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EXHIBIT 1.1
TEXTRON FINANCIAL CORPORATION
Up to $1,125,000,000
Medium-Term Notes, Series E
Due 9 months or more from the Date of Issue
DISTRIBUTION AGREEMENT
As of June 28, 2000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Barclays Capital Inc.
Chase Securities Inc.
Deutsche Bank Securities Inc.
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
First Union Securities, Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
UBS Warburg LLC
Ladies and Gentlemen:
Textron Financial Corporation, a Delaware corporation (the
"Company"), confirms its agreement with each of you (individually, an "Agent",
and collectively, the "Agents") with respect to the issue and sale by the
Company of up to $1,125,000,000 aggregate principal amount of its Medium-Term
Notes, Series E, due 9 months or more from the date of issue (the "Notes"). The
Notes will be issued under an Indenture dated as of December 9, 1999 (the
"Indenture"), between the Company and SunTrust Bank, as trustee (the "Trustee").
The Company has authorized the issuance of Notes to and through the Agents
pursuant to the terms of this Agreement. The Notes will be issued in registered
form. Each Note will be represented by either a single global security in
registered form without coupons delivered to the Trustee as agent for The
Depository Trust Company ("DTC") and recorded in the book-entry system
maintained by DTC or, if otherwise provided in an applicable supplement to the
Prospectus (as defined below), by a certificate delivered to the holder thereof
or a person designated by such holder.
Subject to the terms and conditions stated herein and subject
to the reservation of the right of the Company to sell Notes directly to
investors on its own behalf and further subject to the understanding that
nothing in this Agreement shall impair or restrict (a) the Company's right to
sell securities with terms similar or identical to any Note independently of the
continuous
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offering of Notes contemplated by this Agreement, or (b) other than as set forth
in Section 2(a), the Company's ability to enter into additional Distribution
Agreements (without any Agent's consent) for the purpose of appointing
additional agents to solicit offers to purchase Notes (which Distribution
Agreements shall otherwise contain terms and provisions substantially identical
to this Agreement), the Company hereby appoints the Agents as its agents for the
purpose of soliciting offers to purchase Notes from the Company by others. In
addition, an Agent may also purchase Notes as principal for resale to others
and, if the Company determines to sell Notes directly to an Agent and if
requested by such Agent, the Company will enter into a Terms Agreement relating
to such sale (a "Terms Agreement") in accordance with the provisions of Section
2(b).
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-88509), including a prospectus, relating to the Notes. Such registration
statement, including the exhibits thereto, as amended by Amendment Nos. 1 and 2
thereto, is hereinafter referred to as the "Registration Statement;" provided,
however, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the rules and regulations promulgated under the
Securities Act (the "Rule 462(b) Registration Statement") then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. The Company proposes to file
with the Commission from time to time, pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Notes. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus". The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") as well as any
Pricing Supplement (as defined herein) relating to the Notes specifically
relating to the Notes, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b). As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "Prospectus Supplement" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement" and "amendment" or "amend" as used herein shall include
all documents filed by the Company pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), subsequent to the date of the Basic
Prospectus that are deemed to be incorporated by reference in the Prospectus.
Notwithstanding anything to the contrary above in this paragraph, the Company
shall have the right at any time and from time to time to substitute for the
Registration Statement one or more other registration statements (each a
"Substitute Registration Statement") relating to the Notes and the offering and
sale thereof from time to time in accordance with Rule 415 under the Securities
Act, by written notification of such substitution to each of the Agents and the
Trustee. From and after the date of such notification, such Substitute
Registration Statements shall become the Registration Statement as defined in
this paragraph and as used for all purposes throughout this Agreement.
1. Representations and Warranties. The Company represents and
warrants to each Agent as of the Commencement Date (as hereinafter defined), as
of each date on which the Company accepts an offer to purchase Notes, as of each
date the Company delivers Notes and as of each date the Registration Statement,
the Basic Prospectus or the Prospectus is amended or
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supplemented (each of the times referenced above being referred to herein as a
"Representation Date"), as follows (it being understood that such
representations and warranties shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended and
supplemented to each such date):
(a) The Company meets the requirements for use of Form S-3
under the Securities Act; the Registration Statement (or any Rule 462(b)
Registration Statement) has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement (or any
Rule 462(b) Registration Statement) has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with;
the Indenture has been duly qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act"); at the respective times that the Registration Statement
(including any Rule 462(b) Registration Statement) and any post-effective
amendment thereto (including the filing of the Company's most recent annual
report on Form 10-K with the Commission) became effective and at each
Representation Date, the Registration Statement (including any Rule 462(b)
Registration Statement) and any amendments thereto complied and will comply in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; each preliminary prospectus and
Prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the rules
and regulations promulgated under the Securities Act; each preliminary
prospectus and the Prospectus delivered to the applicable Agent(s) for use in
connection with the offering of Notes are identical to any electronically
transmitted copies thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇"), except to the extent
permitted by Regulation S-T promulgated under the Securities Act ("Regulation
S-T"); and at the date hereof, at the date of the Prospectus and each amendment
or supplement thereto and at each Representation Date, neither the Prospectus
nor any amendment or supplement thereto included or will include an untrue
statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply to
(i) that part of the Registration Statement which shall constitute the Statement
of Eligibility and Qualification under the Trust Indenture Act or (ii)
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by the Agents expressly for use in the Registration Statement
or the Prospectus.
(b) There has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries taken as a whole from that set forth in the
Prospectus and the documents incorporated by reference therein.
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(c) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly authorized by
the Company, and this Agreement has been duly executed and delivered by the
Company.
(d) The Indenture and the Support Agreement, dated May 25,
1994 between the Company and Textron Inc., a Delaware corporation ("Textron")
(the "Support Agreement"), have each been duly authorized, executed and
delivered by the Company and each constitutes a valid and binding agreement of
the Company enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity.
(e) Immediately after any sale of Notes by the Company
hereunder or under any Terms Agreement, the aggregate amount of Notes that shall
have been issued and sold pursuant to the Registration Statement will not exceed
the amount of debt securities registered under the Registration Statement.
(f) The Notes have been duly authorized by the Company for
offer, sale, issuance and delivery pursuant to this Agreement and, when executed
by the Company, authenticated by the Trustee and issued in accordance with the
Indenture and delivered pursuant to the provisions of this Agreement and any
Terms Agreement against payment thereof, will constitute valid and legally
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally and by general
principles of equity and except as rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability and except further as enforcement thereof may be limited by (x)
requirements that a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (y) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
(g) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries taken as a whole.
(h) Each of Cessna Finance Corporation, Litchfield Financial
Corporation, RFC Capital Corporation, Systran Financial Services Holding Company
and Textron Business Credit, Inc. (collectively, the "Significant Subsidiaries")
is a corporation duly organized, validly
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existing and in good standing in the jurisdiction of its incorporation, with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries taken as a whole. The Company owns of record, directly or
indirectly, all of the outstanding shares of common stock of each of the
Significant Subsidiaries (with the exception of Textron Business Credit, Inc.,
as to which the Company owns over 99% of the issued and outstanding common
stock) free and clear of any lien, adverse claim, security interest, equity or
other encumbrance.
(i) The execution and delivery of this Agreement, any Terms
Agreement, the Indenture and any other agreement or instrument entered into by
the Company in connection with the transactions contemplated by the Prospectus
and the consummation of the transactions contemplated herein and therein will
not contravene any provision of applicable law or the Certificate of
Incorporation or By-Laws of the Company or any other agreement or instrument
binding upon the Company or any of the Company's Significant Subsidiaries or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or such Significant Subsidiaries, except such
contraventions as would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), business, properties,
net worth or results of operations of the Company and its subsidiaries taken as
a whole and no consent, approval or authorization or order of, or qualification
with, any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, any Terms Agreement, the
Indenture or any other agreement or instrument entered into by the Company in
connection with the transactions contemplated by the Prospectus, or the
consummation of the transactions contemplated hereby, except such as are
required pursuant to state securities or Blue Sky Laws.
(j) The Company is not and, after giving effect to the
offering and sale of the Notes, will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(k) The statements included under the caption "Legal
Proceedings" in the Company's most recently filed annual report on Form 10-K, as
supplemented by any current reports on Form 8-K filed in the fiscal year
immediately following the fiscal year to which such annual report relates and/or
its most recent quarterly report on Form 10-Q, filed pursuant to the Exchange
Act, insofar as they describe statements of law or legal conclusions are
accurate and fairly present the information required to be shown.
(l) The Support Agreement has not been amended since the date
thereof and remains in full force and effect.
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2. Solicitations as Agent; Purchases as Principal.
(a) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, each Agent
agrees, severally and not jointly, to use its reasonable best efforts to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify. So long as this
Agreement shall remain in effect with respect to any Agent, the Company shall
not, without the consent of such Agent, solicit or accept offers to purchase, or
sell, any debt securities with a maturity at the time of original issuance of 9
months or more except pursuant to this Agreement, any Terms Agreement, or except
pursuant to a private placement not constituting a public offering under the
Securities Act or except in connection with a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a continuous
offering of medium-term debt securities; provided, that, if, from time to time
the Company is approached by a prospective agent offering to solicit a specific
purchase of Notes, the Company may engage such agent with respect to such
specific purchase, provided that (i) such agent is engaged on terms
substantially similar (including the same commission schedule) to the applicable
terms of this Agreement and (ii) the Agents are given notice of such proposed
purchase within five days after the consummation of such purchase. These
provisions shall not limit Section 3(f) hereof or any similar provision included
in any Terms Agreement.
The Company reserves the right, in its sole discretion, to
instruct any or all of the Agents to suspend at any time, for any period of time
or permanently, the solicitation of offers to purchase Notes. Upon receipt of
notice from the Company, each Agent will forthwith suspend solicitations of
offers to purchase Notes from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed. During the period of
time that such solicitation is suspended, the Company shall not be required to
deliver any certificates, opinions or letters in accordance with Sections 5(b),
5(c) and 5(d); provided, however, that if any of the events described in Section
5(b), 5(c) or 5(d) shall have occurred during the period of suspension, no Agent
shall be required to resume soliciting offers to purchase Notes until the
Company has delivered such certificates, opinions and letters as such Agent may
reasonably request.
