of such letter).
(l) Each time that either Registration Statement or
the Prospectus is amended or supplemented to set forth amended or
supplemental financial information (other than by a Pricing
10
Supplement or any amendment or supplement relating solely to an
offering of securities other than the Notes), the Company shall
cause Coopers & ▇▇▇▇▇▇▇ L.L.P., its independent certified public
accountants, (and to the extent necessary, as determined by the
Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP) forthwith to furnish such Agent a
letter, dated the date of the effectiveness of such amendment or
the date of filing of such supplement or document, as the case
may be, in form satisfactory to such Agent, of the same tenor as
the letter of such independent public accountants referred to in
Section 5(b)(iv) hereof but modified to relate to the
Registration Statements and Prospectus, as amended and
supplemented to the date of such letter, 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; provided, however, that if either Registration Statement
or the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information with respect to a
fiscal quarter, Coopers & ▇▇▇▇▇▇▇ L.L.P. (and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, if such firm is providing such a letter) may each limit the
scope of such letter to the unaudited financial statements
included in such amendment or supplement.
(m) Each acceptance by the Company of an offer for the
purchase of Notes and each sale of Notes to any of you as
principal shall be deemed to be an affirmation that the
representations and warranties of the Company contained in or
made pursuant to this Agreement are true and correct in all
material respects at the time of such acceptance or sale, as the
case may be, as though made at and as of such time, and an
undertaking that such representations and warranties will be true
and correct in all material respects at the time of delivery to
the purchaser or his agent, or an Agent, or any of you acting as
principal, of the Notes relating to such acceptance, as the case
may be, as though made at and as of such time (and it is
understood that such representations and warranties shall relate
to the Registration Statements and the Prospectus as amended and
supplemented to each such time).
(n) Anything to the contrary in this Section 4
notwithstanding, if, at the time of any required notice,
amendment or supplement to the Registration Statement or the
Prospectus, the Company shall have instructed the Agents to
suspend solicitation of offers to purchase the Notes in each
Agent's capacity as Agent of the Company and any Agent does not
then hold any Notes acquired by it as principal pursuant to a
Terms Agreement, the Company shall not be obligated to furnish or
cause to be furnished any notice, certificate, opinion or letter
otherwise required until such time as it shall determine that
solicitation of offers to purchase the Notes should be resumed;
and provided, further that, prior to resuming such solicitation
the Agents shall be entitled to receive any such notices,
certificates, opinions or letters not previously furnished,
accurate as of the date of such notice, certificate, opinion or
letter.
(o) The Company and its affiliates will comply with the
provisions of U.S. Treasury Regulations 1.163-5(c)(2)(i)(D)(1)
and (2).
(p) If any issue of Euro Medium-Term Notes is to be
listed on the Luxembourg Stock Exchange, as specified in the
applicable Pricing Supplement, the Company will use its best
efforts to obtain the listing of such issue of Euro Medium-Term
Notes on the Luxembourg Stock Exchange, to furnish to such
Exchange all documents, information and undertakings that may be
reasonably necessary in order to effect such listing, and to
cause such listing to be continued so long as any of the Euro
Medium-Term Notes of such issue remain outstanding.
(q) The Company or its designated agent shall submit
such reports or information as may be required from time to time
by applicable law, regulations and guidelines promulgated by
Japanese governmental and regulatory authorities in respect of
the issue and purchase of Notes denominated in Japanese yen.
11
(r) The Company will issue DM Notes in compliance with the
guidelines of the German Federal Central Bank regarding the issue
of DM-denominated debt securities (the "Guidelines").
(B) Each of the International Agents and the DM Agent
represents to and agrees with the Company that:
(a) Except to the extent permitted under U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not
offered or sold, and during the restricted period will not offer
or sell, Euro Medium-Term Notes to a person who is within the
United States or its possessions or to a United States person,
and (ii) it has not delivered and will not deliver within the
United States or its possessions definitive Euro Medium-Term
Notes that are sold during the restricted period.
(b) It has and throughout the restricted period will
have in effect procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling Euro
Medium-Term Notes are aware that such Euro-Medium-Term Notes may
not be offered or sold during the restricted period to a person
who is within the United States or its possessions or to a United
States person, except as permitted by the D Rules.
(c) If it is a United States person, it represents
that it is acquiring the Euro Medium-Term Notes for purposes of
resale in connection with their original issuance and if it
retains Euro Medium-Term Notes for its own account, it will only
do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6).
(d) With respect to each of its affiliates that
acquires Euro Medium-Term Notes from it for the purpose of
offering or selling such Euro Medium-Term Notes during the
restricted period, it repeats and confirms the representations
and agreements contained in Sections 4(B)(a), (b) and (c) on
such affiliate's behalf.
Furthermore, the International Agents and DM Agent
have not entered and will not enter into any contractual
arrangement with respect to the distribution or delivery of Euro
Medium-Term Notes, except with their affiliates or with the prior
written consent of the Company.
Terms used in this Section 4(B) have the meanings
given to them by the U.S. Internal Revenue Code and regulations
thereunder, including the D Rules. For these purposes, the
"restricted period" with respect to a Euro Medium-Term Note
generally ends upon the expiration of the 40-day period beginning
on the issue date of such Euro Medium-Term Note, unless either
International Agent or the DM Agent holds such Euro Medium-Term
Note as part of an unsold allotment or subscription, in which
case the "restricted period" continues for so long as such
International Agent or the DM Agent holds such Euro Medium-Term
Note.
(e) The terms of Notes denominated in Japanese Yen
that will be issued will be limited to those which have been
recognized by Japanese authorities.
(f) (i) It has not offered or sold and will not offer
or sell prior to the date six months after their date of issue
any Euro Medium-Term Notes, having a maturity of one year of
greater, to persons in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their business or otherwise in circumstances
which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995; (ii) it has complied with and
12
will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation
to the Euro Medium-Term Notes in, from or otherwise involving the
United Kingdom; and (iii) it has only issued or passed on and
will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Euro
Medium-Term Notes to a person who is of a kind described in
Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a
person to whom such document may otherwise lawfully be issued or
passed on.
(g) It will not offer, sell, resell or deliver any
Notes to any person in any jurisdiction if such offer, sale,
resale or delivery shall be prohibited by law or regulation.
(C) Each Agent represents to and agrees with the
Company that:
(a) It has not, directly or indirectly, offered or
sold and will not, directly or indirectly, offer or sell any Euro
Medium-Term Notes in Japan or to a resident of Japan except
pursuant to an exemption from the registration requirements of,
and otherwise in compliance with the Securities and Exchange Law
and other relevant laws and regulations of Japan. As used in this
paragraph, "resident of Japan" means any person resident in
Japan, including any corporation or other entity organized under
the laws of Japan or located in Japan.
(D) The DM Agent represents to and agrees with the
Company that:
(a) It is a credit institution according to the German
Banking Act; and
(b) It will notify the German Federal Central Bank at
the end of each month of the amounts, dates of issue and other
terms of all DM Notes issued by the Company during such month and
will provide such other information about DM Notes to the German
Central Bank as may be required.
5. Conditions to the Obligations of the Agents. Each
Agent's obligations to solicit offers to purchase Notes as agent
of the Company, any of your obligations to purchase Notes as
principal pursuant to any Terms Agreement or otherwise and the
obligation of any other Purchaser to purchase Notes from the
Company will be subject to the accuracy in all material respects
of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to
the provisions hereof and to the performance and observance by
the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of any Agent's
obligations to solicit offers to purchase Notes, at the time of
such solicitation, and, in the case of any Purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to
purchase such Notes and at the time of purchase) and (in each
case) to the following additional conditions precedent when and
as specified:
(a) On the corresponding Settlement Date:
(i) There shall not have occurred any change in
or affecting particularly the business or properties of the
Company and its subsidiaries from that set forth in the
Second Registration Statement, as amended or supplemented,
that, in the Agent's judgment, makes it impracticable to
market the Notes on the terms and in the manner
contemplated in the Prospectus except, in the case of any
purchase of Notes by any Agent as principal, as disclosed
to such Agent in writing by the Company before it accepted
the offer to purchase such Notes.
13
(ii) (A) With respect to the Medium-Term Notes:
There shall not have occurred any (x) suspension or material
limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange (whether U.S.
or foreign) or in the over-the-counter market, (y)
declaration of a general moratorium on commercial banking
activities in New York by either federal or New York state
authorities or exchange controls shall have been imposed by
the United States or by any country the currency of which
will be used to make any payment in respect of the Notes or
(z) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by
Congress or any other substantial national or international
calamity or emergency that, in the Agent's judgment, is
material and adverse and, in the case of any of the events
described in clauses (ii)(A)(x) through (z), such event
makes it, in the Agent's judgment, impracticable to market
the Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented, except, in the case
of any purchase of Notes by any Agent as principal, for any
such event occurring before the Company accepted the offer
to purchase such Notes.
(B) With respect to the Euro Medium-Term
Notes: There shall not have occurred any (x) suspension or
material limitation of trading in securities generally on
the New York Stock Exchange, London Stock Exchange or
Luxembourg Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange (whether
U.S. or foreign) or in the over-the-counter market, (y)
declaration of a general moratorium on commercial banking
activities in New York by either federal or New York state
authorities or by bank regulatory authorities in London or
Luxembourg, or exchange controls shall have been imposed by
the United States or by any country the currency of which
will be used to make any payment in respect of the Notes or
(z) any outbreak or escalation of major hostilities in
which the United States or the United Kingdom is involved,
any declaration of war by Congress or Parliament or any
other substantial national or international calamity or
emergency that, in the Agent's judgment, is material and
adverse and, in the case of any of the events described in
clauses (ii)(B)(x) through (z), such event makes it, in the
Agent's judgment, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as
amended or supplemented, except, in the case of any
purchase of Notes by any Agent as principal, for any such
event occurring before the Company accepted the offer to
purchase such Notes.
(iii) There shall not have been any downgrading,
nor any notice given of any intended downgrading, in the
rating accorded any of the Company's securities by ▇▇▇▇▇'▇
Investor Service or Standard & Poor's Corporation or, if
one of them no longer rates the securities of the Company,
another "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g) (2) under the Act, except, in the case of any
purchase of Notes by any Agent as principal, as disclosed
to the Agent in writing by the Company before it accepted
the offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the
corresponding Settlement Date:
(i) The Company shall have furnished to each
Agent the opinion of the General Counsel of the Company (or
other counsel for the Company reasonably acceptable to the
Agent) on the Commencement Date, and, on the Settlement
Date will furnish the opinion of the
14
General Counsel of the Company (or other counsel for the
Company reasonably acceptable to such Agent) and, if called
for by a Terms Agreement, the opinion of other counsel,
dated the Commencement Date or the Settlement Date, as the
case may be, to the effect set forth in Exhibit H hereto.
(ii) Each Agent shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, counsel for the Agents (or other counsel
reasonably acceptable to such Agent and the Company), an
opinion dated the Commencement Date or the Settlement Date,
as the case may be, to the effect set forth in Exhibit I
hereto.
(iii) The Company shall have furnished to the
Agent a certificate of the Company, signed by either
Co-Chairman of the Board, any Vice Chairman, the Treasurer
or any Vice President and by the principal financial or
accounting officer of the Company (or another officer or
officers acceptable to such Agent), dated the Commencement
Date or the Settlement Date, as the case may be, to the
effect that each signatory of such certificate has
carefully examined the Registration Statement, as amended
as of the date of such certificate, the Prospectus, as
amended and supplemented as of the date of such
certificate, and this Agreement and that:
(A) the representations and warranties of
the Company in this Agreement are true and correct in
all material respects on and as of the date of such
certificate with the same effect as if made on the
date of such certificate and the Company has complied
in all material respects with all the agreements and
satisfied in all material respects all the conditions
on its part to be performed or satisfied as a
condition to the obligations of such Agent under this
Agreement;
(B) no stop order suspending the
effectiveness of either Registration Statement has
been issued and no proceedings for that purpose have
been instituted or, to their knowledge, have been
threatened; and
(C) since the date of the most recent
financial statements included in the Prospectus, as
amended and supplemented, there has been no material
adverse change in the consolidated financial condition
or results of operations of the Company and its
subsidiaries, taken as a whole, which is not disclosed
in the Prospectus, as amended or supplemented.
(iv) Each of Coopers & ▇▇▇▇▇▇▇ L.L.P. (and to the
extent necessary, as determined by the Company, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP) or another nationally recognized independent
accounting firm, shall have furnished to each Agent a
letter or letters, dated the Commencement Date or the
Settlement Date, as the case may be, in form and substance
reasonably satisfactory to such Agent, to the effect set
forth in Exhibit J and Exhibit K hereto.
(v) The Company shall have furnished to each
Agent such appropriate further information, certificates
and documents as such Agent may reasonably request.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each of you against any losses,
claims, damages or liabilities, joint or several, to which each
of you may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities
15
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in either Registration Statement when it became
effective, the Second Registration Statement, when the
Prospectus, or any amendment or supplement thereto, or any
related preliminary Prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each of you for any
legal or other expenses reasonably incurred by you in connection
with investigating or defending against such loss, claim damage,
liability or action; provided, however, that (i) the Company
shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf
of any of you specifically for use in the preparation thereof,
and (ii) such indemnity with respect to any preliminary
Prospectus, the Prospectus or any preliminary supplemental
prospectus, shall not inure to the benefit of any of you (or any
person controlling you) if the Company shall have delivered
sufficient quantities of the Prospectus, as amended and
supplemented, to you within a reasonable time prior to the
earlier of the delivery of the written confirmation of the sale
of such Notes or the delivery of such Notes to the person
asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Prospectus as so amended and
supplemented (excluding documents incorporated by reference) was
not sent or given to such person by you at or prior to the
earlier of the delivery of the written confirmation of the sale
of such Notes or the delivery of such Notes to such person in any
case where such sending or giving of a prospectus is required by
the Act, and the untrue statement or omission of a material fact
contained in such preliminary prospectus, such Prospectus or such
preliminary supplemental prospectus, was corrected in the
Prospectus, as so amended and supplemented, provided to you.
(b) Each Agent will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained any part of either Registration Statement when it
became effective, or the Second Registration Statement or the
Prospectus or any amendment or supplement thereto, or any related
Preliminary Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Agent
specifically for use in the preparation thereof, and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from
any liability which the indemnifying party may have to any
indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party,
and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate
in and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnified party), and after notice from the
16
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such subsection for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this
Section 6 is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by
each of you on the other from the offering of the Notes from
which such losses, claims, damages or liabilities arose, 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 by each of you on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the by each of you on the other shall be deemed
to be in the same proportion as the total net proceeds from the
offering of the Notes from which such losses, claims, damages or
liabilities arose (before deducting expenses) received by the
Company bear to the total commissions received by each of you in
connection with such offering. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of you and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this subsection
(d) were to be determined by pro rata allocation (even if you
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any action or claim (which shall be limited as provided in
subsection (c) above if the indemnifying party has assumed the
defense of any such action in accordance with the provisions
thereof) which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), none of
you shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes sold by the
Company from which such losses, claims, damages or liabilities
arose pursuant to offers solicited by you were offered to the
public exceeds the amount of any damages which you have otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Agents'
obligations in this subsection (d) to contribute shall be several
in proportion to their respective underwriting obligations and
not joint. Promptly after receipt by an indemnified party under
this subsection (d) of the notice of the commencement of any
action against such party in respect of which a claim for
contribution may be made against an indemnifying party under this
subsection (d), such indemnified party shall notify the
indemnifying party in writing of the commencement thereof if the
notice specified in subsection (c) above has not been given with
respect to such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under this
subsection (d).
17
(e) The obligations of the Company under this Section
6 shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any of you
within the meaning of the Act or the Exchange Act; and the
obligations of each of you under this Section 6 shall be in
addition to any liability which you may otherwise have and shall
extend, upon the same terms and conditions, to each director of
the Company (including any person who, with his or her consent,
is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act or the
Exchange Act.
7. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 7. This
Agreement may be terminated by either the Company as to any Agent
or by any Agent insofar as this Agreement relates to such Agent
giving written notice of such termination to such Agent or the
Company, as the case may be. The termination of this Agreement
shall not require termination of any agreement by any of you to
purchase Notes as principal, and the termination of any such
Agreement shall not require termination of this Agreement. If
this Agreement is terminated, neither party shall have any
liability to the other party hereto, except as provided in the
first sentence of the fourth paragraph of Section 2(a), the last
proviso of Section 4(b), and Sections 4(g), 4(h), 6, 8 and 11,
and except that, if at the time of termination an offer to
purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or its agent of the Note or
Notes relating thereto has not occurred, the Company's
representations and warranties stated in Section 2 and its
obligations under the U.S. Procedures and the Euro Procedures,
and in Sections 2(c), 4(a), 4(b), 4(c), 4(e), 4(i), 4(j), 4(k),
4(1), 4(m), 4(o), 4(q), 4(r) and 5 shall also remain in full
force and effect and not be terminated until the delivery of such
Notes.
8. Representations and Indemnities to Survive. With
respect to any Agent's solicitation of offers to purchase Notes
as agent of the Company or any of your obligation to purchase
Notes as principal pursuant to any Terms Agreement or otherwise,
the respective agreements, representations, warranties,
indemnities and other statements of the Company or its officers
and of any of you set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any
investigation made by or on behalf of you or the Company or any
of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive delivery of and payment for
the Notes for a period extending to the earlier of (i) three
years from the corresponding Settlement Date for such Notes or
(ii) the expiration of any applicable statute of limitations
governing such solicitation or purchase of Notes.
9. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to an Agent,
will be mailed, delivered or telegraphed and confirmed to such
Agent, at the address specified in Schedule I hereto; or, if sent
to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
10. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 6 hereof. Nothing
expressed or implied in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors
referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein
18
contained. This Agreement and any Terms Agreement and all
conditions and provisions hereof and thereof except to the extent
provided for in Section 5 hereof are intended to be for the sole
and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No Purchaser of
Notes shall be deemed to be a successor by reason merely of such
purchase. This Agreement and the rights and obligations of any of
you hereunder may not be assigned without the prior written
consent of the Company.
11. Waivers, Etc. Neither any failure nor delay on the
part of any party to exercise any right, remedy, power or
privilege under this Agreement (singly and collectively referred
to as a "Right") shall operate as a waiver of such Right, nor
shall any single or partial exercise of any Right preclude any
other or further exercise of any Right, nor shall any waiver of
any Right with respect to any occurrence be construed as a waiver
of any Right with respect to any other occurrence.
12. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
19
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and you.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY HOLDINGS INC.
By:_______________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
SALOMON BROTHERS INC
By: _______________________
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: _______________________
SALOMON BROTHERS INTERNATIONAL LIMITED
By:________________________
SALOMON BROTHERS HONG KONG LIMITED
By:________________________
SALOMON BROTHERS AKTIENGESELLSCHAFT
By: _______________________
By: _______________________
20
SCHEDULE I
Commissions:
------------
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on
an agency basis by such Agent:
Term Commission Rate
---- ---------------
More than nine months to
less than twelve months .125%
Twelve months to less than
eighteen months .150
Eighteen months to less than
two years .200
Two years to less than
three years .250
Three years to less than
four years .350
Four years to less than
five years .450
Five years to less than
six years .500
Six years to less than
seven years .550
Seven years to less than
ten years .600
Ten years to less than
fifteen years .675
Fifteen years to less than
twenty years .700
Twenty years or longer
.750
Unless otherwise specified in the applicable Terms
Agreement, the discount or commission payable to a Purchaser
shall be determined on the basis of the commission schedule set
forth above.
Address for Notices to U.S. Agents:
-----------------------------------
Notices to Salomon Brothers Inc shall be directed to it at
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
the Medium-Term Note Department. Notices to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: MTN Product Manager.
Address for Notices to International Agents:
--------------------------------------------
Notices to Salomon Brothers International Limited shall be
directed to it at Victoria Plaza, 111 Buckingham Palace Road,
London SWIW 0SB England, Attention of MTN Desk. Notices to
Salomon Brothers Hong Limited shall be directed to it at Salomon
Brothers Hong Kong Limited, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ of Medium-Term Note Department.
Address for Notices to DM Agent:
--------------------------------
Notices to Salomon Brothers Aktiengesellschaft shall be
directed to it at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇,
▇▇▇▇▇▇▇.
EXHIBITS A-B
EXHIBIT A
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
Medium-Term Note Administrative Procedures
December 5, 1997
The Medium-Term Notes, Series H (the "Series H Notes")
and Medium-Term Notes, Series I (the "Series I Notes"; and
together with the Series H Notes, the "Notes") of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Holdings Inc. (the "Company") are to be offered on a
continuing basis. Salomon Brothers Inc and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. have
agreed, as agents, to solicit purchases of Notes issued in fully
registered form. (The term "Agent" when used in these
Administrative Procedures, means Salomon Brothers Inc or ▇▇▇▇▇
▇▇▇▇▇▇ Inc.) The Agent will not be obligated to purchase Notes
for its own account. The Notes are being sold pursuant to a
Global Selling Agency Agreement between the Company and the
agents named therein (including the Agent) dated the date hereof
(the "Agency Agreement"). The Notes have been registered with the
Securities and Exchange Commission (the "Commission"). Citibank,
N.A. is the trustee under the Indenture, dated as of December 1,
1988, as amended from time to time, under which the Series H
Notes will be issued (the "Senior Debt Indenture"). Bankers Trust
Company is the trustee (together with Citibank, N.A., the
"Trustees") under the Indenture, dated as of December 1, 1988, as
amended from time to time, under which the Series I Notes will be
issued (the "Subordinated Debt Indenture"; and together with the
Senior Debt Indenture, the "Indentures"). The Series H Notes will
constitute part of the senior debt of the Company and will rank
equally with all other unsecured and unsubordinated debt of the
Company. The Series I Notes will be subordinate and junior in the
right of payment to all Senior Indebtedness of the Company, to
the extent and in the manner set forth in the Subordinated Debt
Indenture.
The Agency Agreement provides that Notes may also be
purchased by the Agent acting solely as principal and not as
agent. In the event of any such purchase, the functions of both
the Agent and the beneficial owner under the administrative
procedures set forth below shall be performed by the Agent acting
solely as principal, unless otherwise agreed to between the
Company and the Agent acting as principal.
Each Note will be represented by either a Global
Security (as defined hereinafter) or a certificate delivered to
the Holder thereof or a Person designated by such Holder (a
"Certificated Note"). Each Global Security representing Series H
Notes will be delivered to Citibank, N.A. ("Citibank"), and each
Global Security representing Series I Notes will be delivered to
Bankers Trust Company ("Bankers Trust"), each acting as agent for
The Depository
A-1
Trust Company or any successor depository selected by the Company
("DTC", which term, as used herein, includes any successor
depository selected by the Company), and will be recorded in the
book-entry system maintained by DTC (a "Book-Entry Note"). An
owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific
terms of, the solicitation of orders by the Agent and the sale as
a result thereof by the Company are explained below.
Administrative and record-keeping responsibilities will be
handled for the Company by its Treasury Department. The Company
will advise the Agent and the Trustees in writing of those
persons handling administrative responsibilities with whom the
Agent and the Trustees are to communicate regarding orders to
purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the
offering are explained below. Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part I
hereof, as adjusted in accordance with changes in DTC's operating
requirements, and Certificated Notes will be issued in accordance
with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures
the Notes or the Prospectus Supplement relating to the Notes
shall be used herein as therein defined. Notes for which interest
is calculated on the basis of a fixed interest rate, which may be
zero, are referred to herein as "Fixed Rate Notes". Notes for
which interest is calculated on the basis of a floating interest
rate are referred to herein as "Floating Rate Notes". To the
extent the procedures set forth below conflict with the
provisions of the Notes, the Indentures, DTC's operating
requirements or the Agency Agreement, the relevant provisions of
the Notes, the Indentures, DTC's operating requirements and the
Agency Agreement shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry
Notes for eligibility in the book-entry system maintained by DTC,
Citibank and Bankers Trust (together, the "DTC Agents") will
perform the custodial, document control and administrative
functions described below for the Series H Notes and the Series I
Notes, respectively. Citibank will perform such functions in
accordance with its respective obligations under a Letter of
Representations from the Company and Citibank to DTC dated as of
the date hereof and a Medium-Term Note Certificate Agreement
between Citibank and DTC, dated as of October 31, 1988 and as
amended to date, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement system ("SDFS").
Bankers Trust will perform such functions in accordance with its
respective obligations under a Letter of Representations from the
Company and Bankers Trust to DTC
A-2
dated as of the date hereof and a Certificate Agreement between
DTC and Bankers Trust, dated as of October 21, 1988 and as
amended to date, and its obligations as a participant in DTC,
including DTC's SDFS.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to
$200,000,000 principal amount of all such Book-
Entry Notes of the same Series that have the
same Original Issue Date, Original Issue
Discount provisions, if any, Interest Payment
Dates, Regular Record Dates, Interest Payment
Period, redemption repayment and extension
provisions, if any, Stated Maturity, and, in the
case of Fixed Rate Notes, interest rate, and
amortization schedule, if any, or, in the case of
Floating Rate Notes, Initial Interest Rate, Base
Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread and/or Spread
Multiplier, if any, Minimum Interest Rate, if
any, and Maximum Interest Rate, if any and, in
each case, any other relevant terms (collectively,
the "Terms"). Each Global Security will be
dated and issued as of the date of its settlement.
Each Global Security will bear an Original Issue
Date, which will be (i) with respect to an original
Global Security (or any portion thereof), the
Original Issue Date specified in such Global
Security and (ii) following a consolidation of
Global Securities, with respect to the Global
Security resulting from such consolidation, the
most recent Interest Payment Date to which
interest has been paid or duly provided for on the
predecessor Global Securities, regardless of the
date of authentication of such resulting Global
Security. No Global Security will represent
(i) both Fixed Rate and Floating Rate Book-
Entry Notes or (ii) any Certificated Note or (iii)
both Series H Notes and Series I Notes.
A-3
Identification
Numbers: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the reservation of two series of CUSIP numbers,
one for Series H Notes and one for Series I
Notes, each of which series consists of
approximately 900 CUSIP numbers and relates
to Global Securities representing Book-Entry
Notes and book-entry medium-term notes issued
by the Company with other Series designations.
The DTC Agents, the Company and DTC have
obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers.
The DTC Agents will assign CUSIP numbers to
Global Securities as described below under
Settlement Procedure "B". DTC will notify the
CUSIP Service Bureau periodically of the
CUSIP numbers that the DTC Agents has
assigned to Global Securities. Each DTC Agent
will notify the Company at any time when fewer
than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and, if it deems
necessary, the Company will reserve additional
CUSIP numbers for assignment to Global
Securities. Upon obtaining such additional
CUSIP numbers, the Company shall deliver a list
of such additional CUSIP numbers to either or
both DTC Agents, as needed, and to DTC.
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global
Security will be registered in the name of
CEDE & CO., as nominee for DTC, on the
securities register for the Notes (the "Securities
Register") maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one
or more indirect participants in DTC designated
by such owner) will designate one or more
participants in DTC (with respect to such Book-
Entry Note, the "Participants") to act as agent or
A-4
agents for such owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such
Participants, a credit balance with respect
to such beneficial owner in such Book-Entry
Note in the account of such Participants. The
ownership interest of such beneficial owner
(or such par ticipant) in such Book-Entry
Note will be recorded through the records of
such Participants or through the separate
records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and,
in turn, by Participants (and in certain
cases, one or more indirect participants in
DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: Each DTC Agent may deliver to DTC and the
CUSIP Service Bureau at any time a written
notice of consolidation (a copy of which shall be
attached to the resulting Global Security
described below) specifying (i) the CUSIP
numbers of two or more outstanding Global
Securities that represent (A) Fixed Rate Book-
Entry Notes of the same Series and having the
same Terms and for which interest has been paid
to the same date or (B) Floating Rate Book-
Entry Notes of the same Series and having the
same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged
for a single replacement Global Security and
(iii) a new CUSIP number to be assigned to such
replacement Global Security. Upon receipt of
A-5
such a notice, DTC will send to its
participants (including the DTC Agent for
such replacement Global Security) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to
the specified exchange date, such DTC Agent
will deliver to the CUSIP Ser vice Bureau a
written notice setting forth such exchange
date and such new CUSIP number and stating
that, as of such exchange date, the CUSIP
numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, such DTC Agent will
exchange such Global Securities for a single
Global Security bearing the new CUSIP number
and a new Original Issue Date, which shall be
the last date to which interest has been paid
on the underlying Book-Entry Notes, and the
CUSIP numbers of the exchanged Global Secu
rities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not
immediately reassigned. Upon such exchange,
the DTC Agent will ▇▇▇▇ the predecessor
Global Security "canceled", make appropriate
entries in the DTC Agent's records and
destroy such canceled Global Security in
accordance with the terms of the Indenture
and deliver a certificate of destruction to
the Company. Notwithstanding the foregoing,
if the Global Securities to be exchanged
exceed $200,000,000 in aggregate principal
amount, one Global Security will be
authenticated and issued to represent each
$200,000,000 of principal amount of the
exchanged Global Securities and an additional
Global Security will be authenticated and
issued to represent any remaining principal
amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date
more than nine months after the issue date for
such Note. A Floating Rate Book-Entry Note
A-6
will mature only on an Interest Payment Date
for such Note. Any Note denominated in
Japanese yen will mature on a date not less
than one year from the Original Issue Date
(as defined below) for such Note. Any Note
denominated in Pounds Sterling will mature on
a date not less than one year, nor more than
five years, after its Original Issue Date.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any amount in excess
thereof that is an integral multiple of $1,000. If
Book-Entry Notes are denominated in a
Specified Currency other than U.S. dollars, the
denominations of such Notes will be determined
pursuant to the provisions of the applicable
Pricing Supplement. Global Securities will be
denominated in principal amounts not in excess
of $200,000,000 (or the equivalent thereof). If
one or more Book-Entry Notes having an
aggregate principal amount in excess of
$200,000,000 (or the equivalent thereof) would,
but for the preceding sentence, be represented by
a single Global Security, then one Global
Security will be authenticated and issued to
represent each $200,000,000 principal amount
(or the equivalent thereof) of such Book-Entry
Note or Notes and an additional Global Security
will be authenticated and issued to represent any
remaining principal amount of such Book-Entry
Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry
Note or Notes shall be assigned the same CUSIP
number.