The Company agrees to pay to each Agent, as consideration for
the sale of each Note and receipt of payment therefor resulting from a
solicitation made by such Agent, a commission in the form of a discount from the
purchase price of such Note equal to the following percentage of the purchase
price of such Note:
Term Commission Rate
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
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From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
It is understood that no commission will be payable with
respect to any offer to purchase Notes accepted by the Company unless and until
the sale of such Notes is consummated.
Each Agent is authorized to solicit offers to purchase Notes
only in the principal amount of $1,000 or any amount in excess thereof which is
an integral multiple of $1,000. The Company shall have the sole right to accept
offers to purchase Notes and may reject any offer in whole or in part. Each
Agent shall have the right to reject any offer to purchase Notes that such Agent
reasonably considers to be unacceptable, and any such rejection shall not be
deemed a breach of such Agent's agreements contained herein. "Reasonable" with
respect to an offer shall be determined by such Agent by reference to
then-prevailing interest rates and the interest rates then specified by the
Company with respect to offers to sell particular Notes.
(b) If requested by an Agent in connection with a sale of
Notes directly to such Agent as principal for resale to others, the Company will
enter into a separate Terms Agreement reasonably satisfactory to the Company and
such Agent that will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent in accordance with the terms of this Agreement
and the Terms Agreement. Each Terms Agreement shall be substantially in the form
of Exhibit A hereto but may take the form of an exchange of any standard form of
written telecommunication between such Agent and the Company or may be an oral
agreement confirmed in writing (including by a facsimile transmission). An
Agent's commitment to purchase Notes as principal 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 agreement by an Agent to purchase Notes as principal (whether or not set
forth in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date thereof, the price
to be paid to the Company for such Notes and the time and place of delivery of
and payment for such Notes (each such date, a "Settlement Date") and the
requirements for the opinions, officer's certificate and comfort letter pursuant
to Sections 4(c), (d) and (e) hereof.
Unless otherwise agreed to between the Company and such Agent
in a Terms Agreement, any Note sold to an Agent (i) shall be purchased by such
Agent 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 Agent at varying prices from time to
time or, if set forth in the applicable Terms Agreement, at a fixed public
offering price. In connection with any resale of Notes purchased, an Agent may
use a selling or dealer
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group and may reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal and
one or more of such Agents shall fail at the Settlement Date to purchase the
Notes which it or they are obligated to purchase (the "Defaulted Notes"), then
the nondefaulting Agents shall have the right, within 24 hours thereafter, to
make arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the Settlement Date for a
period not exceeding seven days in order to effect any required changes.
(c) The purchase price, interest rate or formula, maturity
date and other terms of the Notes specified in Exhibit A hereto (as applicable)
shall be agreed upon between the Company and the applicable Agents and specified
in a pricing supplement to the Prospectus (each, a "Pricing Supplement") to be
prepared by the Company in connection with each sale of Notes. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed in the Medium-Term Notes, Series E Administrative
Procedures (attached hereto as Exhibit B) (the "Procedures"), as amended from
time to time. The Procedures may be amended only by written agreement of the
Company and each Agent and, in the case of amendments which affect the rights,
duties or obligations of the Trustee, with the written agreement of the Trustee.
To the extent the Procedures in effect from time to time conflict with any
provision of this Agreement, the provisions of this Agreement shall govern. The
Company will furnish a copy of the Procedures from time to time in effect to the
Trustee.
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(d) The documents required to be delivered by Section 4 of
this Agreement shall be delivered at the office of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
counsel to the Company, not later than 2:00 P.M., New York City time, on the
date hereof (the "Commencement Date"), or at such other time and/or place as you
and the Company may agree upon in writing.
(e) [INTENTIONALLY OMITTED]
(f) Each Agent represents that it is a broker-dealer
registered under the Exchange Act.
(g) In soliciting purchases of the Notes from the Company on
an agency basis, each Agent is acting solely as an agent for the Company and not
as principal. Each such Agent will communicate to the Company, orally, each
offer for the purchase of Notes solicited by it on an agency basis other than
those offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any offer for the purchase of Notes,
in whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by it and accepted by the Company but
each Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been solicited by
such Agent on an agency basis and accepted by the Company, the Company shall (i)
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to such Agent any commission
to which it would otherwise be entitled absent such default.
(h) The Company shall not sell or approve the solicitation of
offers for the purchase of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining a record with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
3. Agreements. The Company agrees with each Agent that:
(a) The Company will promptly notify such Agent of (i) the
filing of any amendment or supplement to the Prospectus, other than filings
relating solely to securities other than the Notes or solely establishing the
terms of particular Notes to be sold pursuant hereto, (ii) the filing and
effectiveness of any amendment to the Registration Statement, other than filings
relating solely to securities other than the Notes, (iii) any request by the
Commission for any amendment of the Registration Statement or any amendment of
or supplement to the Prospectus or for any additional information, other than
any request relating solely to securities other than the Notes, (iv) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The Company
will use reasonable efforts to prevent the issuance of
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any such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which, in the opinion of counsel to the Agents, the
Registration Statement or the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
when the Prospectus, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in such Agent's reasonable opinion or in the
opinion of counsel to the Company or the Agents, it is necessary at any time to
amend or supplement the Registration Statement or the Prospectus, as then
amended or supplemented, to comply with law, the Company will promptly notify
the Agents by telephone (with confirmation in writing) to suspend solicitation
of offers to purchase Notes and, if so notified by the Company, such Agent shall
forthwith suspend such solicitation and cease using the Prospectus as then
amended or supplemented and cease sales of any Notes such Agent may own as
principal. If the Company shall decide to amend or supplement the Registration
Statement or Prospectus as then amended or supplemented, it shall so advise such
Agent promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus as then amended or
supplemented that will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus to such Agent
in such quantities as such Agent may reasonably request. If such amendment or
supplement and any documents, certificates, opinions and letters furnished to
such Agent pursuant to Sections 5(b), 5(c) and 5(d) in connection with the
preparation and filing of such amendment or supplement are satisfactory in all
respects to such Agent, upon the filing of such amendment or supplement with the
Commission or effectiveness of an amendment to the Registration Statement, such
Agent will resume the solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 3(b), until the distribution
of any Notes any Agent may own as principal has been completed, if any event
described above in this paragraph (b) occurs, the Company will, at its own
expense, forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus as then
amended or supplemented, reasonably satisfactory to such Agent, and will supply
such amended or supplemented Prospectus to such Agent in such quantities as such
Agent may reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to such Agent pursuant to Sections
5(b), 5(c) and 5(d) in connection with the preparation and filing of such
amendment or supplement are reasonably satisfactory to such Agent, upon the
filing of such amendment or supplement with the Commission or effectiveness of
an amendment to the Registration Statement, such Agent may resume its resale of
Notes as principal.
(c) The Company will make generally available to its security
holders and to such Agent as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158)
covering twelve month periods beginning after the "effective date" (as defined
in Rule 158 under the Securities Act) of the Registration Statement with respect
to each
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sale of Notes. It is understood by the parties hereto that if the Company
provides the information required by Section 11(a) under the Securities Act
pursuant to Rule 158 thereunder, the foregoing sentence would not require any
filing or other action by the Company other than its periodic filings on Form
10-K and Form 10-Q.
(d) The Company will furnish to such Agent, promptly after
the filing thereof with the Commission, copies of its annual report on Form 10-K
(including the audited financial statements of the Company for the preceding
fiscal year), its quarterly reports on Form 10-Q with respect to each of the
first three quarters of any fiscal year and its reports on Form 8-K (other than
reports relating solely to securities other than the Notes); provided, however,
that if on the date of such filing any Agent shall have suspended solicitation
of purchases of the Notes in its capacity as agent pursuant to a request from
the Company, and if such Agent shall not hold any Notes as principal purchased
pursuant to a Terms Agreement, the Company shall not be obligated to furnish
copies of such reports to such Agent until such time as the Company shall
determine that solicitation of purchases of the Notes should be resumed by such
Agent or shall subsequently enter into a new Terms Agreement with such Agent.
(e) The Company will use its reasonable efforts to qualify
the Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as such Agent shall reasonably request and will maintain such
qualifications for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any consent
to service of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(f) The Company will not, from the date of any Terms
Agreement with such Agent or other agreement by such Agent to purchase Notes as
principal and continuing to and including the later of (i) the termination of
the trading restrictions for the Notes purchased thereunder, as notified to the
Company by such Agent and (ii) the related Settlement Date, offer, sell,
contract to sell, issue, grant any option for the sale of or otherwise dispose
of any debt securities of the Company which both mature 9 months or more after
such Settlement Date and are substantially similar to the Notes, without the
prior written consent of such Agent.
(g) The Company will promptly notify the Agents in writing of
any downgrading or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change in the rating accorded any of
the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; provided, however, that if on the date of such downgrading or
such review or receipt of such notice, any Agent shall have suspended
solicitation of purchases of the Notes in its capacity as agent pursuant to a
request from the Company, and if such Agent shall not hold any Notes as
principal purchased pursuant to a Terms Agreement, the Company shall not be
obligated to notify such Agent of such downgrading or such review or receipt of
such notice until such time as the Company shall determine that solicitation of
purchases of the Notes should be resumed by such Agent or shall subsequently
enter into a new Terms Agreement with such Agent.
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(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the Notes,
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the preparation of any
Blue Sky Memoranda, (v) the printing and delivery to such Agent in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto, and of the Basic Prospectus and any amendments or supplements thereto,
(vi) the preparation, reproduction and delivery to such Agent of copies of the
Indenture and any Blue Sky Memoranda, (vii) any fees charged by rating agencies
for the rating of the Notes, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
("NASD"), (ix) the reasonable fees and disbursements of counsel for the Agents
incurred in connection with the establishment of the program to which this
Agreement relates and incurred from time to time in connection with the offering
and sale of the Notes, (x) if applicable, the fees and expenses incurred in
connection with any listing of Notes on a securities exchange and (xi) any
out-of-pocket expenses incurred by such Agent with the approval of the Company.
Notwithstanding the foregoing, any advertising relating to the
offer or sale of any Notes or this Agreement undertaken by any Agent will be for
the account of such Agent and will not be paid for or reimbursed by the Company.
Each of the Agents hereby agrees that no such advertising will be undertaken by
it without the prior oral or written approval thereof by the Company.