Notice of Redemption
Dates: Each DTC Agent will with respect to the Notes
for which it is Trustee, give notice to the
DTC prior to each Redemption Date (as
specified in the Note) if any at the time and
in the manner set forth in the Letter.
A-7
Interest: General. Unless otherwise indicated in the
applicable Pricing Supplement, interest, if any,
on each Book-Entry Note will accrue from the
Original Issue Date (or such other date on which
interest otherwise begins to accrue (if different
than the Original Issue Date) of the Global
Security representing such Book-Entry Note for
the first interest period or the last date to which
interest has been paid, if any, for each
subsequent interest period, on the Global
Security representing such Book-Entry Note, and
will be calculated and paid in the manner and on
the Interest Payment Dates described in such
Book-Entry Note and in the Prospectus (as
defined in the Agency Agreement), as
supplemented by the applicable Pricing
Supplement. Each payment of interest on a
Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date;
provided that in the case of Floating Rate Notes
that reset daily or weekly, interest payments will
include interest accrued to but excluding the next
preceding Regular Record Date, except that at
stated Maturity, the interest payable will include
interest accrued to, but excluding, the Maturity.
Interest payable at the Maturity of a Book-Entry
Note will be payable to the Person to whom the
principal of such Note is payable. Standard &
Poor's Corporation will use the information re
ceived in the pending deposit message described
under Settlement Procedure "C" below in order
to include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or
weekly) bond report published by Standard &
Poor's Corporation.
Regular Record Dates. The Regular Record Date
with respect to any Interest Payment Date for a
Floating-Rate Note, Fixed Rate Note or Indexed
Rate Note shall be the date (whether or not a
A-8
Business Day) fifteen calendar days
immediately preceding such Interest Payment
Date.
Payments of Principal
and Interest: Payment of Interest Only. Promptly after each
Regular Record Date, the DTC Agent for each
Global Security will deliver to the Company
and DTC a written notice setting forth, by
CUSIP number, the amount of interest to be
paid on each Global Security on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with Maturity) and
the total of such amounts. DTC will confirm
the amount payable on each Global Security on
such Interest Payment Date by reference to
the appropriate (daily or weekly) bond
reports published by Standard & Poor's
Corporation. The Company will pay to the
Trustee for the Notes represented by such
Global Security the total amount of interest
due on such Interest Payment Date (other than
at Maturity), and such Trustee will pay such
amount to DTC, at the times and in the manner
set forth below under "Manner of Payment". If
any Interest Payment Date for a Book-Entry
Note is not a Business Day, the payment due
on such day shall be made on the next
succeeding Business Day and no interest shall
accrue as a result of such delayed payment.
Payments at Maturity or Upon Redemption. On
or about the first Business Day of each
month, each DTC Agent will, with respect to
the Global Securities for which it acts as
DTC Agent, deliver to the Company, DTC and
the applicable Trustee a written list of
principal and interest to be paid on each
Global Security maturing either at Maturity
or an a Redemption Date in the following
month. The DTC Agent for each Global
Security, the Company and DTC will confirm
the amounts of such principal and interest
payments with respect to each such Global
Security on or about the fifth Business
A-9
Day preceding the Maturity date or Redemption
Date of such Global Security. On or before
such Maturity or Redemption, the Company will
pay to the Trustee for the Notes represented
by such Global Security the principal amount
of such Global Security, together with
interest due at such Maturity. Such Trustee
will pay such amount to DTC at the times and
in the manner set forth below under "Manner
of Payment". If any Maturity of a Global
Security representing Book-Entry Notes is not
a Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Maturity Date or Redemption Date. Promptly
after payment to DTC of the principal and
interest due on the Maturity Date or
Redemption Date of such Global Security, the
Trustee for such Global Security will cancel
and destroy such Global Security in
accordance with the applicable Indenture and
deliver a certificate of destruction to the
Company.
Manner of Payment. The total amount of any
principal and interest due on Global
Securities on any Interest Payment Date or at
Maturity or upon redemption shall be paid by
the Company to the Trustee for the Notes
represented by such Global Security in
immediately available funds no later than
9:30 A.M. (New York City time) on such date.
The Company will make such payment on such
Global Securities by instructing such Trustee
to withdraw funds from an account maintained
by the Company with the DTC Agent for the
Notes represented by such Global Securities.
The Company will confirm any such
instructions in writing to such Trustee.
Prior to 10 A.M. (New York City time) on the
date of Maturity or as soon as possible
thereafter, such Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form
A-10
previously specified by DTC) to an account at
the Federal Reserve Bank of New York
previously specified by DTC, in funds
available for immediate use by DTC, each
payment of principal (together with interest
thereon) due on a Global Security on such
Maturity Date or Redemption Date. On each
Interest Payment Date (other than at
Maturity), interest payments shall be made to
DTC, in same day funds, in accordance with ex
isting arrangements between the relevant DTC
Agent and DTC. On each such date, DTC will
pay, in accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names the
Book-Entry Notes represented by such Global
Securities are recorded in the book-entry
system maintained by DTC. None of the Company
(as issuer or as paying agent), the Trustee
or such DTC Agent shall have any direct
responsibility or liability for the payment
by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
If an issue of Notes is denominated in a
currency other than the U.S. dollar, the
Company will make payments of principal and
any interest in the currency in which the
Notes are denominated (the "foreign
currency") or in U.S. dollars. DTC has
elected to have all such payments of
principal and interest in U.S. dollars unless
notified by any of its Participants through
which an interest in the Notes is held that
it elects, in accordance with and to the
extent permitted by the applicable Pricing
Supplement and the Note, to receive such
payment of principal or interest in the
foreign currency. On or prior to the third
Business Day after the record date for
payment of interest and twelve days prior to
the date for payment of principal, such
Participant shall
A-11
notify DTC of (i) its election to receive
all, or the specified portion, of such
payment in the foreign currency and (ii) its
instructions for wire transfer of such
payment to a foreign currency account.
DTC will notify the applicable Trustee on or
prior to the fifth Business Day after the
record date for payment of interest and ten
days prior to the date for payment of
principal of the portion of such payment to
be received in the foreign currency and the
applicable wire transfer instructions, and
the applicable Trustee shall use such
instructions to pay the Participants
directly. If DTC does not so notify the
applicable Trustee, it is understood that
only U.S. dollar payments are to be made. The
applicable Trustee shall notify DTC on or
prior to the second Business Day prior to
payment date of the conversion rate to be
used and the resulting U.S. dollar amount to
be paid per $1,000 face amount. In the event
that the applicable Trustee's quotation to
convert the foreign currency into U.S.
dollars is not available, the applicable
Trustee shall notify DTC's Dividend
Department that the entire payment is to be
made in the foreign currency. In such event,
DTC will ask its Participants for payment
instructions and forward such instructions to
the applicable Trustee and the applicable
Trustee shall use such instructions to pay
the Participants directly.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry
Note will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Note.
A-12
Procedures upon
Company's Exercise of
Optional Reset or
Optional Extension
of Maturity: Company Notice to Trustee regarding Exercise
of Optional Reset. Not less than 45 or more
than 60 days before an Optional Reset Date as
set forth in a Book-Entry Note, the Company
will notify the Trustee for such Book-Entry
Note whether it is exercising its option to
reset the interest rate or Spread or Spread
Multiplier, as the case may be, for such
Book-Entry Note, and if so, (i) the new
interest rate or Spread or Spread Multiplier,
as the case may be, for such Book-Entry Note
during the period from such Optional Reset
Date to the next Optional Reset Date as set
forth in such Book-Entry Note or, if there is
no such next Optional Reset Date, to the
Stated Maturity of such Book-Entry Note (the
"Subsequent Interest Period"); and (ii) the
provisions, if any, for redemption of such
Book-Entry Note during such Subsequent
Interest Period, including the date or dates
on which or the period or periods during
which such redemption may occur during such
Subsequent Interest Period.
Company Notice to Trustee regarding Exercise
of Optional Extension of Maturity. If the
Company elects to exercise an option, as set
forth in a Book-Entry Note, to extend the
Stated Maturity of such Note, it will so
notify the Trustee for such Book-Entry Note
no less than 45 or more than 60 days before
the Stated Maturity of such Book-Entry Note,
and will further indicate (i) the new Stated
Maturity; (ii) the interest rate or Spread or
Spread Multiplier, as the case may be,
applicable to the extension period; and (iii)
the provisions, if any, for redemption of
such Book-Entry Note during such extension
period, including the date or dates on which
or the period or periods during which such
redemption may occur during such extension
period.
A-13
Trustee Notice to DTC regarding Company's
Exercise of Optional Extension or Reset. Upon
receipt of notice from the Company regarding
the Company's exercise of either an optional
extension of maturity or an optional reset,
the Trustee for the Book-Entry Note will
hand-deliver a notice to DTC not less than 40
days before the Optional Reset Date (in which
case a "Reset Notice") or the Stated Maturity
(in which case an "Extension Notice"), as the
case may be, which Reset Notice or Extension
Notice shall identify such Book-Entry Note by
CUSIP number and shall contain the
information required by the terms of the
Book-Entry Note.
Trustee Notice to Company regarding Option to
be Repaid. If, after receipt of either a
Reset Notice or an Extension Notice, DTC
exercises the option for repayment by
tendering the Global Security representing
the Book-Entry Note to be repaid as set forth
in such Note, the Trustee for such Book-Entry
Note shall give notice to the Company not
less than 22 days before the Optional Reset
Date or the old Stated Maturity, as the case
may be, of the principal amount of Book-Entry
Notes to be repaid on such Optional Reset
Date or old Stated Maturity, as the case may
be.
Company Notice regarding New Interest Rate or
New Spread or Spread Multiplier. If the
Company elects to revoke the interest rate or
Spread or Spread Multiplier provided for in
the Reset Notice and establish a higher
interest rate or Spread or Spread Multiplier
for a Optional Reset Period or extension
period, as the case may be, it shall, not
less than 20 days before such Optional Reset
Date or old Stated Maturity, so notify the
Trustee for the affected Book-Entry Note. The
Trustee will immediately thereafter
A-14
notify DTC of the new interest rate or Spread
or Spread Multiplier applicable to such
Book-Entry Note.
Trustee Notice to Company regarding DTC
Revocation of Option to be Repaid. If, after
DTC has tendered any Book-Entry Notes for
repayment pursuant to an Extension Notice or
an Optional Reset Notice, DTC then revokes
such tender for repayment, the Trustee for
such Book-Entry Notes shall give notice to
the Company not less than five days prior to
the Stated Maturity or Optional Reset Date,
as the case may be, of such revocation and of
the principal amount of Book-Entry Notes for
which tender for repayment has been revoked.
Deposit of Repayment Price. On or before any
old Stated Maturity where the Maturity has
been extended, and on or before any Optional
Reset Date, the Company shall deposit with
such Trustee an amount of money sufficient to
pay the principal amount, plus interest
accrued to such old Stated Maturity or
Optional Reset Date, as the case may be, for
all the Book-Entry Notes or portions thereof
for which such Trustee serves as Trustee and
which are to be repaid on such old Stated
Maturity or Optional Reset Date, as the case
may be. Such Trustee will use such money to
repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Procedures upon Company Notice to Trustee regarding Exercise
Company's Exercise of Optional Redemption. At least 45 days prior
of Optional to the date on which it intends to redeem a Book-
Redemption: Entry Note, the Company will notify the Trustee
for such Book-Entry Note that
it is exercising such option
with respect to such Book-Entry
Note on such date.
A-15
Trustee Notice to DTC regarding Company's
Exercise of Optional Redemption. After
receipt of notice that the Company is
exercising its option to redeem a Book-Entry
Note, the Trustee will, at least 30 days
before the redemption date for such
Book-Entry Note, hand deliver to DTC a notice
identifying such Book-Entry Note by CUSIP
number and informing DTC of the Company's
exercise of such option with respect to such
Book-Entry Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit
with such Trustee an amount of money
sufficient to pay the redemption price, plus
interest accrued to such redemption date, for
all the Book-Entry Notes or portions thereof
for which such Trustee serves as Trustee and
which are to be repaid on such redemption
date. Such Trustee will use such money to
repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Payments of Principal Trustee Notice to Company of Option to be
and Interest Upon Repaid. Upon receipt of notice of exercise of the
Exercise of Optional option for repayment and the Global Securities
Repayment (Except representing the Book-Entry Notes so to be
Pursuant to repaid as set forth in such Notes, the Trustee for
Company's Exercise such Book-Entry Notes shall (unless such notice
of Optional Reset or was received pursuant to the Company's exercise
Optional Extension: of an optional reset or an optional extension of
maturity, in each of which cases the relevant
procedures set forth above are to be
followed) give notice to the Company not less
than 20 days prior to each Optional Repayment
Date of such Optional Repayment Date and of
the principal amount of Book-Entry Notes to
be repaid on such Optional Repayment Date.
A-16
Deposit of Repayment Price. On or prior to
any Optional Repayment Date, the Company
shall deposit with such Trustee an amount of
money sufficient to pay the optional
repayment price, and accrued interest thereon
to such date, of all the Book-Entry Notes or
portions thereof which are to be repaid on
such date. Such Trustee will use such money
to repay such Book-Entry Notes pursuant to
the terms set forth in such Notes.