(i) The Company will deliver to each Agent, without charge, as
many copies of each preliminary prospectus as such Agent may reasonably request,
and the Company hereby consents to the use of such copies for purposes permitted
by the Securities Act. The Company will furnish to each Agent, without charge,
such number of copies of the Prospectus (as amended or supplemented) as such
Agent may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(j) The Company will prepare, with respect to any Notes to be
sold to or through one or more Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by the
Agents. The Company will deliver such Pricing Supplement no later than 11:00
a.m., New York City time, on the business day following the date of the
Company's acceptance of the offer for the purchase of such Notes and will file
such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act not later
than the close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used.
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4. Conditions of the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase Notes as agent of the
Company, the obligations of each Agent to purchase Notes pursuant to any Terms
Agreement or otherwise and the obligations of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, the accuracy of the statements of the Company's
officers made in each certificate furnished pursuant to the provisions hereof
prior to or concurrently with any such solicitation or purchase, the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed, in each case, at the time of such
solicitation or purchase and to the following additional conditions precedent:
(a) With respect to the obligation of each Agent to solicit
offers to purchase Notes, on or after the date hereof, or on or after the date
of execution of any Terms Agreement obligating such Agent to purchase Notes, or
on or after the date of acceptance by the Company of an offer to purchase Notes,
as applicable, there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading, of a review
indicating possible negative implications or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the securities of the Company or Textron by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(b) With respect to the obligation of each Agent to solicit
offers to purchase Notes, on or after the date hereof, or on or after the date
of execution of any Terms Agreement obligating such Agent to purchase Notes, or
on or after the date of acceptance by the Company of an offer to purchase Notes,
as applicable, there shall not have occurred any of the following: (i) any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or prospects or operations of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated by the
Prospectus or as set forth in or contemplated by its most recent annual report
on Form 10-K, as supplemented by any current reports on Form 8-K and/or its most
recent quarterly report on Form 10-Q, filed pursuant to the Exchange Act
(excluding, for purposes of this paragraph, any amendments or supplements filed
after the date of any such Terms Agreement), (ii) any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
prospects, or operations of Textron and its subsidiaries, taken as a whole,
except as set forth in or contemplated by its most recent annual report on Form
10-K, as supplemented by any current reports on Form 8-K and/or its most recent
quarterly report on Form 10-Q, filed pursuant to the Exchange Act (excluding,
for purposes of this paragraph, any amendments or supplements filed after the
date of any such Terms Agreement), (iii) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (iv) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (v) a general moratorium on commercial banking
activities shall have been declared by either Federal or New York State
authorities, (vi) any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable judgment of
the Agents, is
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material and adverse, or (vii) there shall have come to the attention of such
Agent that the Prospectus, at the time it was required to be delivered to a
purchaser of such Notes, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time of such
delivery, not misleading and, in the case of any of the events specified in
clauses (a) (i) through (vii), such event, in the reasonable judgment of the
Agents, makes it impracticable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as principal pursuant
to the applicable Terms Agreement or otherwise.
(c) On the Commencement Date and, if called for by any
agreement by such Agent to purchase Notes as principal, on the corresponding
Settlement Date, such Agent shall have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP, counsel for the Company, substantially to the
effect that:
(A) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable
against the Company in accordance with its terms
(except as (1) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights
generally and (2) the availability of equitable
remedies may be limited by equitable principles of
general applicability and except further as
enforceability thereof may be limited by (x)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law or (y) governmental authority to
limit, delay or prohibit the making of payments
outside the United States) and the Indenture has been
duly qualified under the Trust Indenture Act;
(B) the Notes have been duly authorized by
the Company for offer, sale, issuance and delivery
pursuant to this Agreement and, when executed and
authenticated in accordance with the provisions of
the Indenture and sold to any purchaser through any
Agent as agent or to any Agent as principal pursuant
to any Terms Agreement, will constitute valid and
legally binding obligations of the Company
enforceable against the Company in accordance with
their terms and will be entitled to the benefits of
the Indenture, except as (1) enforceability thereof
may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights
generally and (2) the availability of equitable
remedies may be limited by equitable principles of
general applicability and except further as
enforceability thereof may be limited by (x)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in
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respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined
pursuant to applicable law or (y) governmental
authority to limit, delay or prohibit the making of
payments outside the United States;
(C) the execution and delivery of, and the
performance by the Company of its obligations under,
this Agreement have been duly authorized by the
Company and this Agreement has been duly executed and
delivered by the Company;
(D) the execution and delivery of this
Agreement, the Indenture, the Notes and, if this
opinion is required by any agreement by an Agent to
purchase Notes as principal, any applicable Terms
Agreement by the Company and the consummation by the
Company of its obligations herein and therein do not
contravene any provision of applicable law of the
State of New York (except as rights to indemnity and
contribution under this Agreement may be limited by
applicable law, regulation or public policy) or the
Certificate of Incorporation or By-Laws of the
Company;
(E) the Company is not and, immediately
after giving effect to the offering and sale of the
Notes, will not be an "investment company" within the
meaning of the Investment Company Act;
(F) the statements in the Prospectus under
the heading "Description of the Notes" and "Plan of
Distribution", insofar as such statements constitute
a summary of legal matters, documents or proceedings
referred to therein, have been reviewed by such
counsel and are correct in all material respects; and
(G) such counsel is of the opinion that the
Registration Statement and Prospectus, as amended or
supplemented, if applicable (except as to financial
statements contained therein or omitted therefrom and
the notes thereto and the schedules and other
financial data included therein, as to which such
counsel need not express any opinion) comply as to
form in all material respects with the Securities Act
and the rules and regulations thereunder.
(ii) The General Counsel or any Assistant General
Counsel of the Company shall have furnished to the Agents a
written opinion, dated as of such date, substantially to the
effect that:
(A) the Company is a corporation duly
organized and validly existing in good standing under
the laws of the State of Delaware and has the
corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Registration Statement and the
Prospectus, and is duly registered and qualified to
conduct its business
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and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of
its business requires such registration or
qualification, except where the failure so to
register or qualify does not have a material adverse
effect on the condition (financial or other),
business, properties, net worth or results of
operations of the Company and its subsidiaries taken
as a whole;
(B) each Significant Subsidiary is a
corporation duly organized, validly existing and in
good standing in the jurisdiction of its
incorporation and has the corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of
its business requires such registration or
qualification, except where the failure so to
register or qualify does not have a material adverse
effect on the condition (financial or other),
business, properties, net worth or results of
operations of the Company and its subsidiaries taken
as a whole;
(C) all of the issued and outstanding
capital stock of each Significant Subsidiary has been
duly authorized and validly issued and is fully paid
and non-assessable, and the Company owns of record,
directly or indirectly, all of the outstanding shares
of common stock of each of the Significant
Subsidiaries (with the exception of Textron Business
Credit, Inc., as to which the Company owns over 99%
of the issued and outstanding common stock) free and
clear of any lien, adverse claim, security interest,
equity or other encumbrance;
(D) the execution and delivery of this
Agreement, the Indenture, the Notes and, if this
opinion is required by any agreement by an Agent to
purchase Notes as principal, any applicable Terms
Agreement by the Company and the performance by the
Company of its obligations herein and therein do not
contravene any provision of applicable law (except as
rights to indemnity and contribution under this
Agreement may be limited by applicable law,
regulation or public policy) or, to such counsel's
knowledge after due inquiry, any other agreement or
instrument binding upon the Company or any of the
Significant Subsidiaries or any judgment, order or
decree of any governmental body, agency or court
having jurisdiction over the Company or any
Significant Subsidiary, except such contraventions as
would not, individually or in the aggregate, have a
material adverse effect on the condition (financial
or otherwise), business, properties, net worth or
results of operations of the Company and its
subsidiaries taken as a whole, and no consent,
approval or authorization or order of, or
qualification with, any governmental body or agency
is required for the performance by the Company of its
obligations under this
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Agreement or the Indenture, and the consummation of
the transactions contemplated thereby, except such as
are required pursuant to state securities or Blue Sky
Laws;
(E) the statements included under the
caption "Legal Proceedings" in the Company's annual
report on Form 10-K, as supplemented by any current
reports on Form 8-K and/or its most recent quarterly
report on Form 10-Q, filed pursuant to the Exchange
Act, insofar as they describe statements of law or
legal conclusions are accurate and fairly present the
information required to be shown; and
(F) such counsel (1) is of the opinion that
each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except
as to financial statements contained therein or
omitted therefrom and the notes thereto and the
schedules and other financial data included therein,
as to which such counsel need not express any
opinion) complied when so filed as to form in all
material respects with such act and the rules and
regulations thereunder, (2) has no reason to believe
that (except for the financial statements contained
therein or omitted therefrom and the notes thereto
and the schedules and other financial data included
therein, as to which such counsel need not express
any belief) any part of the Registration Statement
(including the documents incorporated by reference
therein), filed with the Commission pursuant to the
Securities Act, when such part became effective,
contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that
the Registration Statement and Prospectus, as amended
or supplemented, if applicable (except as to
financial statements contained therein or omitted
therefrom and the notes thereto and the schedules and
other financial data included therein, as to which
such counsel need not express any opinion) comply as
to form in all material respects with the Securities
Act and the Trust Indenture Act and the rules and
regulations thereunder and (4) has no reason to
believe, and nothing has come to such counsel's
attention that causes such counsel to believe, that
(except for the financial statements contained
therein or omitted therefrom and the notes thereto
and the schedules and other financial data included
therein, as to which counsel need not express any
belief) the Registration Statement, when it became
effective, the Prospectus as of its date and the
Prospectus, as amended or supplemented, if
applicable, through the Closing Date contained or
contains any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided
that such counsel may state that such counsel's
opinion and belief is based upon such counsel's
participation in the preparation of the Registration
Statement and the
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Prospectus and any amendment and supplements thereto
(including the documents incorporated by reference
therein) and review and discussion of the contents
thereof (including the documents incorporated by
reference therein), but is without independent check
or verification except as specified.
(iii) The opinion, dated as of such date, of in-house
counsel to Textron, substantially to the effect that:
(A) Textron has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct of
its business or the ownership or leasing of property
requires such qualification and where the failure to
be qualified or in good standing would have a
material adverse effect upon its operations or
financial condition;
(B) the Support Agreement has been duly
authorized, executed and delivered by Textron and is
a valid and binding agreement of Textron enforceable
against Textron in accordance with its terms by the
parties thereto and by any creditor of the Company
which lends funds to the Company (each, a
"Third-Party Beneficiary"), including the holders of
the Notes issued by the Company pursuant to this
Agreement (but with respect to any Third-Party
Beneficiary only to the extent to which the Company
is indebted to such Third-Party Beneficiary for money
borrowed), except as: (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights
generally and (b) the availability of equitable
remedies may be limited by equitable principles of
general applicability; and
(C) the execution, delivery and performance
by Textron of the Support Agreement does not
contravene any provisions of currently applicable
law, any current provision of the Certificate of
Incorporation or By-Laws of Textron, each as of the
date of such opinion, or, to the best of such
counsel's knowledge, any current agreement or other
instrument currently binding upon Textron, and no
consent, approval or authorization of any
governmental body is required in connection with the
performance of the Support Agreement.
(iv) The opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Agents, with respect to the incorporation of the Company, the
validity of the Notes, the Registration Statement, the
Prospectus and such other related matters as the Agents may
reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
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(d) The Representatives shall have received certificates,
dated the Commencement Date and, if called for by any agreement by such Agent to
purchase Notes as principal, on the corresponding Settlement Date, of an
executive officer of the Company in which such officer, on behalf of the Company
and to his/her knowledge, shall state that (i) no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for such purpose are pending or threatened by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change in the
condition, financial or otherwise, earnings, business or operations of the
Company and its subsidiaries, taken as a whole, except as set forth in or
contemplated by the Prospectus and (ii) the representations and warranties of
the Company contained in this Agreement are true and correct as of such date.
(e) On the Commencement Date and, if called for by any
agreement by such Agent to purchase Notes as principal, on the corresponding
Settlement Date, Ernst & Young LLP shall have furnished to such Agent a letter
or letters from ▇▇▇▇▇ & Young LLP or another nationally recognized firm of
independent public accountants reasonably satisfactory to the Agents, dated as
of the Commencement Date or such Settlement Date, as the case may be, in form
and substance satisfactory to such Agent containing statements and information
of the type ordinarily included in accountant's "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus, as amended or supplemented.
(f) The Registration Statement (including the Rule 462(b)
Registration Statement) has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement shall have
been issued under the Securities Act and no proceedings for that purpose shall
have been instituted or shall be pending or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Agents.
(g) On the date hereof, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may require for the
purpose of enabling such counsel to pass upon the issuance and sale of the Notes
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations and warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be satisfactory in form and substance to the Agents and counsel to such Agents.
If any condition specified in this Section shall not have been
fulfilled as of the relevant date required, this Agreement and any Terms
Agreement may be terminated as to any Agent by notice by such Agent to the
Company at any time with respect to this Agreement and at or prior to the
applicable Settlement Date with respect to Notes purchased by an Agent pursuant
to a Terms Agreement, and any such termination shall be without liability of any
party to any other party, except that the provisions of Section 3(c) (except
that the Company shall no longer be required to comply with the provisions of
Section 3(c) after it has made generally available to its security holders an
earnings statement (which need not be audited) covering a twelve-month
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period beginning after the date of the last sale of Notes hereunder which
satisfies the provisions of Rule 158 of the Rules and Regulations), the
provisions of Section 3(h), the indemnity and contribution agreements set forth
in Section 6, and the provisions of Sections 2(e), 8 and 12 shall remain in
effect.
5. Additional Agreements of the Company. The Company covenants
and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes, and each sale of Notes to any Agent pursuant to a Terms Agreement, shall
be deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in the most recent certificate
theretofore delivered to the Agents pursuant to Section 4(d) or 5(b), as the
case may be, are true and correct at the time of such acceptance or sale, as the
case may be, and an undertaking that such representations and warranties will be
true and correct at the time of delivery to the purchaser or his agent, or to
the Agents, of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended and supplemented to each such time).
(b) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, offering
price, principal amount, amortization schedules or maturities offered on the
Notes or for a change deemed immaterial in the reasonable opinion of each Agent
or other than by an amendment or supplement relating solely to securities other
than the Notes or solely establishing the terms of particular Notes to be sold
pursuant hereto), the Company shall deliver or cause to be delivered forthwith
to each Agent a certificate signed by an executive officer of the Company, dated
the date of such amendment or supplement, as the case may be, in form reasonably
satisfactory to such Agent, of the same tenor as the certificate referred to in
Section 4(d) modified as necessary to relate to the Registration Statement or
the Prospectus as amended and supplemented to the time of delivery of such
certificate; provided, however, that the Company shall not be required to
furnish any certificates to any Agent pursuant to this paragraph at a time when
such Agent shall have suspended solicitation of purchases of Notes in its
capacity as agent pursuant to instructions of the Company.
(c) Each time the Company furnishes a certificate pursuant to
Section 5(b), the Company shall furnish or cause to be furnished forthwith to
each Agent written opinions of counsel for the Company and Textron. Any such
opinion shall be dated the date of such amendment or supplement, as the case may
be, shall be in a form satisfactory to such Agent and shall be of the same tenor
as the opinions referred to in Section 4(c), but modified to relate to the
Registration Statement or the Prospectus as amended and supplemented to the time
of delivery of such opinions. In lieu of such opinions, counsel last furnishing
such opinions to such Agent may furnish to such Agent letters to the effect that
such Agent may rely on such last opinions to the same extent as though they were
dated the date of such letters (except that statements in such last opinions
will be deemed to relate to the Registration Statement or the Prospectus as
amended and supplemented to the time of delivery of such letters); provided,
however, that no such opinions
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need be furnished to any Agent pursuant to this paragraph at a time when such
Agent shall have suspended solicitation of purchases of Notes in its capacity as
agent pursuant to instructions of the Company.
(d) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental financial information is
incorporated by reference in the Registration Statement or the Prospectus, the
Company shall cause Ernst & Young LLP, or any other nationally recognized firm
of independent public accountants reasonably satisfactory to the Agents,
forthwith to furnish each Agent with a letter, dated the date of such amendment
or supplement, as the case may be, in form satisfactory to such Agent, of the
same tenor as the letter referred to in Section 4(e), with regard to the amended
or supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such letter; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Ernst & Young LLP or such other firm
may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information included
therein of an accounting or financial nature is such that, in the Agents'
reasonable judgment, such letter should cover such other information; provided
further, however, that the Company shall not be required to cause ▇▇▇▇▇ & Young
LLP or another firm of certified public accountants reasonably satisfactory to
the Agents to furnish a letter to any Agent pursuant to this paragraph at a time
when such Agent shall have suspended solicitation of purchases of Notes in its
capacity as agent pursuant to instructions of the Company.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (if used within the period during which
a prospectus is required by law to be delivered and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company shall not be liable to any Agent
under the indemnity agreement in this subsection (a) with respect to any such
loss, claim, damage or liability of such Agent (i) that are caused by any such
untrue statement or omission or alleged untrue statement or omission based on
information furnished in writing to the Company by any Agent expressly for use
therein or (ii) that result from a sale of Notes to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference therein) in any case where such delivery is required
by the Securities Act if the Company has previously furnished copies thereof to
such Agent and the loss, claim, damage or liability results from an untrue
statement or omission of a material fact contained in the Prospectus which was
corrected in the Prospectus (as then amended, supplemented or modified) and
which was identified at such time to such Agent.
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(b) Each Agent agrees severally and not jointly to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company to the same extent
as the foregoing indemnity from the Company to each Agent, but only with
reference to information furnished in writing by such Agent expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the indemnifying party
and the person against whom such indemnity may be sought (the "indemnifying
party") in writing. In case any such proceeding is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Agreement for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the foregoing, in any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Agents in the case of parties indemnified pursuant to the second preceding
paragraph and by the Company in the case of parties indemnified pursuant to the
first preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if final judgment is entered for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any proceeding in respect of which any indemnified party is a
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matters of
such proceeding, and (ii) does not include a statement as to an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable to an indemnified party under the first or second paragraphs hereof
or insufficient in respect of any
22
23
losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and of each Agent participating in the offering of Notes that gave rise to
such losses, claims, damages or liabilities (or actions in respect thereof) (a
"Relevant Agent"), on the other hand 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 of the
Relevant Agent 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 benefit received by the Company
on the one hand and the Relevant Agent on the other shall be deemed to be in the
same proportion as the total net proceeds from the sale of Notes (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Relevant Agent in respect thereof. 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 relates to information supplied by the Company or the
Relevant Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission.
The Company and the Agents agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Agents were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in 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 is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Relevant Agent shall be required to
contribute any amount in excess of the amount by which (x) the sum of (i) the
total price at which the Notes, the purchase of which is the subject of the
claim for contribution and which was solicited by such Relevant Agent, were sold
by the Company and (ii) the total price at which the Notes, the purchase of
which is the subject of the claim for contribution and which such Relevant Agent
purchased as principal and distributed to the public, were offered to the
public, exceeds (y) the amount of any damages which such Relevant Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Agents under this
subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and are not joint.
(e) The remedies provided for in this Section are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity. The indemnity and
contribution agreements contained in this Section and the
23
24
representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by any Agent or on behalf of any Agent or
any person controlling any Agent or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Notes.
7. Termination. This Agreement may be terminated at any time
either (a) by the Company as to any Agent or all of the Agents or (b) by any
Agent, insofar as this Agreement relates to such Agent, in either case, upon the
giving of 30 days' written notice of such termination to the other parties
hereto. In the event of such termination with respect to any Agent, this
Agreement shall remain in full force and effect with respect to any Agent as to
which such termination has not occurred. The termination of this Agreement shall
not require termination of any agreement by any Agent to purchase Notes as
principal, and the termination of any such agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 2(g), the
last two sentences of Section 3(b), Section 3(c) (except that the Company shall
no longer be required to comply with the provisions of Section 3(c) after it has
made generally available to its security holders an earnings statement (which
need not be audited) covering a twelve-month period beginning after the date of
the last sale of Notes hereunder which shall satisfy the provisions of Rule 158
of the Rules and Regulations), 3(h), 6, 8 and 12 shall survive; provided that if
at the time of termination an offer to purchase Notes has been accepted by the
Company but the time of delivery to the purchaser or its agent of such Notes has
not occurred, the provisions of Sections 2(c) and 3 shall also survive. If any
Terms Agreement is terminated, the provisions of Sections 3(c) (except that the
Company shall no longer be required to comply with the provisions of Section
3(c) after it has made generally available to its security holders an earning
statement (which need not be audited) covering a twelve-month period beginning
after the date of the last sale of Notes hereunder which shall satisfy the
provisions of Rule 158 of the Rules and Regulations), 3(h), 6, 8 and 12 and the
last two sentences of Section 3(b) (which shall have been incorporated by
reference in such Terms Agreement) shall survive.
8. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and each Agent set forth in or made
pursuant to this Agreement or any agreement by such Agent to purchase Notes as
principal will remain in full force and effect, regardless of any termination of
this Agreement, any investigation made by or on behalf of such Agent or the
Company or any of the officers, directors or controlling persons referred to in
Section 6 and delivery of and payment for the Notes.
9. Notices. All communications hereunder will be in writing
and shall be deemed to have been duly given if hand delivered, sent by
first-class mail (postage prepaid) or transmitted by facsimile (confirmed in
writing by hand delivery or first-class mail sent on the date of such facsimile
communication) as follows:
if to an Agent, to it at its address set forth on Schedule 1 hereto and if to
the Company, to it at:
24
25
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-6687
Attention: Treasurer
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Company's General Counsel at:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-6687
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10. Successors. This Agreement and any Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and their heirs and legal representatives and the
purchasers of Notes (to the extent expressly provided herein), and no other
person will have any right or obligation hereunder. No purchaser of Notes,
except as provided herein, shall be deemed to be a successor by reason merely of
such purchase.
11. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
13. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
[SIGNATURE PAGES FOLLOW]
25
26
If the foregoing is in accordance with the understanding of the Agents
of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and the acceptance of the Agents shall represent a binding
agreement between the Company and such Agent.
Very truly yours,
TEXTRON FINANCIAL CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BANC OF AMERICA SECURITIES LLC
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Officer
BANC ONE CAPITAL MARKETS, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO DISTRIBUTION AGREEMENT]
27
BARCLAYS CAPITAL INC.
/s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
By: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Secretary, Barclays Capital Inc.
CHASE SECURITIES INC.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
FIRST UNION SECURITIES, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO DISTRIBUTION AGREEMENT]
28
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
UBS WARBURG LLC
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
Debt Capital Markets
[SIGNATURE PAGE TO DISTRIBUTION AGREEMENT]
29
Schedule 1
Name Address for Notices
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: MTN Product Management
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Banc of America Securities LLC ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Banc One Capital Markets, Inc. Corporate Securities Structuring
Banc One Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Barclays Capital Inc. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Chase Securities Inc. Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Medium-Term Note Desk
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
30
Deutsche Bank Securities Inc. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Managing Director
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
First Union Securities, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇
Director
Debt Capital Markets
First Union Securities, Inc.
One First Union Center, TW-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc. Transaction Execution Group
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2
31
UBS Warburg LLC ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Director
UBS Warburg LLC
UBS Warburg Dillon Read
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
3
32
EXHIBIT A
TEXTRON FINANCIAL CORPORATION
Medium-Term Notes, Series E
Terms Agreement
________________
Textron Financial Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 6687
Providence, Rhode Island 02940-6687
Attention:
Re: Distribution Agreement dated as of June 28, 2000
(the "Distribution Agreement")
The undersigned agrees to purchase your Medium-Term Notes, Series E
(the "Notes"), having the following terms:
Fixed Rate Note:
________________________________________________________________________________
Principal Amount: Interest Rate:
Agent's Discount or Commission: Original Issue Date:
Net Proceeds to Issuer: Stated Maturity Date:
________________________________________________________________________________
Interest Payment Dates:
[ ] March 15 and September 15
[ ] Other:
Regular Record Dates
(if other than the last day of February and August):
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity Date. The
[ ] Notes can be redeemed prior to the Stated Maturity Date.
Initial Redemption Date:
Initial Redemption Percentage: %
Annual Redemption Percentage Reduction: _______% until Redemption
Percentage is 100% of the Principal Amount.
Optional Repayment:
[ ] The Notes cannot be repaid prior to the Stated Maturity Date.
[ ] The Notes can be repaid prior to the Stated Maturity Date at the
option of the holder of the Notes.
Optional Repayment Date(s):
Optional Repayment Price(s):
33
Exhibit A
Page 2
Specified Currency (if other than U.S. dollars):
Authorized Denomination (if other than $1,000 and integral multiples thereof):
Exchange Rate Agent:
Original Issue Discount: [ ] Yes [ ] No
Issue Price: %
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Agent:
[ ] ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ [ ] First Union Securities, Inc.
Incorporated [ ] FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
[ ] Banc of America Securities LLC [ ] ▇.▇. ▇▇▇▇▇▇ Securities Inc.
[ ] Banc One Capital Markets, Inc. [ ] ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
[ ] Barclays Capital Inc. [ ] UBS Warburg LLC
[ ] Chase Securities Inc. [ ] Other: _______________
[ ] Deutsche Bank Securities Inc.
Agent acting in the capacity as indicated below:
[ ] Agent [ ] Principal
If as Principal:
[ ] The Notes are being offered at varying prices related to prevailing
market prices at the time of resale.
[ ] The Notes are being offered at a fixed initial public offering price
of ____% of the Principal Amount.
If as Agent:
The Notes are being offered at a fixed initial public offering price of
____% of Principal Amount.
Other Provisions:
Terms are not completed for certain items above because such
items are not applicable.
Floating Rate Note:
________________________________________________________________________________
Principal Amount: Initial Interest Rate:
Agent's Discount or Commission: Original Issue Date:
Net Proceeds to Issuer: Stated Maturity Date:
________________________________________________________________________________
Interest Category
[ ] Regular Floating Rate Note
[ ] Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Interest Rate: %
[ ] Inverse Floating Rate Note
[ ] Fixed Interest Rate: %
Interest Rate Basis or Bases:
[ ] CD Rate [ ] Federal Funds Rate [ ] Prime Rate
[ ] CMT Rate [ ] LIBOR [ ] Other (see attached)
[ ] Commercial Paper Rate [ ] Treasury Rate
34
Exhibit A
Page 3
If LIBOR:
[ ] LIBOR Reuters Page:
[ ] LIBOR Telerate Page:
LIBOR Currency:
If CMT Rate:
CMT Telerate Page:
[ ] Telerate Page 7051
[ ] Telerate Page 7052
[ ] Weekly Average
[ ] Monthly Average
Spread (+/-): Maximum Interest Rate: %
Spread Multiplier: Minimum Interest Rate: %
Index Maturity:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Interest Determination Dates:
Regular Record Date(s):
Calculation Agent (if other than SunTrust Bank):
Day Count Convention:
[ ] Actual/360 for the period from _______ to _______
[ ] Actual/Actual for the period from _______ to _______
[ ] 30/360 for the period from _______ to _______
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity Date. The
[ ] Notes can be redeemed prior to Stated Maturity Date.
Initial Redemption Date:
Initial Redemption Percentage: ____%
Annual Redemption Percentage Reduction: ____% until Redemption
Percentage is 100% of the Principal Amount.
Optional Repayment:
[ ] The Notes cannot be repaid prior to the Stated Maturity Date.
[ ] The Notes can be repaid prior to the Stated Maturity Date at the
option of the holder of the Notes.
Optional Repayment Date(s):
Optional Repayment Price(s):
Specified Currency (if other than U.S. dollars):
Authorized Denomination (if other than $1,000 and integral multiples thereof):
Exchange Rate Agent:
Original Issue Discount: [ ] Yes [ ] No
Issue Price: %
Total Amount of OID:
Yield to Maturity: %
Initial Accrual Period OID:
35
Exhibit A
Page 4
Agent:
[ ] ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ [ ] First Union Securities, Inc.
Incorporated [ ] FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
[ ] Banc of America Securities LLC [ ] ▇.▇. ▇▇▇▇▇▇ Securities Inc.
[ ] Banc One Capital Markets, Inc. [ ] ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
[ ] Barclays Capital Inc. [ ] UBS Warburg LLC
[ ] Chase Securities Inc. [ ] Other: _______________
[ ] Deutsche Bank Securities Inc.
Agent acting in the capacity as indicated below:
[ ] Agent [ ] Principal
If as Principal:
[ ] The Notes are being offered at varying prices related to prevailing
market prices at the time of resale.
[ ] The Notes are being offered at a fixed initial public offering price
of ____% of the Principal Amount.
If as Agent:
The Notes are being offered at a fixed initial public offering price of
____% of the Principal Amount.
Other provisions:
Terms are not completed for certain items above because such items are not
applicable.
Unless otherwise defined herein or in the Distribution
Agreement, terms defined in the Indenture, the Notes or the Prospectus
Supplement shall be used herein as therein defined. The provisions of Sections
1, 2(b), 2(c), 3, 4 and 6 through 13 of the Distribution Agreement and the
related definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein.
The opinions referred to in Section 4(c) of the Distribution
Agreement, the certificate referred to in Section 4(d) of the Distribution
Agreement and the accountants' letter referred to in Section 4(e) of the
Distribution Agreement will be required.
[SIGNATURE PAGE FOLLOWS]
36
Exhibit A
Page 5
[NAME OF PURCHASER]
_________________________________
By:
Title:
Accepted as of the date written above:
TEXTRON FINANCIAL CORPORATION
___________________________________
By:
Title:
37
EXHIBIT B
---------
TEXTRON FINANCIAL CORPORATION
MEDIUM-TERM NOTES, SERIES E, ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes, Series E on a continuous basis by Textron
Financial Corporation (the "Company") pursuant to the Distribution Agreement,
dated as of June 28, 2000 (the "Distribution Agreement") between the Company and
the persons listed on Schedule 1 to the Distribution Agreement (collectively,
the "Agents"). In the Distribution Agreement, each Agent has agreed to use its
best efforts to solicit purchases of the Notes. An Agent, as principal, may
purchase Notes for its own account and if requested by such Agent, the Company
and the Agent will enter into a Terms Agreement, as contemplated by the
Distribution Agreement.
The Notes will be issued pursuant to the provisions of the
Indenture, dated as of December 9, 2000 (the "Indenture"), between the Company
and SunTrust Bank, as trustee (the "Trustee"). The Trustee will be the
Registrar, Calculation Agent (if applicable) and Paying Agent for the Notes, and
will perform the duties specified herein. Notes will bear interest at a fixed
rate (the "Fixed Rate Notes") or at floating rates (the "Floating Rate Notes").
The principal of and interest on the Notes will be payable in U.S. dollars only.