Procedure for Rate The Company and the Agent will discuss from
Setting and Posting: time to time the aggregate principal amount of,
the issuance price of, and the interest rates
to be borne by, Book-Entry Notes that may be
sold as a result of the solicitation of
orders by the Agent. If the Company decides
to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the
Agent is to solicit orders (the setting of
such prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates previously
posted by it, it will promptly advise the
Agent of the prices and rates to be posted.
Acceptance and
Rejection of Orders: Unless otherwise instructed by the Company,
the Agent will advise the Company promptly by
telephone of all orders to purchase
Book-Entry Notes received by the Agent, other
than those rejected by it in whole or in part
in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and
the Agent, the Company has the right to
accept orders to purchase Book-Entry Notes
and may reject any such orders in whole or in
part.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Book-Entry Note, will file ten copies
A-17
thereof with the Commission in accordance
with the applicable paragraph of Rule 424(b)
under the Act, will deliver such number of
copies thereof to the Agent as the Agent
shall request and will, on the Agent's
behalf, file five copies of such Pricing
Supplement with the National Association of
Securities Dealers, Inc. (the "NASD"). The
Agent will cause a Prospectus and such
Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements and the
Prospectuses to which they are attached
(other than those retained for files), will
be destroyed.
Copies of the appropriate number of Pricing
Supplements shall be delivered to the Agent
at the following address by 11:00 a.m., New
York City time, on the Business Day following
the acceptance of an offer by or on behalf of
the Company: to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., at
Prospectus Department, Brooklyn Army
Terminal, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (with a copy transmitted
by telecopy to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: MTN Program Manager,
at (▇▇▇) ▇▇▇-▇▇▇▇) and to Salomon Brothers
Inc, at Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the
Amendment or Agency Agreement, the Company may instruct
Supplement: the Agent to suspend at any time, for any period
of time or permanently, the solicitation of orders
to purchase Book-Entry Notes. Upon receipt of
such instructions, the Agent will forthwith
suspend solicitation until such time as the
A-18
Company has advised them that such
solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly advise
the Agent, the Trustees and the DTC Agents
whether such orders may be settled and
whether copies of the Prospectus as in effect
at the time of the suspension, together with
the appropriate Pricing Supplement, may be
delivered in connection with the settlement
of such orders. The Company will have the
sole responsibility for such decision and for
any arrangements that may be made in the
event that the Company determines that such
orders may not be settled or that copies of
such Prospectus may not be so delivered.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Book-Entry Note must
accompany or precede the earliest of any
written offer of such Book-Entry Note,
confirmation of the purchase of such
Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If notice
of a change in the terms of the Book-Entry
Notes is received by the Agent between the
time an order for a Book-Entry Note is placed
and the time written confirmation thereof is
sent by the Agent to a customer or his agent,
such confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting
forth the terms in effect when the order was
placed. The Agent will deliver a Prospectus
and Pricing Supplement as herein described
with respect to each Book-Entry Note sold by
it. The Company will make such delivery if
such Book-Entry Note is sold directly by the
Company to a purchaser (other than the
Agent).
A-19
Confirmation: For each order to purchase a Book-Entry Note
solicited by the Agent and accepted by or on
behalf of the Company, the Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth
above and delivery and payment instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of the
Global Security representing such Book-Entry
Note shall constitute "settlement" with respect to
such Book-Entry Note, and the date of such
settlement, the "Settlement Date." All orders
accepted by the Company will be settled on the
third Business Day next succeeding the date of
acceptance pursuant to the timetable for
settlement set forth below unless the Company
and the purchaser agree to settlement on another
day which shall be no earlier than the Business
Day the date of sale.
Settlement Settlement Procedures with regard to each Book-
Procedures: Entry Note sold by the Company to or through
the Agent, except pursuant to a Terms
Agreement, shall be as follows:
A. The Agent will advise the
Company by telephone (or
by facsimile or other
acceptable written means)
that such Note is a
Book-Entry Note and of
the following settlement
information:
1. Principal or face amount.
2. Series.
3. Stated Maturity.
4. In the case of a Fixed Rate Book-
A-20
Entry Note, the
interest rate and
reset, redemption,
repayment and
extension
provisions (if any)
or, in the case of
a Floating Rate
Book-Entry Note,
the Base Rate,
Initial Interest
Rate (if known at
such time) Interest
Reset Period,
Interest Reset
Dates, Index
Maturity, Spread
and/or Spread
Multiplier (if
any), Minimum
Interest Rate (if
any), Maximum
Interest Rate (if
any) and reset,
redemption,
repayment and
extension
provisions (if
any).
5. Interest Payment Dates and the
Interest Payment Period.
6. Amortization provisions, if any.
7. Settlement date and Issue Date, if
different.
8. Specified currency.
9. Denominated currency, Indexed
Currency, Base Exchange Rate,
and the Determination Date, if
applicable.
10. Price.
11. Agent's commission, determined
as provided in the Agency Agree
ment.
12. Whether such
Book-Entry Note is
an OID Note and, if
so, the total
amount of OID, the
yield to maturity
and the initial
accrual period OID.
A-21
13. Any other terms necessary to
describe the Book-Entry Note.
B. The Company will advise the relevant
DTC Agent by telephone (confirmed in
writing at any time on the same date),
written telecommunication or electronic
transmission of the information set forth
in Settlement Procedure "A" above. Each
such communication by the Company
shall constitute a representation and
warranty by the Company to the DTC
Agent for such Note, the Trustee for such
Note and the Agent that (i) such Note is
then, and at the time of issuance and sale
thereof will be, duly authorized for
issuance and sale by the Company and (ii)
such Note, and the Global Security
representing such Note, will conform with
the terms of the Indenture for such Note.
The DTC Agent will then assign a CUSIP
number to the Global Security repre
senting such Book-Entry Note and notify
the Agent and the Company by telephone
(confirmed in writing at any time on the
same date), written telecommunication or
electronic transmission of such CUSIP
number as soon as practicable.
C. Such DTC Agent will enter a pending
deposit message through DTC's
Participant Terminal System providing the
following settlement information to DTC
Standard & Poor's Corporation,
Interactive Data Corporation, the Agent
and, upon request, the Trustee for such
Notes:
1. The information set forth in
A-22
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating
Rate Book-Entry Note.
3. The Initial
Interest Payment
Date for such
Book-Entry Note,
number of days by
which such date
succeeds the
related Regular
Record Date and
amount of in terest
payable on such
Interest Payment
Date.
4. The Interest Payment Period.
5. The CUSIP number of the Global
Security representing such Book-
Entry Note.
6. The participant account numbers
maintained by DTC on behalf of
the Trustee and the Agent.
7. Whether such Global
Security will
represent any other
Book-Entry Note (to
the extent known at
such time).
D. To the extent the
Company has not
already done so,
the Company will
deliver to the
Trustee for such
Notes a Global
Security in a form
that has been
approved by the
Company, the Agent
and the Trustee.
E. The Trustee will complete such Book-
Entry Note, stamp the appropriate legend,
as instructed by DTC, if not already set
forth thereon, and authenticate the Global
Security representing such Book-Entry
A-23
Note.
F. DTC will credit such Book-Entry Note to
such DTC Agent's participant account at
DTC.
G. Such DTC Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to
(i) debit such Book-Entry Note to such
DTC Agent's participant account and
credit such Book-Entry Note to the
Agent's participant account and (ii) debit
the Agent's settlement account and credit
such DTC Agent's settlement account for
an amount equal to the price of such
Book-Entry Note less the Agent's com
mission. The entry of such a deliver order
shall constitute a representation and
warranty by such DTC Agent to DTC that
(i) the Global Security representing such
Book-Entry Note has been issued and
authenticated and (ii) such DTC Agent is
holding such Global Security pursuant to
the Medium Term Note Certificate
Agreement between such DTC Agent and
DTC.
A-24
H. Unless the Agent is purchasing such Note
as principal, the Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Book-Entry Note to the Agent's
participant account and credit such Book-
Entry Note to the participant accounts of
the Participants with respect to such
Book-Entry Note and (ii) to debit the
settlement accounts of such Participants
and credit the settlement account of the
Agent for an amount equal to the price of
such Book-Entry Note.
I. Transfers of funds in
accordance with SDFS
deliver orders described
in Settlement Procedures
"G" and "H" will be
settled in accordance
with SDFS operating
procedures in effect on
the settlement date.
J. Such DTC Agent will, upon receipt of
funds from the Agent in accordance with
Settlement Procedure "G", credit to an
account of the Company maintained at
such DTC Agent funds available for
immediate use in the amount transferred
to such DTC Agent in accordance with
Settlement Procedure "G".
K. Unless the Agent is purchasing such
Book-Entry Note as principal, the Agent
will confirm the purchase of such Book-
Entry Note to the purchaser either by
transmitting to the Participants with res
pect to such Book-Entry Note a
confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
A-25
L. Monthly, each DTC Agent will send to the
Company a statement setting forth the
principal amount of Registered Notes
Outstanding as of the date of such
statement and setting forth a brief
description of any sales of which the
Company has advised such DTC Agent
but which have not yet been settled.
Settlement Procedures
Timetable: For sales by the Company of Book-Entry Notes
solicited by the Agent and accepted by the
Company (except pursuant to a Terms
Agreement) for settlement on the first Business
Day after the sale date, Settlement
Procedures "A" through "K" set
forth above shall be completed
as soon as possible but not
later than the respective times
(New York City time) set forth
below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
A-26
If a sale is to be settled more
than one Business Day after the
sale date, Settlement
Procedures "A", "B" and "C"
shall be completed as soon as
practicable but no later than
11:00 A.M. 12:00 Noon and 2:00
P.M.
respectively on the first
Business Day after the sale
date. If the Initial Interest
Rate for a Float ing Rate
Book-Entry Note has not been
deter mined at the time that
Settlement Procedure "A" is
completed, Settlement
Procedures "B" and
"C" shall be completed as soon
as such rate has been
determined but no later than
12:00 Noon and 2:00 P.M.,
respectively, on the Business
Day before the settlement date.
Settlement Procedure "I" is
subject to extension in
accordance with any extension
of Fedwire closing deadlines
and in the other events
specified in SDFS operating
procedures in effect on the
settlement date.
If settlement of a Book-Entry
Note is rescheduled or
canceled, the DTC Agent for
such Book-Entry Notes after
receiving notice from the
Company or the Agent, will
deliver to DTC, through DTC's
Participant Terminal System, a
cancellation message to such
effect by no later than 2:00
P.M. on the Business Day
immediately preceding the
scheduled settlement date.
Failure to Settle: If settlement of a Book-Entry Note is
rescheduled and the DTC Agent for such Note
has not entered an SDFS deliver order with
respect to a Book-Entry Note pursuant to
Settlement Procedure "G", after receiving notice
from the Company or the Agent, such DTC
Agent shall deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to such
DTC Agent's participant account. DTC will
A-27
process the withdrawal message, provided that
such DTC Agent's participant account contains
a principal amount of the Global Security
representing such Book-Entry Note that is at
least equal to the principal amount to be
debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee
for the Notes represented by such Global
Security will ▇▇▇▇ such Global Security
"canceled", make appropriate entries in such
Trustee's records and destroy canceled Global
Security in accordance with the applicable
Indenture and deliver a certificate of
destruction to the Company. The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If a withdrawal message is
processed with respect to one or more, but
not all, of the Book-Entry Notes represented
by a Global Security, the DTC Agent for such
Book-Entry Notes will exchange such Global
Security for two Global Securities, one of
which shall represent such Book-Entry Notes
and shall be canceled immediately after
issuance and the other of which shall
represent the other Book-Entry Notes
previously represented by the surrendered
Global Security and shall bear the CUSIP num-
ber of the surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a Person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent
may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the or
ders entered pursuant to Settlement Proce
dures "H" and "G", respectively. Thereafter,
A-28
the DTC Agent for such Book-Entry Note will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than a default
by the Agent in the performance of its
obligations hereunder and under the Agency
Agreement, then the Company will reimburse
the Agent for the loss of the use of the
funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect. In the event of a failure to
settle with respect to one or more, but not
all, of the Book-Entry Notes to have been
represented by a Global Security, the DTC
Agent for such Book-Entry Note or Notes will
provide, in accordance with Settlement
Procedures "E" and "G", for the au
thentication and issuance of a Global
Security representing the other Book-Entry
Notes to have been represented by such Global
Security and will make appropriate entries in
its records.
Trustees Not to Risk Nothing herein shall be deemed to require either
Funds: Trustee to risk or expend its own funds in con
nection with any payment to the
Company, DTC, the Agent or the
purchaser, it being understood
by all parties that payments
made by either Trustee to the
Company, DTC, the Agent or the
purchaser shall be made only to
the extent that funds are
provided to such Trustee for
such purpose.
Authenticity of The Company will cause each of the Trustees to
Signatures: furnish the Agent from time to time with the
specimen signatures of each of such Trustee's
A-29
officers, employees or agents who has been
authorized by such Trustee to authenticate
Book-Entry Notes, but the Agent will not have
any obligation or liability to the Company or
the Trustee in respect of the authenticity of
the signature of any officer, employee or
agent of the Company or the Trustee on any
Book-Entry Note.
Payment of The Agent shall forward to the
Expenses: Company, on a monthly basis, a statement of
the out-of-pocket expenses
incurred by such Agent during
that month that are
reimbursable to it pursuant to
the terms of the Agency
Agreement. The Company will
remit payment to the Agent
currently on a monthly basis.
Advertising The Company will determine with the
Costs: Agents the amount of advertising that may be
appropriate in soliciting offers to purchase the
Book-Entry Notes. Advertising expenses will
be paid by the Company.
A-30
PART II
Administrative Procedures for Certificated Notes
Each Trustee will serve as registrar and transfer
agent in connection with the Certificated Notes for which it
serves as Trustee.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the applicable
Trustee. Each Certificated Note will bear an
Original Issue Date, which will be (i) with respect to
an original Certificated Note (or any portion
thereof), its original issuance date (which will be the
settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or
stolen Certificated Note, the Original Issue Date of
the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Maturities: Each Certificated Note will mature on a date not less
than nine months after the issue date for such Note.
A Floating Rate Certificated Note will mature only
on an Interest Payment Date for such Note. Any
Note denominated in Japanese yen will mature on a
date not less than one year from the Original Issue
Date (as defined below) for such Note. Any Note
denominated in Pounds Sterling will mature on a
date not less than one year, nor more than five years,
after its Original Date.