Each Note will be represented by either a Global Security (as defined below)
delivered to the Trustee as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note"), or a
certificate delivered to the holder thereof or a person designated by such
holder (a "Certificated Note"). Except in limited circumstances, an owner of a
Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may subsequently be
amended as the result of changes in DTC's operating procedures, and Certificated
Notes will be issued in accordance with the administrative procedures set forth
in Part II hereof. Unless otherwise defined herein or in the Distribution
Agreement, terms defined in the Indenture, the Notes or the Prospectus
Supplement shall be used herein as therein defined.
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, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of June 23, 2000 (the "Letter of
Representation"), and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated August 16, 1999, and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
38
Exhibit B
Page 2
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
$400,000,000 principal amount of all such Notes
that have the same purchase price, settlement
date, Maturity Date, redemption provisions,
Interest Payment Dates, Original Issue Date and,
in the case of Fixed Rate Notes, Interest Rate or,
in the case of Floating Rate Notes, Initial
Interest Rate, Interest Payment Dates, Interest
Payment Period, Calculation Agent, Base Rate,
Index Maturity, Interest Reset Period, Interest
Reset Dates, Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any) and Maximum
Interest Rate (if any), and any other relevant
terms (collectively "Terms"). Each Global
Security will be dated and issued as of the date
of its authentication by the Trustee. Book-Entry
Notes may only be denominated and payable in U.S.
dollars. No Global Security will represent any
Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a
series of approximately 900 CUSIP numbers
(including tranche numbers) for assignment to
Global Securities representing the Book-Entry
Notes. The Company has obtained from the CUSIP
Service Bureau a written list of series of
reserved CUSIP numbers and has delivered to the
Trustee and DTC the written list of 900 CUSIP
numbers of such series. The Company 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 Company has assigned to
Global Securities. At any time when fewer than
100 of the reserved CUSIP numbers remain
unassigned to Global Securities, the Company, if
it deems necessary, will reserve additional CUSIP
numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to
the Trustee and DTC.
39
Exhibit B
Page 3
Registration: Each Global Security will be registered in the
name of Cede & Co., as nominee for DTC, on the
Security 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 Note,
the "Participants") to act as agent or 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 Note
in the account of such Participants. The
ownership interest of such beneficial owner in
such 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 accompanied 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: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that
represent Book-Entry Notes 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 such a notice, DTC will
send to its Participants (including the Trustee) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the
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, the
Trustee will exchange such Global Securities for a
40
Exhibit B
Page 4
single Global Security bearing the new CUSIP number
and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed $400,000,000
in aggregate principal amount, one Global Security
will be authenticated and issued to represent each
$400,000,000 principal amount of the exchanged Global
Security and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below). In such a case, each of the
Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
Maturities: Each Book-Entry Note will mature on a date nine
months or more from its date of issue.
Notice of Redemption The Trustee will give notice to DTC prior to each
Dates: Redemption Date (as specified in the Note), if
any, at the time and in the manner set forth in
the Letter of Representation.
Denominations: Unless the applicable Pricing Supplement provides
otherwise, 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. Global Securities will be denominated in
principal amounts not in excess of $400,000,000.
If one or more Book-Entry Notes having an
aggregate principal amount in excess of
$400,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be issued
to represent each $400,000,000 principal amount of
such Book-Entry Note or Notes and an additional
Global Security will be 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.
Interest: General. Interest on each Book-Entry Note will
accrue from and including the Original Issue Date
of the Global Security representing such Note for
the first interest period and from and including
the most recent date to which interest has been
paid for all subsequent interest periods. Each
payment of
41
Exhibit B
Page 5
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 and including the Regular Record
Date immediately preceding the Interest Payment Date,
except that at maturity or earlier repurchase or
redemption, the interest payable will include
interest accrued to, but excluding, the maturity date
or the date of repurchase or redemption, as the case
may be (other than a maturity of a Fixed Rate Book
Entry 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). Interest payable at the maturity or upon
repurchase or redemption 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 received 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 weekly
bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding such
Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest payments on Fixed Rate Book-Entry Notes will
be made semiannually on March 15 and September 15 of
each year and at maturity or upon any earlier
repurchase or redemption; provided, however, that in
the case of a Fixed Rate Book-Entry Note issued
between a Regular Record Date and an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding
Regular Record Date.
Floating Rate Book-Entry Notes. Interest payments
will be made on Floating Rate Book-Entry Notes
weekly, monthly, quarterly, semiannually or annually.
Unless otherwise agreed upon, interest will be
payable, in the case of Floating Rate Book-Entry
Notes with a daily, weekly or monthly Interest Reset
Date, on the Wednesday of each week (or Tuesday in
the case of Floating Rate Book-Entry Notes as to
which the
42
Exhibit B
Page 6
Treasury Rate is an applicable interest rate basis),
or the third Wednesday of each month, respectively,
or as specified pursuant to Settlement Procedure "A"
below; in the case of Notes with a quarterly Interest
Reset Date, on the third Wednesday of March, June,
September and December of each year; in the case of
Notes with a semi-annual Interest Reset Date, on the
third Wednesday of the two months of each year
specified pursuant to Settlement Procedure "A" below;
and in the case of Notes with an annual Interest
Reset Date, on the third Wednesday of the month of
each year specified pursuant to Settlement Procedure
"A" below; provided, however, that if any Interest
Payment Date for Floating Rate Book-Entry Notes
(other than the Maturity Date, a repurchase date or a
redemption date) would otherwise be a day that is not
a Business Day with respect to such Floating Rate
Book-Entry Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book-Entry Notes, except in the case of
a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the Business Day immediately preceding the
day that would have otherwise been such Interest
Payment Date; and provided, further, that in the case
of a Floating Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment Date, the
first interest payment will be made on the Interest
Payment Date following the next succeeding Regular
Record Date.
Calculation of Interest: Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated
on the basis of a year of twelve thirty-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined
as set forth in the form of Notes. Unless
otherwise specified in the applicable Pricing
Supplement, interest on Floating Rate Book-Entry
Notes will be calculated on the basis of actual
days elapsed and a year of 360 days except that in
the case of Treasury Rate Notes or CMT Rate Notes,
interest will be calculated on the basis of the
actual number of days in the year.
43
Exhibit B
Page 7
Payments of Principal and Promptly after each Regular Record Date, the Trustee
Interest: will deliver to the Company and DTC a written notice
specifying 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 or any earlier
repurchase or redemption date) and the total of such
amounts. DTC will confirm the amount payable on each
such Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. The Company will pay
to the Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date (other
than at maturity, redemption or earlier repayment),
and the Trustee will pay such amount to DTC at the
times and in the manner set forth below. If any
Interest Payment Date for a Fixed Rate 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 on such payment for the
period from and after such Interest Payment Date. If
any Interest Payment Date for a Floating Rate
Book-Entry Note (other than the Maturity Date, a
repurchase date or a redemption date) 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 Interest Payment Date, except
that, in the case of a Book-Entry LIBOR Note, if such
Business Day is in the next calendar month, such
Interest Payment Date shall be the Business Day
immediately preceding the day that would otherwise
have been such Interest Payment Date with respect to
such Book-Entry LIBOR Note.
On or about the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written
list of principal and interest to be paid on each
Global Security maturing either at maturity or on a
redemption date in the following month. 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 Day
preceding the Maturity Date or redemption date of
such Global Security. The Company will pay to the
Trustee, as the paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity Date or redemption
44
Exhibit B
Page 8
date. The Trustee will pay such amounts to DTC at the
times and in the manner set forth below. If any
Maturity Date or redemption date of a Global Security
representing a Fixed Rate Book-Entry Note or a
Floating Rate 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
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 will cancel such Global
Security in accordance with the terms of the
Indenture and deliver it to the Company.
The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or at
maturity or upon repurchase or redemption shall be
paid by the Company to the Trustee in funds available
for immediate use by the Trustee on such date. The
Company will make such payment on such Global
Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at
the Trustee. The Company will confirm such
instructions in writing to the Trustee. On each
Maturity Date or redemption date or as soon as
possible thereafter, the Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New York
previously specified by DTC in funds immediately
available on such date, each payment of interest or
principal (together with interest thereon) due on
Global Securities on any Maturity Date or redemption
date. On each Interest Payment Date, interest
payments shall be made to DTC in same-day funds in
accordance with existing arrangements between the
Trustee and DTC.
Thereafter 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. Neither the Company nor the
Trustee shall have any responsibility or liability
for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
45
Exhibit B
Page 9
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 directly
to the beneficial owner of such Note.
The Trustee will be responsible for withholding taxes
or interest paid on Notes as required by applicable
law.
Acceptance and Rejection Unless otherwise instructed by the Company, the
of Orders: 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 sole right
to accept orders to purchase Book-Entry Notes and may
reject any such orders in whole or in part. Before
accepting any order to purchase a Book-Entry Note to
be settled in less than three Business Days, the
Company shall verify that the Trustee for such
Book-Entry Note will have adequate time to prepare
and authenticate such Note.
Preparation and Delivery If any order to purchase a Book-Entry Note is
of Pricing Supplement: accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will file such Pricing Supplement with the Commission
in accordance with the applicable paragraph of Rule
424(b) under the Securities Act of 1933, as amended
(the "Act"), and will deliver the number of copies of
such Pricing Supplement to the Agent as the Agent
shall request by the close of business on the
following Business Day. The Agent will cause such
Pricing Supplement to be delivered to the purchaser
of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent receiving such Pricing Supplement
will affix the Pricing Supplement to a Prospectus (as
defined in the Distribution Agreement) prior to its
use. Outdated Pricing Supplements will be destroyed.
Suspension of Subject to the Company's representations,
Solicitation; Amendment warranties and covenants contained in the
or Supplement: Distribution Agreement, the Company may instruct
the Agent to suspend, at any time for
46
Exhibit B
Page 10
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 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 the Trustee 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 Prospectus: A copy of the Prospectus and a Pricing 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 purchasers. 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).
Confirmation: For each order to purchase a Book-Entry Note
solicited by the Agent and accepted 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 Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Company will be settled on or
before the third Business Day next succeeding the
date of acceptance pursuant to the timetable for
settlement set forth below, unless the Company,
the Trustee and the purchaser agree to settlement
on
47
Exhibit B
Page 11
another day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company to or through
the Agent (except pursuant to a Terms Agreement,
as defined in the Distribution Agreement) shall be
as follows:
A. The Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, or, in the
case of a Floating Rate Book-Entry
Note, the Initial Interest Rate (if
known at such time), Calculation
Agent, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Maximum Interest Rate (if any),
redemption, repayment and extension
provisions (if any).
4. The Interest Payment Date(s) and Interest
Payment Period.
5. Redemption and repurchase provisions, if
any.
6. Original Issuance Date.
7. Initial offering price.
8. Agent's commission, if any, determined as
provided in the Distribution Agreement.
9. Specified currency.
10. Settlement Date.
11. Whether such Book-Entry Note is an OID
Note and, if so, the total amount of OID,
the yield to
48
Exhibit B
Page 12
maturity and the initial accrual period OID.
12. Any other applicable Terms.
B. The Company will advise the Trustee by
telephone or electronic transmission
(confirmed in writing at any time on the same
date) of the information set forth in
Settlement Procedure "A" above. The Company
will then assign a CUSIP number to the Global
Security representing such Note and will
notify the Trustee and the Agent of such CUSIP
number by telephone as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the Agent, Standard & Poor's Corporation and
Interactive Data Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which in
the case of Floating Rate Notes which reset
daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Regular
Record Date as defined in the Note) and, if
known, amount of interest payable on such
initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. The numbers of the participants' accounts
maintained by DTC on behalf of the Trustee and
the Agent.
5. Whether such Global Security will represent
any other Book-Entry Note (to the extent known
at such time).
D. The Trustee will complete and authenticate the
Global Security representing such Note.
49
Exhibit B
Page 13
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such
Note to the Agent's participant account and
(ii) debit the Agent's settlement account and
credit the Trustee's settlement account for an
amount equal to the price of such Note less
the Agent's commission, if any. The entry of
such a deliver order shall constitute a
representation and warranty by the Trustee to
DTC that (a) the Global Security representing
such Book-Entry Note has been issued and
authenticated and (b) the Trustee is holding
such Global Security pursuant to the Medium
Term Note Certificate Agreement between the
Trustee and DTC.
G. Unless the Agent purchased such Note as
principal, the Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to the Agent's participant account
and credit such Note to the participant
accounts of the Participants with respect to
such 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 Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"F" and "G" will be settled in accordance with
SDFS operating procedures in effect on the
settlement date.
I. The Trustee will credit to the account of the
Company maintained at Chase Manhattan Bank
located in New York, New York, Account No.
▇▇▇▇-▇▇▇-▇▇▇ (or at such other account at such
other bank in the United States as the Company
may, from time to time, notify the Agents) in
funds available for immediate use in the
amount transferred to the Trustee in
accordance with Settlement Procedure "F".
50
Exhibit B
Page 14
J. Unless the Agent purchased such Note as
principal, the Agent will confirm the purchase
of such Note to the purchaser either by
transmitting to the Participants with respect
to such Note a confirmation order or orders
through DTC's institutional delivery system or
by mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date under the
Indenture.
Settlement Procedures For sales by the Company of Book-Entry Notes to or
Timetable: through the Agent (except pursuant to a Terms
Agreement) for settlement on the first Business
Day after the sale date, Settlement Procedures "A"
through "J" 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 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
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.,
New York City time, respectively, on the first
Business Day after the sale date. If the Initial
Interest Rate for a Floating Rate Book-Entry Note has
not been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedure "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., New York City time, respectively, on the second
Business Day before the settlement
51
Exhibit B
Page 15
date. Settlement Procedure "H" is subject to
extension in accordance with any extension of Fedwire
closing dead-lines and in the other events specified
in the SDFS operating procedures in effect on the
settlement date. If settlement of a Book-Entry Note
is rescheduled or canceled, the Trustee, 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., New York City time, on the
Business Day immediately preceding the scheduled
settlement date.
Procedures upon Company's Company Notice to Trustee regarding Exercise of
Exercise of Optional Optional Reset. Not less than 45 or more than 60
Reset or Extension of days before an Optional Reset Date as set forth in
Maturity: 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 Certificated
Note, to extend the Stated Maturity of such Note, it
will so notify the Trustee for such Book-Entry Note
not 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
52
Exhibit B
Page 16
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 Book-Entry
Note will mail a notice, first class, postage
prepaid, to the Holder of the Book-Entry 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
Book-Entry Note.
Trustee Notice to Company regarding Option to be
Repaid. If, after receipt of either a Reset Notice or
an Extension Notice, the Holder of a Book-Entry Note
exercises the option for repayment by tendering the
Book-Entry Note to be repaid as set forth in the
Book-Entry 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 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, so notify the
Trustee for the affected Book-Entry Note. The Trustee
will immediately thereafter notify the Holder of such
Book-Entry Note, by first class mail, postage
prepaid, of the new higher interest rate or Spread or
Spread Multiplier applicable to such Book-Entry Note.
Trustee Notice to Company regarding Holder Revocation
of Option to be Repaid. If, after the Holder of a
Book-Entry Note has tendered such Note for repayment
pursuant to an Extension Notice or a Reset Notice,
such Holder revokes such tender for repayment, the
Trustee for such Book-Entry Note shall give notice to
the Company not less than five days prior
53
Exhibit B
Page 17
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's Company Notice to Trustee regarding Exercise of
Exercise of Optional Optional Redemption. At least 45 days prior to
Redemption: the date on which it intends to redeem a
Book-Entry Note, the Company will notify the Trustee
for such Book-Entry 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 Book-Entry Note, the Trustee for such
Book-Entry Note will, at least 30 days before the
Redemption Date for such Book-Entry Note, mail a
notice, first class, postage prepaid, to the Holder
of such Book-Entry Note, informing such Holder of the
Company's exercise of such option with respect to
such Book-Entry Note.
Payments of Principal and Trustee notice to Company of Option to be Repaid.
Interest Upon Exercise of Upon receipt of notice of exercise of the option
Optional Repayment for repayment and the Book-Entry Notes to be to
(Except Pursuant repaid as set forth in such Notes, the Trustee for
Company's Exercise of such Book-Entry Notes shall (unless such notice
Optional Reset or was received pursuant to the Company's exercise of:
Optional Extension) 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
Book-Entry Notes to be repaid on such Optional
Repayment Date.
54
Exhibit B
Page 18
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant
to Settlement Procedure "F", upon written
direction from the Company, the Trustee may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to the
Trustee's participant account, provided that the
Trustee's participant account contains a principal
amount of the Global Security representing such
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 will
mark such Global Security "canceled", make
appropriate entries in the Trustee's records and
send such canceled Global Security 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 Trustee will exchange such Global Security for
two Global Securities, one of which shall
represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the
other of which shall represent the remaining
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number 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 Agent may enter
SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the related
actions described in the preceding paragraph.
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.
55
Exhibit B
Page 19
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
Trustee will provide, in accordance with Settlement
Procedures "D" and "F", for the authentication and
issuance of a Global Security representing the
Book-Entry Notes to be represented by such Global
Security and will make appropriate entries in its
records.
Risk of Funds by Trustee: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payments to the Company, the
Agents or DTC or any holder, it being understood
by all parties that payments made by the Trustee
to the Company or the Agents, or DTC, or any
holder shall be made only to the extent that funds
are provided to the Trustee for such purpose.
56
Exhibit B
Page 20
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Issuance: Each Note will be dated and issued as of the
date of its authentication by the Trustee. Each
Note will bear an Original Issue Date, which
will be (i) with respect to an Original Note (or
any portion thereof), its original issuance date
(which will be the settlement date) and (ii)
with respect to any Note (or portion thereof)
issued subsequently upon transfer or exchange of
a Note or in lieu of a destroyed, lost or stolen
Note, the original issuance date of the
predecessor Note, regardless of the date of
authentication of such subsequently issued
Note. Unless otherwise provided in the Pricing
Supplement, the principal of and interest on the
Notes will be payable in U.S. dollars only.
Registration: Notes will be issued only in fully registered
form without coupons.
Transfers and Exchanges: A Note may be presented for transfer or exchange at
the principal corporate trust office of the Trustee
in the City of New York. Notes will be exchangeable
for other Notes having identical terms but
different denominations without service charge.
Notes will not be exchangeable for Book-Entry
Notes.
Maturities: Each Note will mature on a date nine months or
more from its date of issue.
Denomination: Unless otherwise specified in the applicable
Pricing Supplement, the denomination of any Note
will be a minimum of $1,000 or any amount in
excess thereof that is an integral multiple of
$1,000.
Interest: General. Interest on each Note will accrue from
and including the Original Issue Date of such
Note for the first interest period and from and
including the most recent date to which interest
has been paid for all subsequent interest
periods. Each payment of interest on a Note
will include interest accrued to but excluding
the Interest Payment Date; provided that in the
case of Floating Rate Notes which reset daily or
weekly, interest payment will include interest
accrued to and including the Regular Record Date
immediately preceding the Interest Payment Date,
except
57
Exhibit B
Page 21
that at maturity or earlier repurchase or
redemption, the interest payable will include
interest accrued to, but excluding, the Maturity
Date or the date of repurchase or redemption, as
the case may be (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).
Fixed Rate Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Notes, will be made
semi-annually on March 15 and September 15 of each
year and at maturity or upon any earlier repurchase
or redemption; provided, however, that if an
Interest Payment Date for a Fixed Rate Note would
otherwise be a day that 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 from and after such Interest
Payment Date; and provided, further, that in the
case of Fixed Rate Notes issued between a Regular
Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest
Payment Date following the next succeeding Regular
Record Date.
Floating Rate Notes. Interest payments will be made
on Floating Rate Notes weekly, monthly, quarterly,
semi-annually or annually. Interest will be
payable, in the case of Floating Rate Notes with a
daily, weekly or monthly Interest Reset Date, on
the Wednesday of each week (or Tuesday in the case
of Floating Rate Book-Entry Notes as to which the
Treasury Rate is an applicable interest rate
basis), or the third Wednesday of each month,
respectively, as specified pursuant to Settlement
Procedure "A" below; in the case of Notes with a
quarterly Interest Reset Date, on the third
Wednesday of March, June, September and December of
each year; in the case of Notes with a semi-annual
Interest Reset Date, on the third Wednesday of the
two months of each year specified pursuant to
Settlement Procedure "A" below; and in the case of
Notes with an annual Interest Reset Date, on the
third Wednesday of the month of each year specified
pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest Payment Date
for Floating Rate Notes (other than the Maturity
Date, a
58
Exhibit B
Page 22
repurchase date or a redemption date) would
otherwise be a day that is not a Business Day, such
Interest Payment Date will be the next succeeding
Business Day, except that in the case of a LIBOR
Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment
Date will be the Business Day immediately preceding
such day that would have otherwise been such
Interest Payment Date; and provided, further, that
in the case of a Floating Rate Note issued between
a Regular Record Date and an Interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next succeeding
Regular Record Date.