Currency: The Specified Currency for a Certificated Note shall
be as set forth therein and in the applicable Pricing
Supplement.
A-31
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
a Specified Currency other than U.S. dollars shall be
determined as set forth in the applicable Pricing
Supplement.
Interest: General. Unless otherwise indicated in the
applicable Pricing Supplement, interest, if any, on
each Certificated Note will accrue from the Original
Issue Date (or such other date on which interest
otherwise begins to accrue (if different from the
Original Issue Date)) of such Note for the first in
terest period or the last date to which interest has
been paid, if any, for each subsequent interest
period, on such Note, and will be calculated and paid
in the manner and on the dates described in such
Note and in the Prospectus, as supplemented by the
applicable Pricing Supplement. Unless otherwise
specified therein, each payment of interest on a
Certificated Note will include interest accrued to but
excluding the Interest Payment Date (provided that,
in the case of Certificated Notes which reset daily or
weekly, interest payments will include accrued
interest to and including the next preceding Regular
Record Date), except that at stated Maturity, the
interest payable will include interest accrued to, but
excluding, the stated Maturity. (other than a
Maturity of a Fixed Rate Certificated Note occurring
on the 31st day of a month, in which case such
payment of interest will include interest accrued to
but excluding the 30th day of such month).
A-32
Regular Record Dates. The Regular Record
Dates with respect to any Interest Payment
Date for a Fixed Rate Note, Floating Rate
Note or Indexed Rate Note shall be the date
(whether or not a Business Day) fifteen
calendar days immediately preceding such
Interest Payment Date.
Payments of The applicable Trustee will pay the principal amount
Interest: of each Certificated Note at Maturity or upon
redemption upon presentation and surrender of
such Note to The Trustee. Such payment,
together with payment of interest due at
Maturity or upon redemption of such Note,
will be made in funds available for immediate
use by The Trustee and in turn by the holder
of such Note. Certificated Notes presented to
The Trustee at Maturity or upon redemption
for payment will be canceled and destroyed by
The Trustee, and a certificate of destruction
will be delivered to the Company. All
interest payments on a Certificate Note
(other than interest due at Maturity or upon
redemption) will be made by check drawn on
The Trustee (or another person appointed by
The Trustee) and mailed by The Trustee to the
person entitled thereto as provided in such
Note and the Indenture; provided, however,
that the holder of $10,000,000 or more of
Notes having the same Interest Payment Dates
will, upon written request prior to the
Regular Record Date in respect of an Interest
Payment Date, be entitled to receive payment
by wire transfer of immediately available
funds. Following each Regular Record Date,
The Trustee will furnish the Company with a
list of interest payments to be made on the
following Interest Payment Date for each
Certificated Note and in total for all
Certificated Notes. Interest at Maturity or
upon redemption will be payable to the person
to whom the payment of principal is payable.
The Trustee will provide monthly to the
Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing or to be redeemed
in the next month.
A-34
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Certificated
Note will be determined and withheld by The
Trustee.
The Company will be responsible for
withholding taxes on interest paid on
Certificated Notes as required by applicable
law.
If any interest Payment Date for or the
Maturity of a Certificated Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on account
of such delayed payment.
Procedure for Rate The Company and the Agent will discuss from time
Setting and Posting: to time the aggregate principal amount of, the
issuance price of, and the
interest rates to be borne by,
Notes that may be sold as a
result of the solicita tion of
orders by the Agent. If the
Company decides to set prices
of, and rates borne by, any
Notes in respect of which the
Agent is to solicit orders (the
setting of such prices and
rates to be referred to herein
as "posting") or if the Company
decides to change prices or
rates previously posted by it,
it will promptly advise the
Agent of the prices and rates
to be posted.
A-34
Acceptance and Unless otherwise instructed by the Company, the Agent
Rejection of Orders: will advise the Company promptly by telephone of all
orders to purchase Certificated
Notes received by the Agent,
other than those rejected by it
in whole or in part in the
reasonable exercise of its
discretion. Unless otherwise
agreed by the Company and the
Agent, the Company has the sole
right to accept orders to
purchase Certificated Notes and
may reject any such orders in
whole or in part. Before
accepting any order to purchase
a Certificated Note to be
settled in less than three
Business Days, the Company
shall verify that the Trustee
for such Certificated Note will
have adequate time to prepare
and authenticate such Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note
is accepted by or on behalf of the Company,
the Company will prepare a Pricing Supplement
reflecting the terms of such Certificated
Note, will file ten copies thereof with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, will
deliver such number of copies thereof to the
Agent as the Agent shall request and will, on
the Agent's behalf, file five copies of the
Pricing Supplement with the NASD. The Agent
will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser
of such Certificated Note.
Copies of the appropriate
number of Pricing Supplements
shall be delivered to the Agent
at the following addresses by
11:00 a.m., New York City time,
on the Business Day following
the acceptance of an offer by
or on behalf of the Company: if
to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
Prospectus Department, Brooklyn
Army Terminal, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
and if to Salomon Brothers Inc,
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing
A-35
Supplements and the Prospectuses to which
they are attached (other than those retained
for files), will be destroyed.
Suspension of Subject to the Company's representations, warranties
Solicitation; and covenants contained in the Agency Agreement, the
Amendment or Company may instruct the Agent to suspend at any time
Supplement: for any period of time or permanently, the
solicitation of orders to purchase Certificated
Notes. Upon receipt of such
instructions, the Agent will
forthwith suspend solicitation
until such time as the Company
has advised them that such
solicitation may be resumed.
In the event that at the time
the Company suspends
solicitation of purchases there
shall be any orders outstanding
for settlement, the Company
will promptly advise the Agent,
the Trustee and the Trustees
whether such orders may be
settled and whether copies of
the Pro spectus as in effect at
the time of the suspension,
together with the appropriate
Pricing Supplement, may be
delivered in connection with
the settlement of such orders.
The Company will have the sole
responsibility for such
decision and for any
arrangements that may be made
in the event that the Company
determines that such orders may
not be settled or that copies
of such Prospectus may not be
so delivered.
Delivery of A copy of the Prospectus and a Pricing
Prospectus: Supplement relating to a Certificated Note must
accompany or precede the
earliest of any written offer
of such Certificated Note,
confirmation of the purchase of
such Certificated Note and
payment for such Certificated
Note by its purchaser. If
notice of a change in the terms
of the Certificated Notes is
received by the Agent between
the time an order for a
Certificated Note is placed and
the time written confirmation
thereof is sent by the Agent to
a customer or his agent, such
confir mation shall be
accompanied by a Prospectus and
Pricing Supplement setting
forth the terms in effect when
the or der was placed. The
Agent will deliver a Prospectus
and Pricing Supplement as
herein described with respect to
A-36
each Certificated Note sold by
it. The Company will make such
delivery if such Certificated
Note is sold directly by the
Company to a purchaser (other
than the Agent).
Confirmation: For each order to purchase a
Certificated Note solicited by
the Agent and accepted by or on
behalf of the Company, the
Agent will issue a confirmation
to the purchaser, with a copy
to the Company, setting forth
the details set forth above and
delivery and payment
instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered to
the Agent and the Agent's delivery of such
Certificated Note against receipt of
immediately available funds shall, with
respect to such Certificated Note, constitute
"settlement". All orders accepted by the
Company will be settled on the fifth Business
Day next succeeding the date of acceptance
pursuant to the timetable for settlement set
forth below, unless the Company and the
purchaser agree to settlement on another day
which shall be no earlier than the next
Business Day following the date of sale.
Settlement Settlement Procedures with regard to
Procedures: each Certificated Note sold by the Company to or
through the Agent, as agent (except pursuant to
a Terms Agreement), shall be as follows:
A. The Agent will advise the
Company by telephone or
by facsimile transmission
or other acceptable
written means) that such
Note is a Certificated
Note and of the following
settlement information,
in time for the Trustee
for such Certificated
Note to prepare and
authenticate the required
Note:
1. Name in which such Certificated Note is to
be registered ("Registered Owner").
A-37
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal or face amount.
5. Series.
6. Stated Maturity.
7. In the case of a Fixed Rate Certificated
Note, the Interest Rate and reset provisions
(if any) or, in the case of a Floating Rate
Certificated Note, the Base Rate, Initial
Interest Rate (if known at such time),
Interest Reset Period, Interest Reset Dates,
Index Maturity, Spread and/or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and reset provisions (if any).
8. Interest Payment Dates and the Interest
Payment Period.
9. Specified Currency.
10. Denominated Currency, Indexed Currency,
Base Exchange Rate and the Determination
Date, if applicable.
11. Redemption, repayment, amortization or
extension provisions, if any.
12. Settlement date.
13. Price (including currency).
14. Agent's commission, if any, determined as
A-38
provided in the Agency Agreement.
15. Whether such Certificated Note an OID
Note, and, if so, the total amount of OID
and the yield to maturity.
16. Any other terms necessary to describe the
Certificated Note.
B. The Company will
advise the relevant
Trustee by
telephone,
(confirmed in
writing at any time
on the sale date)
written
telecommunication
or electronic
transmission of the
information set
forth in Settlement
Procedure "A" above
and the name of the
Presenting Agent.
C. The Company will
deliver to the
relevant Trustee a
pre-printed
four-ply packet for
such Certificated
Note, which packet
will contain the
following documents
in forms that have
been approved by
Company, the Agents
and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated Note
and will authenticate such Certificated Note and
deliver it (with the confirmation) and Stubs One
and Two to the Agent, and the Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against
such acknowledgment of receipt and evidence that
instructions have been given by the Agent for pay
ment to such account as the Company shall have
A-39
specified in funds available for immediate
use, of an amount equal to the price of such
Certificated Note less the Agent's
commission. In the event that the
instructions given by the Agent for payment
to the account of the Company are re voked,
the Company will as promptly as possible wire
transfer to the account of the Agent an
amount of immediately available funds equal
to the amount of such payment made.
E. Unless the Agent
purchased the Note as
Principal, the Agent will
deliver such Certificated
Note (with the
confirmation) to the
customer against payment
in immediately payable
funds. The Agent will
obtain the acknowledgment
of receipt of such Cer
tificated Note by
retaining Stub Two.
F. The Trustee will send Stub Three to the Company
by first-class mail.
Settlement For orders of Certificated Notes
Procedures solicited by the Agent, as agent, and
Timetable: accepted by the Company, Settlement Procedures "A"
through "F" set forth above
shall be completed on or before
the respective times (New York
City time) set forth below:
A-40
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the day before
settlement
B On the day two
Business Days
before settlement
date.
C 2:15 P.M. two Business Days before
settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Procedures upon Company Notice to Trustee
Company's Exercise regarding Exercise of Optional
of Optional Reset Reset. Not less than 45 or more
or Extension of than 60 days before an Optional
Maturity: Resent Date as set forth in a Certificated
Note, the Company will notify the Trustee for
such Certificated Note whether it is
exercising its option to reset the interest
rate or Spread or Spread Multiplier, as the
case may be, for such Certificated Note, and
if so, (i) the new interest rate or Spread or
Spread Multiplier, as the case may be, for
such Certificated Note during the period from
such Optional Reset Date to the next Optional
Reset Date as set forth in such Certificated
Note or, if there is no such next Optional
Reset Date, to the State Maturity of such
Certificated Note (the "Subsequent Interest
Period"); and (ii) the provisions, if any,
for redemption of such Certificated Note
during such Subsequent Interest Period,
including the date or dates on which or the
period or periods during which such
redemption may occur during such Subsequent
Interest Period.
Company Notice to Trustee
regarding Exercise of Optional
Extension of Maturity. If the
Company elects to exercise an
option, as set forth in a
Certificated Note, to extend
the Stated Maturity of such
Note, it will so notify the
Trustee for such Certificated
Note not less than 45 or more
than 60 days before the Stated
Maturity of
A-41
such Certificated Note, and
will further indicate (i) the
new Stated Maturity; (ii) the
interest rate or Spread or
Spread Multiplier, as the case
may be, applicable to the
extension period; and (iii) the
provisions, if any, for
redemption of such Certificated
Note during such extension
period, including the date or
dates on which or the period or
periods during which such
redemption may occur during
such extension period.
Trustee Notice to Holders
regarding Company's Exercise of
Optional Extension or Reset.
Upon receipt of notice from the
Company regarding the Company's
exercise of either an optional
extension of maturity or an
optional reset, the Trustee for
the Certificated Note will mail
a notice, first class, postage
prepaid, to the Holder of the
Certificated Note not less than
40 days before the Optional
Reset Date (in which case a
"Reset Notice") or the Stated
Maturity (in which case an
"Extension Notice"), as the
case may be, which Reset Notice
or Extension Notice shall
contain the information
required by the terms of the
Certificated Note.
Trustee Notice to Company
regarding Option to be Repaid.
If, after receipt of either a
Reset Notice or an Extension
Notice, any Holder of a
Certificated Note exercises the
option for repayment by
tendering the Certificated Note
to be repaid as set forth in
the Certificated Note, the
Trustee for such Certificated
Note shall give notice to the
Company not less than 22 days
before the Optional Reset Date,
or the old Stated Maturity, as
the case may be, of the
principal amount of
Certificated Notes to be repaid
on such Optional Reset Date or
old Stated Maturity, as the
case may be.
Company Notice regarding New
Interest Rate or New Spread or
Spread Multiplier. If the
Company elects to revoke the
interest rate or Spread or
Spread Multiplier and establish
a higher interest rate or
Spread or Spread Multiplier for
an Optional Reset Period or
extension period, as the case
may be, it shall, not less than
20 days before such Optional
Reset Date or old Stated
Maturity,
A-42
so notify the Trustee for the
affected Certificated Note. The
Trustee will immediately
thereafter notify the Holder of
such Certificated Note, by
first class mail, postage
prepaid, of the new higher
interest rate or Spread or
Spread Multiplier applicable to
such Certificated Note.
Trustee Notice to Company
regarding Holder Revocation of
Option to be Repaid. If, after
the Holder of a Certificated
Note has tendered such Note for
repayment pursuant to an
Extension Notice or an Optional
Reset Notice, such Holder
revokes such tender for
repayment, the Trustee for such
Certificated Note shall give
notice to the Company not less
than five days prior to the
Stated Maturity or Optional
Reset Date, as the case may be,
of such revocation and of the
principal amount of
Certificated Notes for which
tender for repayment has been
revoked.