Calculation of Interest: Fixed Rate Notes. Unless otherwise specified in
a Pricing Supplement, interest on Fixed Rate
Notes (including interest for partial periods)
will be calculated on the basis of a year of
twelve thirty-day months.
Floating Rate Notes. Interest rates on Floating
Rate Notes will be determined as set forth in
the form of such Notes. Unless otherwise
specified in a Pricing Supplement, interest on
Floating Rate Notes will be calculated on the
basis of actual days elapsed and a year of 360
days except that in the case of Treasury Rate
Notes or CMT Rate Notes, interest will be
calculated on the basis of the actual number of
days in the year.
Payments of Principal and The Trustee will pay the principal amount and
Interest: premium, if any, of each Note at maturity or
upon repurchase or redemption or upon presentation
and surrender of such Note to the Trustee. Such
payment, together with payment of interest due at
maturity of such Note, will be made in funds
available for immediate use by the Trustee and in
turn by the holder of such Note by check or, at the
option of the holder, by wire transfer of
immediately available funds if appropriate wire
transfer instructions have been received by the
Trustee not later than the 10 calendar days prior
to the Maturity Date or redemption date. Notes
presented to the Trustee at maturity or upon
repurchase or redemption for payment will be
canceled by the Trustee and delivered to the
Company with a certificate of cancellation. All
interest payments in U.S. dollars on a Note (other
than interest due at maturity or upon repurchase or
redemption) will be made by
59
Exhibit B
Page 23
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 (or the equivalent thereof in another
currency or composite currency) $10,000,000 or more
of Notes having the identical terms and provisions
will be entitled to receive payment by wire
transfer of immediately available funds if
appropriate wire transfer instructions have been
received by the Trustee not later than the Regular
Record Date applicable to such Interest Payment
Date. Interest payments on Notes in a Specified
Currency other than U.S. dollars will be made by
check or, at the option of the holder of the Note,
by wire transfer of immediately available funds if
appropriate wire transfer instructions have been
received by the Trustee not later than the Regular
Record Date applicable to such Interest Payment
Date. 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 Note and in total
for all Notes. Interest at maturity 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 be paid
on Notes maturing in the next month. The Trustee
will be responsible for withholding taxes on
interest paid on Notes as required by applicable
law.
If any Interest Payment Date or the Maturity Date
or redemption date of a Fixed Rate 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 such payment for the
period from and after such Interest Payment Date,
Maturity Date or redemption date, as the case may
be. If any Interest Payment Date, other than the
Maturity Date, a repurchase date or redemption
date, for any Floating Rate Note would fall on a
day that is not a Business Day, such Interest
Payment Date will be the following day that is a
Business Day with respect to such Note, and
interest shall accrue to, but not including, such
next succeeding Business Day except that, in the
case of a LIBOR Note, if such Business Day is in
the next succeeding calendar month, such Interest
Payment Date shall be the Business Day immediately
preceding the day that would otherwise have
60
Exhibit B
Page 24
been such Interest Payment Date with respect to
such LIBOR Note. If the Maturity Date or redemption
date for any Floating Rate Note falls on a day that
is not a Business Day, payment of principal,
premium, if any, and interest with respect to such
Floating Rate Note shall be made on the next
succeeding Business Day with the same force and
effect as if made on the due date, and no interest
shall accrue to such next succeeding Business Day.
Acceptance and Rejection of Unless otherwise instructed by the Company, the
Orders: Agent 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 and Delivery of If any order to purchase a Note is accepted by
Pricing Supplement: or on behalf of the Company, the Company will
prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will file such Pricing Supplement with the
Commission, in accordance with the applicable
paragraph of Rule 424(b) under the Act, and will
deliver the number of copies of such Pricing
Supplement to the Agent which solicited such offer
to purchase as such Agent shall request by the
close of business on the following Business Day.
Such Agent will cause such Pricing Supplement to be
delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, such Agent will affix the Pricing
Supplement to a Prospectus prior to its use.
Outdated Pricing Supplements will be destroyed.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement: warranties and covenants contained in the
Distribution Agreement, the Company may instruct
the Agent to suspend, at any time for any period of
time or permanently, the solicitation of orders to
purchase Certificated Notes. Upon receipt of such
61
Exhibit B
Page 25
instructions, the Agent will forthwith suspend
solicitation 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 the Trustee 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
Settlement, 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 Prospectus: A copy of the Prospectus and a Pricing
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. The Agent will deliver a Prospectus
and Pricing Supplement as herein described with
respect to 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
Note delivered to the Agent which solicited such
offer to purchase and such Agent's delivery of
such Note against receipt of immediately
available funds shall constitute "settlement"
with respect to such Note. All orders accepted
by the Company will be settled on or before the
third Business Day next succeeding the date of
acceptance pursuant to the timetable for
settlement set forth below, unless the Company,
the Trustee
62
Exhibit B
Page 26
and the purchaser agree to settlement on another
date.
Settlement Procedures: Settlement Procedures with regard to each Note
sold by the Company to or through an Agent
(except pursuant to a Terms Agreement) shall be
as follows:
A. The Agent which solicited such offer to
purchase will advise the Company by
telephone of the following settlement
information:
1. Name in which such Note is to be
registered ("Registered Owner").
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 amount.
5. Maturity Date.
6. In the case of a Fixed Rate Note,
the Interest Rate, or, in the case
of a Floating Rate Note, the Initial
Interest Rate (if known at such
time), Calculation Agent, Base Rate,
Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread
or Spread Multiplier (if any),
Minimum Interest Rate (if any),
Maximum Interest Rate (if any),
redemption, repayment and extension
provisions (if any).
7. The Interest Payment Date(s) and
Interest Payment Period.
8. Redemption or repurchase provisions,
if any.
9. Original issuance date.
63
Exhibit B
Page 27
10. Initial Offering price.
11. Agent's commission, if any,
determined as provided in the
Distribution Agreement between
the Company and such Agent.
12. Denominations.
13. If applicable, wire transfer
instructions, including name of
banking institution where transfer
is to be made and account number.
14. Specified currency.
15. Settlement Date.
16. Whether such Certificated Note is an
OID Note and, if so, the total
amount of OID, the yield to maturity
and the initial accrual period OID.
17. Any other applicable terms.
B. The Company will advise the Trustee
by telephone or electronic transmission
(confirmed in writing at any time on
the sale date) of the information set
forth in Settlement Procedure "A"
above.
C. The Company will have delivered to the
Trustee a pre-printed four-ply packet
for such Note, which packet will
contain the following documents in
forms that have been approved by the
Company, such Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Agent.
3. Stub Two - For such Trustee.
4. Stub Three - For the Company.
64
Exhibit B
Page 28
D. The Trustee will complete such Note
and authenticate such Note and
deliver it (with the confirmation)
and Stubs One and Two to such Agent,
and such Agent will acknowledge
receipt of the Note by stamping or
otherwise marking Stub Two 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 such Agent for payment to
the account of the Company at Chase
Manhattan Bank located in New York,
New York, Account No. ▇▇▇▇-▇▇▇-▇▇▇
(or at such other account at such
other bank in the United States as
the Company may, from time to time,
notify the Agents), in funds
available for immediate use, of an
amount equal to the price of such
Note less such Agent's commission,
if any. In the event that the
instructions given by such Agent for
payment to the account of the
Company are revoked, the Company
will as promptly as possible wire
transfer to the account of such
Agent an amount of immediately
available funds equal to the amount
of such payment made.
E. Unless such Agent purchased such
Note as principal, such Agent will
deliver such Note (with
confirmation) to the customer
against payment in immediately
available funds. Such Agent will
obtain the acknowledgment of receipt
of such Note by retaining Stub One.
F. The trustee will send Stub Three to the
Company by first-class mail.
Periodically, the Trustee will also
send to the Company a statement setting
forth the principal amount of the Notes
Outstanding as of that date under the
Indenture.
Settlement Procedures For sales by the Company of Notes to or through
Timetable: an Agent (except pursuant to a Terms Agreement),
Settlement Procedures "A" through "F" set forth
above shall be
65
Exhibit B
Page 29
completed on or before the respective times (New
York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the second Business Day
before settlement date
B 3:00 P.M. on the second Business Day
before settlement date
C-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's Company Notice to Trustee regarding Exercise of
Exercise of Optional Reset Optional Reset. Not less than 45 or more than
or Extension of Maturity: 60 days before an Optional Reset 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 Stated
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 such
Certificated Note, and will further indicate (i)
the new Stated Maturity; (ii) the
66
Exhibit B
Page 30
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, 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.
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Exhibit B
Page 31
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 a 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's Company Notice to Trustee regarding Exercise of
Exercise of Optional Optional Redemption. At least 45 days prior to the
Redemption: date on which it intends to redeem a Certificated
Note, the 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 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 Trustee notice to Company of Option to be Repaid.
and Interest Upon Exercise Upon receipt of notice of exercise of the option
of for repayment and
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Exhibit B
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Optional Repayment (Except The Certificated Notes to be repaid as
Pursuant to Company's set forth in such Notes, the Trustee for
Exercise of Optional Reset or such Certificated Notes shall (unless such
Optional Extension): 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
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 or
make payment for any Note, the Agent which
solicited the offer to purchase such Note will
notify the Company and the Trustee by
telephone and return such Note to the Trustee.
Upon receipt of such notice, the Company will
immediately wire transfer to the account of
such 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 such Agent in the performance of its
obligations hereunder and under the
Distribution Agreement with the Company, then
the Company will reimburse the Agent or the
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 Note in respect of which such
failure occurred, the Trustee will mark such
Note "canceled", make appropriate entries in
the Trustee's records and send such Note to
the Company.
Risk of Funds by Trustee: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payments to the Company,
the Agents or any purchaser, it being
understood by all parties that payments made
by the Trustee to the Company or the Agents or
any purchaser shall be made only to the extent
that funds are provided to the Trustee for
such purpose.