Deposit of Repayment Price. On
or before any old Stated
Maturity where the Maturity has
been extended, and on or before
any Optional Reset Date, the
Company shall deposit with such
Trustee an amount of money
sufficient to pay the principal
amount, plus interest accrued
to such old Stated Maturity or
Optional Reset Date, as the
case may be, for all the
Certificated Notes or portions
thereof for which such Trustee
serves as Trustee and which are
to be repaid on such old Stated
Maturity or Optional Reset
Date, as the case may be. Such
Trustee will use such money to
repay such Certificated Notes
pursuant to the terms set forth
in such Notes.
Procedures upon Company Notice to Trustee regarding Exercise of
Company's Exercise Optional Redemption. At least 45 days prior to the date
of Optional on which it intends to redeem a Certificated Note, the
Redemption: Company will notify the Trustee for such Certificated
Note that it is exercising such
option with respect to such
Note on such date.
Trustee Notice to Holders regarding Company's
Exercise of Optional Redemption. After
receipt of notice that the Company is
exercising its option to redeem a
Certificated
A-43
Note, the Trustee for such
Certificated Note will, at
least 30 days before the
redemption date for such
Certificated Note, mail a
notice, first class, postage
prepaid, to the Holder of such
Certificated Note, informing
such Holder of the Company's
exercise of such option with
respect to such Certificated
Note.
Payments of Principal
and Interest Upon
Exercise of Optional
Repayment (Except
Pursuant to Company's
Exercise of Optional
Reset or Optional
Extension): Trustee Notice to Company of Option to be
Repaid. Upon receipt of notice of exercise of
the option for repayment and the Certificated
Notes to be repaid as set forth in such
Notes, the Trustee for such Certificated
Notes shall (unless such notice was received
pursuant to the Company's exercise of an
optional reset or an optional extension of
maturity, in each of which cases the relevant
procedures set forth above shall be followed)
give notice to the Company not less than 20
days prior to each Optional Repayment Date of
such Optional Repayment Date and of the
principal amount of Certificated Notes to be
repaid on such Optional Repayment Date.
Failure to Settle: If a purchaser fails to accept delivery of
and make payment for any Certificated Note,
the Agent will notify the Company and the
applicable Trustee by telephone and return
such Note to the applicable Trustee. Upon
receipt of such notice, the Company will
immediately wire transfer to the account of
the Agent an amount equal to the amount
previously credited thereto in respect of
such Note. Such wire transfer will be made on
the settlement date, if possible, and in any
event not later than the Business Day
following the settlement date. If the failure
shall have occurred for any reason other than
a default by the Agent in the performance of
its obligations hereunder and under the
Agency Agreement with the Company, then the
Company will reimburse the Agent or the
applicable Trustee, as appropriate, on an
equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which such failure
occurred, the applicable Trustee will ▇▇▇▇
such Note "canceled," make
A-44
appropriate entries in the applicable
Trustee's records and send such Note to the
Company.
Trustees Not to Risk Nothing herein shall be deemed to require either Trustee
Funds: to risk or expend its own funds in connection with any
payment to the Company, the
Agent or the purchaser, it
being understood by all parties
that payments made by either
Trustee to the Company, the
Agent or the purchaser shall be
made only to the extent that
funds are provided to such
Trustee for such purpose.
Authenticity of The Company will cause each Trustee to furnish the
Signatures: Agent from time to time with the specimen signatures of
each of such Trustee's
officers, employees or agents
who has been authorized by such
Trustee to authenticate
Certificated Notes, but the
Agent will not have any ob
ligation or liability to the
Company or a Trustee in respect
of the authenticity of the
signature of any officer,
employee or agent of the
Company or a Trustee on any
Certificated Note.
Payment of Expenses: The Agent shall forward to the Company, on
a monthly basis, a statement of the
out-of-pocket expenses incurred by the Agent
during that month that are reimbursable to it
pursuant to the terms of the Agency
Agreement. The Company will remit payment to
the Agent currently on a monthly basis.
Advertising Costs: The Company will determine with the Agent
the amount of advertising that may be
appropriate in soliciting orders to purchase
the Certificated Notes. Advertising expenses
will be paid by the Company.
A-45
EXHIBIT B
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY HOLDINGS INC.
Euro Medium-Term Note Administrative Procedures
(For Medium Term Notes, Series H and I, in Bearer Form)
December 5, 1997
The Medium-Term Notes, Series H (the "Series H Notes")
and the Medium-Term Notes, Series I (the "Series I Notes" and,
together with the Series H Notes, the "Notes") of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Holdings Inc. (the "Company") are to be offered on a
continuing basis. Each of Salomon Brothers International Limited,
Salomon Brothers Hong Kong Limited and Salomon Brothers AG have
agreed to act as agent in the solicitation of Notes issuable in
bearer form (the "Bearer Notes"), which will be represented by
Global Securities that may be exchanged for individual Bearer
Notes. (The term "Agent" as used in these Administrative
Procedures means, when used in reference to Bearer Notes that are
denominated in Deutsche Marks, Salomon Brothers
Aktiengesellschaft, and, when used in reference to all other
Bearer Notes, Salomon Brothers International Limited or Salomon
Brothers Hong Kong Limited). The Agent will not be obligated to
purchase Notes for its own account. The Bearer Notes are being
sold pursuant to a Global Selling Agency Agreement between the
Company and the agents named therein (including the Agent) dated
the date hereof (the "Agency Agreement"). The Notes have been
registered with the Securities and Exchange Commission (the
"Commission"). Citibank, N.A. is the trustee under the Indenture,
dated as of December 1, 1988, as amended from time to time,
covering the Series H Notes (the "Senior Debt Indenture").
Bankers Trust Company is the trustee (together with Citibank,
N.A., the "Trustees") under the Indenture, dated as of December
1, 1988, as amended from time to time, covering the Series I
Notes (the "Subordinated Debt Indenture" and together with the
Senior Debt Indenture, the "Indentures"). The Series H Notes will
constitute part of the senior debt of the Company and will rank
equally with all other unsecured and unsubordinated debt of the
Company. The Series I Notes will be subordinate and junior in the
right of payment to all Senior Indebtedness of the Company, to
the extent and in the manner set forth in the Subordinated Debt
Indenture.
The Agency Agreement provides that Notes may also be
purchased by the Agent acting solely as principal and not as
agent. In the event of any such purchase, the Agent acting solely
as principal shall perform the functions of both the Agent and
the beneficial owner under the administrative procedures set
forth below, unless otherwise agreed to between the Company and
the Agent acting as principal.
The Company has appointed the principal office of
Citibank, N.A. in London as principal paying agent for the
payment of the principal of and interest on the Series H Bearer
Notes and has appointed the principal office of Bankers Trust
Company in London as principal paying agent (together the
"Principal Paying Agents") for the payment of principal of and
interest
B-1
on the Series I Bearer Notes. The Company has appointed Citicorp
Investment Bank (Luxembourg) S.A. in Luxembourg as an additional
paying agent for the Series H Notes and has appointed Bankers
Trust Luxembourg, S.A. as an additional paying agent for the
Series I Notes (each a "Paying Agent").
The procedures to be followed during, and the specific
terms of, the solicitation of orders by the Agent and the sale as
a result thereof by the Company are explained below.
Administrative and record-keeping responsibilities will be
handled for the Company by its Treasury Department. The Company
will advise the Agent and the Trustees in writing of those
persons handling administrative responsibilities with whom the
Agent and the Trustees are to communicate regarding orders to
purchase Bearer Notes and the details of their delivery.
If the Notes are to be listed on the Luxembourg Stock
Exchange, the Company will advise the Principal Paying Agents and
the Agent as to the entity it has appointed as listing agent (the
"Listing Agent"), which will coordinate with the Principal Paying
Agents and the Agent on a regular basis for the purpose of
providing the Luxembourg Stock Exchange with such information
regarding Bearer Notes issued and outstanding as such Exchange
may require.
Administrative procedures and specific terms of the
offering are explained below. Unless otherwise defined herein,
terms defined in the Indenture, the Prospectus or the Notes shall
be used as therein defined. To the extent the procedures set
forth below conflict with the provisions of the Bearer Notes, the
Indentures or the Agency Agreement, the relevant provisions of
the Bearer Notes, the Indentures and the Agency Agreement shall
control.
Maturities: Each Bearer Note will mature on a date
more than nine months after the settlement
date for such Note. A Floating Rate Bearer
Note will mature only on an Interest
Payment Date for such Bearer Note. Any
Note denominated in Japanese yen will
mature on a date not less than one year from
the Original Issue Date (as defined below)
for such Note. Any Note denominated in
Pounds Sterling will mature on a date not
less than one year, nor more than five years,
after its Original Issue Date.
B-2
Denominations: The denomination of any Bearer Note
denominated in U.S. dollars will be a
minimum of U.S. $10,000 or any larger
amount that is an integral multiple of U.S.
$1,000. The authorized denominations of
Bearer Notes denominated in any other
currency will be set forth in such Bearer
Notes.
Bearer Form: Bearer Notes will be issued only in bearer
form.
Date of Issuance: Each Bearer Note will be dated and issued
as of its original issue date by the Principal
Paying Agent for such Bearer Note. Each
Bearer Note will bear an Original Issue
Date, which will be (i) with respect to a
temporary Global Security (or any portion
thereof), the date of its original issue as
specified in such Global Security and
(ii) with respect to any Permanent Global
Security or individual Bearer Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer
Note, the Original Issue Date of the
predecessor Bearer Note, regardless of the
date of authentication of such subsequently
issued Bearer Note.
B-3
Temporary Global
Securities; Definitive
Global Securities;
and Individual
Bearer Notes: Until the 40th day following the date of
issuance of a Bearer Note (the "Exchange
Date") and until Final Certification (as
defined below) with respect to such Bearer
Note has occurred, such Bearer Note, together
with all other Bearer Notes that have the
same rank, Original Issue Date, currency of
denomination, redemption and repayment
provisions, Stated Maturity and either fixed
interest rate (in the case of Fixed Rate
Notes) or Base Rate, Initial Interest Rate,
interest reset period, Interest Payment
Dates, Minimum Interest Rate, Maximum
Interest Rate, Spread or Spread Multiplier
and Index Maturity (in the case of Floating
Rate Notes) (all such Bearer Notes herein
referred to collectively as a "Tranche"),
will be represented by a single temporary
Global Security in bearer form without
interest coupons. The Company shall execute,
and the Principal Paying Agent for the Bearer
Notes represented by such temporary Global
Security shall authenticate, such temporary
Global Security upon the same conditions and
in substantially the same manner, and with
the same effect, as a Permanent Global
Security. On or prior to the Closing Date
(which should also be the Original Issue
Date), with respect to such Bearer Notes, the
Principal Paying Agent for such Bearer Notes
shall deposit the temporary Global Security
with a common depositary (the "Depositary")
for Cedel Bank, Societe Anonyme ("CEDEL") and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear
System ("Euroclear") in the manner specified
below under "Details for Settlement". The
interest of each beneficial owner of such
temporary Global Security will be credited to
the appropriate account with CEDEL or
Euroclear, as specified below under "Details
for Settlement".
On or after the Exchange Date and provided
B-4
that Final Certification (as described below)
has occurred, the interest of the beneficial
owner of such Bearer Note in the temporary
Global Security shall be canceled and such
Bearer Note, together with all other Bearer
Notes of the Tranche as to which Final
Certification has occurred, shall thereafter
be represented by a Permanent Global Security
in bearer form without interest coupons held
in London by the Depositary. The interest of
the beneficial owner of such Bearer Note in
such Permanent Global Security will be
credited to the appropriate account with
CEDEL or Euroclear.
The beneficial owner of an interest in a
Permanent Global Security may, at any time,
upon 30 days' notice to the Principal Paying
Agent for the Bearer Notes represented by
such Permanent Global Security, given by such
beneficial owner through either CEDEL or
Euroclear, as the case may be, exchange its
beneficial interest in such Permanent Global
Security for one or more individual Bearer
Notes (with coupons attached, if appropriate)
equal in aggregate principal amount to such
beneficial interest. To effect such exchange,
the interest of the beneficial owner of such
Bearer Note in such Permanent Global Security
shall be canceled and one or more individual
Bearer Notes shall be issued to such
beneficial owner, through Euroclear or CEDEL,
as the case may be.
In all events, Bearer Notes will be delivered
by the Principal Paying Agents only outside
the United States.
B-5
Final Certification: Final Certification with respect to a
temporary Global Security shall mean the
delivery by Euroclear or CEDEL, as the case
may be, to the Principal Paying Agent for
the Bearer Notes represented by such
Permanent Global Security of a signed
certificate (a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the Bearer
Notes, dated no earlier than the Exchange
Date for such Bearer Notes or, if an interest
payment on the Bearer Notes shall be due
prior to the Exchange Date, dated no earlier
than such Interest Payment Date, to the
effect that Euroclear or CEDEL, as the case
may be, has received certificates
("Certificates of Non-U.S. Beneficial
Ownership") in the form set forth in
Appendix 2 hereto with respect to each of
such Bearer Notes, dated no earlier than ten
days before such Exchange Date or Interest
Payment Date, as the case may be, signed by
the account holders appearing on its records
as entitled to such Bearer Notes, to the effect
that such Bearer Notes (i) are not
beneficially owned by United States persons
and have not been acquired by or on behalf
of United States persons, (ii) are owned by
United States persons that are (a) foreign
branches of United States financial
institutions purchasing for their own account
or for resale or (b) United States persons
who acquired the Bearer Notes through
foreign branches of U.S. financial
institutions and who hold the Bearer Notes
through such U.S. financial institutions (and
in either case (a) or (b), each such financial
institution has agreed that it will comply
with the requirements of
Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 and the
regulations thereunder), or (iii) are owned by
United States or foreign financial
institutions for purposes of resale during the
restricted period, in which event such
B-6
financial institutions (whether or not also
described in clause (i) or (ii)) shall have
certified that they have not acquired the
Bearer Notes for purposes of resale directly
or indirectly to a United States person or to
a person within the United States or its
possessions.
Payments of Principal: Upon presentation of a Note, the Principal
Paying Agent for such Bearer Note will pay
the principal amount of such Note and the
final installment of interest at Maturity in
immediately available funds. Notes
presented to the Principal Paying Agent for
such Bearer Notes at Maturity for payment
will be canceled in accordance with the
Indenture under which such Bearer Notes
have been issued.
Interest Payments: Interest on each Bearer Note will accrue
from the Original Issue Date of such Bearer
Note and will be calculated and paid in the
manner described in such Bearer Note and
the Prospectus, each as defined in the
Agency Agreement, as supplemented by the
applicable Pricing Supplement; provided,
however, that interest in respect of any
portion of a temporary Global Security for
which Final Certification has not been made
shall not be paid until Final Certification is
received in respect of that portion.
B-7
Payments of Principal Upon receipt of Bearer Notes to be repaid as
and Interest Upon set forth in such Notes, the Trustee or
Exercise of Optional Principal Paying Agent for such Notes shall
Repayment: give notice to the Company not less than 20
calendar days prior to
each Optional Repayment
Date of such Optional
Repayment Date and of
the principal amount of
Bearer Notes to be
repaid on such Optional
Repayment Date.
On or prior to any
Optional Repayment
Date, the Company shall
deposit with such
Trustee or such
Principal Paying Agent
an amount of money
sufficient to pay the
Optional Repayment
Price, and accrued
interest thereon to
such date, of all the
Notes or portions
thereof which are to be
repaid on such date.
Such Trustee or such
Principal Paying Agent
will use such money to
repay such Notes
pursuant to the terms
set forth in such
Notes.
Procedure for Rate The Company and the Agent will discuss
Setting and Posting: from time to time the aggregate principal
amount of, the issuance
price of, and the
interest rates to be
borne by, Bearer Notes
that may be sold as a
result of the
solicitation of orders
by the Agent. If the
Company decides to set
prices of, and rates
borne by, any Bearer
Notes in respect of
which the Agent is to
solicit orders (the
setting of such prices
and rates to be
referred to herein as
"posting") or if the
Company decides to
change prices or rates
previously posted by
it, it will promptly
advise the Agent of the
prices and rates to be
posted.
B-8
Acceptance of Orders: If the Company posts prices and rates as
provided above, the Agent as agent for and
on behalf of the Company shall promptly
accept orders received by it to purchase
Bearer Notes at the prices and rates so
posted, subject to (1) any instructions from
the Company received by the Agent
concerning the aggregate principal amount
of Bearer Notes to be sold at the prices and
rates so posted or the period during which
such posted prices and rates are to be in
effect, (2) any instructions from the
Company received by the Agent changing or
revoking any posted prices and rates,
(3) compliance with the securities laws of
the United States and all other jurisdictions
and with the selling restrictions contained in
the Agency Agreement and (4) the Agent's
right to reject any such offer as provided
below.
If the Company does not
post prices and rates
and the Agent receives
an order to purchase
Bearer Notes, or, if
while posted prices and
rates are in effect,
the Agent receives an
order to purchase
Bearer Notes on terms
other than those posted
by the Company, the
Agent will promptly
advise the Company by
telephone of any such
order other than orders
rejected by the Agent
as provided below. The
Company will have the
sole right to accept
any such order to
purchase Bearer Notes
and may reject any such
order in whole or in
part.
The Agent may, in its
discretion reasonably
exercised, reject any
order to purchase
Bearer Notes received
by it in whole or in
part.
B-9
Preparation of If any order to purchase a Bearer Note is
Pricing Supplement: accepted by or on behalf of the Company,
the Company, with the
approval of the Agent,
will prepare a pricing
supplement (a "Pricing
Supplement") reflecting
the terms of such
Bearer Note, will file
ten copies thereof with
the Commission in
accordance with the
applicable paragraph of
Rule 424(b) under the
Act, will supply such
copies thereof to the
Agent as the Agent may
request[,][and] will
supply one copy to the
Principal Paying Agent
for such Bearer Note
[and will, on the
Agent's behalf, file
five copies of such
Pricing Supplement with
the National
Association of
Securities Dealers,
Inc. (the "NASD")]. The
Principal Paying Agent
for such Bearer Note
will cause such Pricing
Supplement to be
delivered to the
Trustee for such Bearer
Note, to each
additional Paying Agent
for such Bearer Note
outside the United
States and to the
Listing Agent. The
Agent will cause a
Pricing Supplement to
be delivered to the
purchaser of the Bearer
Note.
In each instance that a
Pricing Supplement is
prepared, the Agent
will affix copies of
the Pricing Supplement
to Prospectuses prior
to their use. Outdated
Pricing Supplements,
and the Prospectuses to
which they are attached
(other than those
retained for files),
will be destroyed.
B-10
Suspension of The Company reserves the right, in its sole
Solicitation; discretion, to instruct the Agent to suspend
Amendment or at any time, for any period of time or
Supplement: permanently, the solicitation of orders to
purchase Bearer Notes. Upon receipt of
such instructions, the
Agent will forthwith
suspend solicitation of
orders to purchase
Bearer Notes from the
Company until such time
as the Company has
advised it that such
solicitation may be
resumed.
In the event that at
the time the Company
suspends solicitation
of purchases there
shall be any orders
outstanding for
settlement, the Company
will promptly advise
the Agent and each of
the Principal Paying
Agents whether such
orders may be settled
and whether copies of
the Prospectus as in
effect at the time of
the suspension,
together with the
appropriate Pricing
Supplement, may be
delivered in connection
with the settlement of
such orders. The
Company will have the
sole responsibility for
such decision and for
any arrangements that
may be made in the
event that the Company
determines that such
orders may not be
settled or that copies
of such Prospectus may
not be so delivered. If
the Company decides to
amend or
supplement the
Registration Statement
(as defined in the
Agency Agreement) or
the Prospectus (except
for an amendment or
supplement relating to
an offering of
Securities other than
the Notes or to an
offering of Warrants or
providing solely for
the specification of or
a change in the
maturity dates, the
interest rates, the
issuance prices or
other terms of any
Notes), it will
promptly advise the
Agent and the Trustees
and will furnish the
Agent and the Trustees
with the proposed
amendment or supplement
and with such
certificates and
opinions as are
required, all in
accordance with the
terms of the Agency
Agreement. The Company
will file with the
Commission any
supplement to the
Prospectus relating to
B-11
the Bearer Notes, provide the Agent with
copies of any such supplement, and confirm to
the Agent that such supplement has been filed
with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Delivery of
Prospectus: A copy of the Prospectus and a Pricing
Supplement relating to a Bearer Note must
accompany or precede any written offer of
such Note, confirmation of the purchase of
such Note and payment for such Note by its
purchaser. If notice of
a change in the terms
of the Bearer Notes is
received by the Agent
between the time an
order for a Bearer Note
is placed and the time
written confirmation
thereof is sent by the
Agent to a customer or
his agent, such
confirmation shall be
accompanied by a
Prospectus and Pricing
Supplement setting
forth the terms in
effect when the order
was placed. Subject to
the second preceding
paragraph, the Agent
will deliver a
Prospectus and Pricing
Supplement as herein
described with respect
to each Bearer Note
sold by it. The
Principal Paying Agent
for such Bearer Note
will make such delivery
if such Note is sold
directly by the Company
to a purchaser (other
than the Agent).
Confirmation: For each order to purchase a Bearer Note
solicited by the Agent and accepted by or on
behalf of the Company, the Agent will issue
a confirmation to the purchaser, with a copy
to the Company, setting forth the details set
forth below, delivery and payment
instructions and the language required by the
U.S. Treasury Regulations.
B-12
Settlement: Subject to Section 5 of the Agency
Agreement, the Closing Date with respect to
any order to purchase Bearer Notes accepted
by or on behalf of the Company will be the
third day next succeeding the date of
acceptance, or if such day is a day on which
commercial banks in New York City or
London or CEDEL or Euroclear are required
or authorized to be closed, the next
succeeding day on which commercial banks
in New York City and London and
Euroclear and CEDEL are not required or
authorized to be closed (a "Business Day")
unless otherwise agreed by the purchaser
and the Company and shall be specified
upon acceptance of such offer.
Details for Settlement: For each offer to purchase a Bearer Note that
is accepted by or on behalf of the Company,
the Agent will provide (unless provided by
the purchaser directly to the Company) by
telephone the following information to the
Company:
1. Principal or face amount.
2. Series.
3. Stated Maturity.
4. In the case of a Fixed Rate Book-
Entry Note, the interest rate and
reset, redemption, repayment and
extension provisions (if any) or, in
the case of a Floating Rate Book-
Entry Note, the Base Rate, Initial
Interest Rate (if known at such time)
Interest Reset Period, Interest Reset
Dates, Index Maturity, Spread and/or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and reset,
redemption, repayment and
extension provisions (if any).
B-13
5. Interest Payment Dates and the
Interest Payment Period.
6. Amortization provisions, if any.
7. Settlement date and Issue Date, if
different.
8. Specified currency.
9. Denominated currency, Indexed
Currency, Base Exchange Rate, and
the Determination Date, if
applicable.
10. Price.
11. Agent's commission, determined as
provided in the Agency Agreement.
12. Whether such
Book-Entry Note
is an OID Note
and, if so, the
total amount of
OID, the yield to
maturity and the
initial accrual
period OID.
13. Any other terms necessary to
describe the Book-Entry Note.
14. Agent's account number at CEDEL
or Euroclear.
The Agent will advise the Company and the
Principal Paying Agent for such Bearer Note
of the foregoing information (unless provided
by the purchaser directly to the Company) for
each offer to purchase a Bearer Note
solicited by the Agent and accepted by the
Company in time for the Principal Paying
Agent for such Bearer Note to prepare and
authenticate the temporary Global Security
and deliver it at least one day prior to
settlement to the Depositary in London. The
Principal Paying Agent for such Bearer Note
will instruct Euroclear or CEDEL, as the case
may be, to credit such
B-14
Bearer Note to the distribution account of
such Principal Paying Agent with Euroclear or
CEDEL, as the case may be, for onward credit
to the account of the Agent against payment.
Concurrently therewith and in consideration
thereof, the Agent for such Bearer Note will
give instructions to Euroclear or CEDEL, as
the case may be, to credit the account of the
Principal Paying Agent for such Bearer Note
against delivery of such Bearer Note with an
amount equal to the initial public offering
price of such Bearer Note, less the
applicable commission determined as provided
in Section 2 of the Agency Agreement. The
Principal Paying Agent for such Bearer Note
will remit all such funds received to the
designated account of the Company. The
Principal Paying Agent for such Bearer Note
will notify the Agent of both the Euro-clear
and CEDEL Reference Numbers for such Bearer
Note and will notify the Listing Agent of the
issuance of such Bearer Note. Before
accepting any order to purchase a Bearer Note
to be settled in less than three Business
Days, the Company shall verify that the
Principal Paying Agent for such Bearer Note
will have adequate time to prepare and
authenticate the temporary Global Security
that will represent such Bearer Note.
The Agent will provide appropriate
documentation to the Principal Paying Agent
for such Bearer Note, including the
information necessary for the preparation and
authentication of the temporary Global
Security that will represent such Bearer
Note. Prior to preparing such temporary
Global Security for delivery (but in any case
no later than 10:00 AM, London time, on the
Business Day next preceding the Closing Date
therefor), the Principal Paying Agent for
such Bearer Note will confirm receipt of such
instruction to the Agent by telephone.
B-15
Bearer Note Upon receipt of appropriate documentation
Deliveries and Cash and instructions with respect to the Bearer
Payment: Notes constituting a Tranche, the Company
will cause the
Principal Paying Agent
for such Bearer Notes
to prepare and
authenticate a
temporary Global
Security representing
such Tranche and to
insert thereon (1) the
rank, (2) the principal
amount of such Tranche,
(3) the Original Issue
Date, (4) the Stated
Maturity, (5) the
interest rate (in the
case of a Fixed-Rate
Note) and redemption
and repayment
provisions (if any) or
the Base Rate, Initial
Interest Rate, Index
Maturity, Spread or
Spread Multiplier,
Minimum Interest Rate
and Maximum Interest
Rate (in the case of a
Floating Rate Note) and
redemption and
repayment provisions
(if any) and (6) any
other terms required to
be inserted thereon.
On the Closing Date,
the Principal Paying
Agent for the Bearer
Notes represented by
such Tranche will
credit such Bearer Note
to its distribution
account with CEDEL or
Euroclear and the Agent
will make payment to
such Principal Paying
Agent against delivery
of such Bearer Note,
through Euroclear or
CEDEL, as the case may
be, in immediately
available funds, in an
amount equal to the
issuance price of such
Bearer Note less the
Agent's commission. The
Principal Paying Agent
for such Bearer Note
will remit all such
funds received to the
designated account of
the Company.
Such payment shall be
made by the Agent only
upon prior receipt by
the Agent of
immediately available
funds from or on behalf
of the purchaser unless
the Agent decides, at
its option, to advance
its own funds for such
payment against
subsequent receipt of
funds from the
purchaser.
B-15
Failure to Settle: If on the relevant Issue Date the Agent does
not pay the subscription price due from it in
respect of any Note (the "Defaulted Note")
and, as a result, the Defaulted Note remains
in the distribution account of the Principal
Paying Agent for such Note with Euroclear
or CEDEL after such Issue Date (rather than
being credited to the Agent's account against
payment), such Principal Paying Agent will
continue to hold the Defaulted Note to the
order of the Company.
If such Principal
Paying Agent pays an
amount (the "Advance")
to the Company on the
basis that a payment
(the "Payment") has
been, or will be,
received from the
relevant Agent and if
the Payment has not
been, or is not,
received by such
Principal Paying Agent
on the date such
Principal Paying Agent
pays the Company, the
Company shall upon
being requested to do
so repay to such
Principal Paying Agent
the Advance and shall
pay interest (on a 360
days basis) sufficient
to cover any overdraft
costs incurred by such
Principal Paying Agent,
as certified by such
Principal Paying Agent,
until the earlier of
repayment in full of
the Advance and receipt
in full by such
Principal Paying Agent
of the Payment.
If the Agent, at its
own option, has
advanced its own funds
for payment against
subsequent receipt of
funds from the
purchaser, and if the
purchaser shall fail to
make payment for the
Bearer Note on the
Closing Date therefor,
the Agent will promptly
notify the Principal
Paying Agent for such
Bearer Note, the
Depositary and the
Company by telephone,
promptly confirmed in
writing (but no later
than the next Business
Day). In such event the
Agent shall instruct
Euroclear or CEDEL, as
the case maybe, to
transfer such Defaulted
Note to the
distribution account of
the Principal Paying
Agent for such Bearer
Note who will
B-17
continue to hold the
Defaulted Note to the
order of the Company.
Upon (i) confirmation
from such Principal
Paying Agent in writing
(which may be by telex
or telecopy) that such
Principal Paying Agent
is holding the
Defaulted Note for the
account of the Company,
and (ii) confirmation
from the Agent in
writing (which may be
given by telex or
telecopy) that the
Agent has not received
payment from the
purchaser (the matters
referred to in clauses
(i) and (ii) are
referred to hereinafter
as the
"Confirmations"), the
Company will promptly
pay to the Agent an
amount in immediately
available funds equal
to the amount
previously paid by the
Agent in respect of
such Bearer Note. Such
payment will be made
not later than the
Business Day following
the date of receipt of
the Confirmations. The
Principal Paying Agent
for such Bearer Note
and the Depositary will
make such revisions to
the temporary Global
Security representing
such Bearer Note as are
necessary to reflect
the cancellation of
such portion of such
Global Security.
If a purchaser shall
fail to make payment
for such Bearer Note
for any reason other
than the failure of the
Agent to provide the
necessary information
to the Company as
described above for
settlement or to
provide a confirmation
to the purchaser within
a reasonable period of
time as described above
or otherwise to satisfy
its obligation
hereunder or in the
Agency Agreement, and
if the Agent shall have
otherwise complied with
its obligations
hereunder and in the
Agency Agreement, the
Company will reimburse
the Agent on an
equitable basis for its
loss of the use of
funds during the period
when they were credited
to the account of the
Company.
B-18
Principal Paying Nothing herein shall be deemed to require
Agents Not to Risk either Principal Paying Agent to risk or
Funds: expend its own funds in connection with any
payment to the Company,
or the Agent or the
purchaser, it being
understood by all
parties that payments
made by the Principal
Paying Agents to the
Company, or the Agent
or a purchaser shall be
made only to the extent
that funds are provided
to the Principal Paying
Agents for such
purpose.
Authenticity of The Company will cause each Principal
Signatures: Paying Agent to furnish the Agent from time
to time with the
specimen signatures of
each of such Principal
Paying Agent's
officers, employees or
agents who has been
authorized by such
Principal Paying Agent
to authenticate Bearer
Notes (including Global
Securities representing
Bearer Notes), but the
Agent will have no
obligation or liability
to the Company or to
either Principal Paying
Agent in respect of the
authenticity of the
signature of any
officer, employee or
agent of the Company or
either Principal Paying
Agent on any Bearer
Note.
Payment of Expenses: The Agent shall forward to the Company, on
a monthly basis, a statement of the
out-of-pocket expenses incurred by the
Agent during that month that are
reimbursable to it pursuant to the terms of
the Agency Agreement. The Company will
remit payment to the Agent currently on a
monthly basis.
Advertising Costs: The Company will determine with the Agent
the amount of advertising that may be
appropriate in soliciting orders to purchase
the Bearer Notes. Advertising expenses will
be paid by the Company.
B-19
APPENDIX 1
[FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CEDEL]
CERTIFICATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
Medium Term Notes, Series [H][I]
(the "Notes")
This is to certify that, based solely on
certifications we have received in writing, by tested telex or by
electronic transmission from member organizations appearing in
our records as persons being entitled to a portion of the
principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Medium-Term Note
Administrative Procedures attached to the Selling Agency
Agreement relating to the Notes, as of the date hereof, _________
principal amount of the above-captioned Notes (i) is owned by
persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that are (a)
foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
("financial institutions") purchasing for their own account or
for resale, or (b) United States persons who acquired the Notes
through foreign branches of United States financial institutions
and who hold the Notes through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its
own behalf or through its agent, that we may advise the Issuer or
the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which
United States or foreign financial institutions described in
clause (iii) above (whether or not also described in clause (i)
or (ii)) have certified that they have not acquired the Notes for
purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
We further certify (i) that we are not making
available herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) any portion of the
temporary global Note excepted in such certifications and (ii)
that as of the date hereof we have not received any notification
from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange (or, if
relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as the date hereof.
B-Appendix 1-1
We understand that this certification is required in
connection with certain tax laws of the United States. In
connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such
proceedings.
Dated: ______________, 199__1
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK,
Brussels office,
as operator of the Euroclear
System]
or
[CEDEL S.A.]
By
--------
1 [The earlier of the Exchange Date and the first
Interest Payment Date on the applicable Notes.]
B-Appendix 1-2
APPENDIX 2
[FORM OF CERTIFICATION TO BE GIVEN
BY AN ACCOUNT HOLDER OF EUROCLEAR OR CEDEL]
CERTIFICATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
Medium Term Notes, Series [H][I]
This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Notes (the
"Notes") held by you for our account (i) are owned by person(s)
that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"),
(ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Notes through
foreign branches of United States financial institutions and who
hold the Notes through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise the Issuer or
the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Notes is a United States or foreign
financial institution described in clause (iii) above (whether or
not also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the
Notes for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United
States of America (including the States and the District of
Columbia); and its "possessions" include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on
or prior to the date on which you intend to submit your
certification relating to the Notes in accordance with your
Operating Procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification
it may be assumed that this certification applies as of such
date.
This certification excepts and does not relate to
$______ of principal amount of the Notes as to which we are not
able to certify and as to which we understand exchange and
B-Appendix 2-1
delivery of definitive Notes (or, if relevant, exercise of any
rights or collection of any interest) cannot be made until we do
so certify.
We understand that this certification is required in
connection with certain tax laws of the United States. In
connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such
proceedings.
Dated: _________________, 19__
[To be dated no earlier than
the 10th day before the earlier
of the Exchange Date and the
first Interest Payment Date
on the Notes]
[Name of Account Holder]
By:_________________________
(Authorized Signatory)
Name:
Title:
B-Appendix 2-2
EXHIBIT C
FORM OF TERMS AGREEMENT
Attention: Subject in all respects to the terms and conditions
contained in the Global Selling Agency Agreement dated December
5, 1997 (the "Global Selling Agency Agreement"), among Salomon
Brothers Inc, ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International
Limited, Salomon Brothers Hong Kong Limited, Salomon Brothers
Aktiengesellschaft and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., the
undersigned agrees to purchase the following Notes of ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Holdings Inc.:
Principal Amount: Issue Price:
Purchaser: Original Issue Date:
Initial Interest Rate: Stated Maturity:
Reoffering Rate:
Reoffering Price:
[ ] Varying prices from time to time related to prevailing
prices at the time of resale
[ ] Fixed price of __% of Principal Amount
Specified Currency (If other than U.S. dollars):
Authorized Denominations:
(If other than as set forth in the Prospectus Supplement)
Dual Currency Note: [ ] Yes (see attached) [ ] No
Optional Payment Currency:
Designated Exchange Rate:
Base Rate: [ ] CD Rate [ ] Commercial Paper Rate [ ] Federal Funds Rate
[ ] LIBOR Telerate [ ] LIBOR Reuters [ ] Treasury Rate
[ ] Treasury Rate Constant Maturity [ ] Prime Rate [ ] ▇. ▇. ▇▇▇▇▇ Rate
[ ] Eleventh District Cost of Funds Rate [ ] Other (see attached)
Interest Reset Period Index Maturity:
or Interest Reset Dates:
Interest Payment Dates: Accrue to Pay: [ ] Yes [ ] No
Indexed Principal Note: [ ] Yes (see attached) [ ] No
Floating Rate: [ ] Indexed Interest Rate: [ ] (see attached)
Spread Multiplier: Spread (+/-):
Spread Reset [ ] The Spread or Spread Multiplier may not be
changed prior to Stated
Maturity.
[ ] The Spread or Spread Multiplier may be changed prior to
Stated Maturity (see attached).
Optional Reset Dates (if applicable):
Maximum Interest Rate: Minimum Interest Rate:
Inverse Floating Rate Note: [ ] Yes (see attached) [ ] No
Initial Fixed Interest Rate: Reset Fixed Reference Rate:
Floating Rate / Fixed Rate Note: [ ] Yes (see attached) [ ] No
Amortizing Note: [ ] Yes [ ] No
Amortization Schedule:
Optional Redemption: [ ] Yes [ ] No
Optional Redemption Dates:
Redemption Prices:
Bond Yield to Maturity: Bond Yield to Call:
Optional Repayment: [ ] Yes [ ] No
Optional Repayment Dates: Optional Repayment Prices:
Optional Extension of Stated Maturity: [ ] Yes [ ] No
Final Maturity:
Discount Note: [ ] Yes [ ] No
Total Amount of OID: Yield to Maturity:
Renewable Note: [ ] Yes (see attached) [ ] No
Special Election Interval (if applicable):
Amount (if less than entire principal amount)
as to which election may be exercised:
Place of Delivery of Notes:
Method of Payment for the Notes:
Requirements for delivery, if any, of opinions of counsel,
certificates from the Company or its officers or a letter from
the Company's independent public accountants:
Other terms:
The provisions of the Global Selling Agency Agreement
and the related definitions are incorporated by reference herein
and shall be deemed to have the same force and effect as if set
forth in full herein.
Between the date of this Agreement and the Settlement
Date with respect to this Agreement, you will not, without the
undersigned's prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company
substantially similar to the Medium-Term Notes (other than (i)
the Medium-Term Notes to be sold pursuant to this Agreement and
(ii) commercial paper issued in the ordinary course of business),
except as may otherwise be provided herein.
Date:
[Purchaser]
By__________________________
Accepted: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY HOLDINGS INC.
By_________________________
EXHIBIT D
FORM OF AGENT ACCESSION CONFIRMATION - PROGRAM
To: [Name and address of new Agent]
[date]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
U.S. $11,710,346,786 Series H and Series I Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of
December 5, 1997 (which agreement, as amended from time to time,
is herein referred to as the "Agency Agreement") entered into in
respect of the above Medium-Term Note Program and hereby
acknowledge receipt of your Agent Accession Letter to us dated [
].
In accordance with Section 2(c) of the Agency Agreement we hereby
confirm that, with effect from the date hereof, you shall become
a party to, and a[n] [U.S. Agent] [International Agent] [DM
Agent] under, the Agency Agreement, vested with all the
authority, rights and powers, and subject to all the duties and
obligations of a[n] [U.S.] [International] [DM] Agent as if
originally named as such under the Agency Agreement.
Yours faithfully,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
By:
Name:
Title:
cc: Principal Paying Agents
Trustees
Existing Agents
EXHIBIT E
FORM OF AGENT ACCESSION LETTER - PROGRAM
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Holdings, Inc
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[date]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
U.S. $11,710,346,786 Series H and Series I Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of
December 5, 1997, entered into in respect of the above
Medium-Term Note Program and made between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Holdings Inc. (the "Company") and the Agents party thereto (which
agreement, as amended from time to time, is herein referred to as
the "Agency Agreement").
We confirm that we are in receipt of the documents referenced
below (except to the extent we have waived delivery of such
documents):
- a copy of the Agency Agreement;
- a copy of all documents referred to in Section 5 of the Agency Agreement; and
- a letter in a form approved by ourselves from each of the
legal advisers referred to in Section 5 of the Agency
Agreement addressed to ourselves and giving us the full
benefit of the existing legal opinions as of the date of
such existing legal opinions,
and have found them to our satisfaction.
For the purposes of Section 9 of the Agency Agreement our notice
details are as follows: (insert name, address, telephone,
telcopy, telex and attention).
In consideration of the Company appointing us as a[n] [U.S.]
[International] [DM] Agent under the Agency Agreement, we hereby
undertake, for the benefit of the Company and each of the other
Agents, that we will perform and comply with all the duties and
obligations expressed to be assumed by a[n] [U.S.]
[International] [DM] Agent under or pursuant to the Agency
Agreement. We also undertake to deliver to The Depository Trust
Company of New York such pricing letters as it may reasonably
require from us in connection with the offer and sale of the
Notes.
This letter is governed by, and shall be construed in accordance
with, the laws of the State of New York.
Yours faithfully,
[Name of new Agent]
By: _______________________
Name:
Title:
cc: Principal Paying Agents
Trustees
Existing Agents
EXHIBIT F
FORM OF AGENT ACCESSION CONFIRMATION - NOTE ISSUE
To: [Name and address of new Agent]
[date]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
U.S.$11,710,346,786 Series H and Series I Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of
December 5, 1997 (which agreement, as amended from time to time,
is herein referred to as the "Agency Agreement") entered into in
respect of the above Medium-Term Note Program and hereby
acknowledge receipt of your Agent Accession Letter to us dated [
].
In accordance with Section 2(c) of the Agency Agreement we hereby
confirm that, with effect from the date hereof solely in respect
of the issue of [ ] Notes due [ ] (the "Issue"), you shall become
a party to, and a[n] [U.S.] [International] [DM] Agent under, the
Agency Agreement, vested with all the authority, rights and
powers, and subject to all duties and obligations of a[n] [U.S.]
[International] [DM] Agent in relation to the Issue as if
originally named as such under the Agency Agreement.
Such appointment is limited to the Issue and is not for any other
issue of Notes of the Company pursuant to the Agency Agreement
and such appointment will terminate upon issue of the Notes
comprising the Issue but without prejudice to any rights, duties
or obligations which have arisen prior to such termination.
Yours faithfully,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
By:____________________________
Name:
Title:
cc: Principal Paying Agents
Trustees
EXHIBIT G
FORM OF AGENT ACCESSION LETTER - NOTE ISSUE
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Holdings Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
U.S.$11,710,346,786 Series Hand Series I
Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of
December 5, 1997, entered into in respect of the above
Medium-Term Note Program and made between the Company and the
Agents party thereto (which agreement, as amended from time to
time, is herein referred to as the "Global Selling Agency
Agreement").
We confirm that we are in receipt of the documents referenced
below (except to the extent that we have waived delivery of such
documents):
- a copy of the Agency Agreement; and
- a copy of all documents referred to in Section 5
of the Agency Agreement
and have found them to our satisfaction
For the purposes of Section 9 of the Agency Agreement our notice
details are as follows: (insert name, address, telephone,
telecopy, telex and attention).
In consideration of the Company appointing us as a[n] [U.S.]
[International] [DM] Agent solely in respect of the issue of [ ]
Notes due [ ] (the "Issue") under the Agency Agreement, we hereby
undertake, for the benefit of the Company and each of the other
Agents, that in relation to the Issue we will perform and comply
with all the duties and obligations expressed to be assumed by
a[n] [U.S.] [International] [DM] Agent under or pursuant to the
Agency Agreement.
We acknowledge that such appointment is limited to the Issue and
is not for any other issue of Notes of the Company pursuant to
the Agency Agreement and that such appointment will terminate
upon issue of the Notes comprising the Issue but without
prejudice to any rights, duties or obligations which have arisen
prior to such termination.
This letter is governed by, and shall be construed in accordance
with, the laws of the State of New York.
Yours faithfully,
[Name of new Agent]
By:_________________________
Title:
cc: Principal Paying Agents
Trustees
EXHIBITS H-K
FORMS OF OPINIONS, CERTIFICATES AND COMFORT LETTERS