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Exhibit 1
▇▇▇▇▇▇ CORPORATION
U.S.$ 150,000,000
-----------
Medium-Term Notes
Due more than 9 Months from Date of Issue
DISTRIBUTION AGREEMENT
October 23, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
▇▇▇▇▇▇ Corporation, a Delaware corporation (the "Company"), confirms its
agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc ("Salomon") (each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ an "Agent" and
collectively, the "Agents") with respect to the issue and sale from time to time
by the Company of up to U.S.$ 150,000,000 aggregate initial public offering
price of its medium-term notes due more than 9 months from date of issue (the
"Notes"). The Notes will be issued under an Indenture, dated as of May 1, 1996
(the "Indenture"), between the Company and Chemical Bank (now known as The Chase
Manhattan Bank), as Trustee (the "Trustee"), and will have the maturities,
interest rates, redemption provisions, if any, and other terms as set forth in
supplements to the Basic Prospectus referred to below.
The Company hereby appoints the Agents as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Notes from the Company by
others and, on the basis of the representations and warranties herein contained,
but subject to terms and conditions herein set forth, each of the Agents agrees
to use reasonable efforts to solicit and receive 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. In addition, such Agent may also purchase Notes
as
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principal 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) hereof. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
such Agent as principal), such Agent is acting solely as agent of the Company
and does not assume any obligation towards or relationship of agency or trust
with any purchaser of Notes. Notwithstanding anything herein to the contrary,
the Company reserves the right to offer and sell the Notes directly to investors
on its own behalf in those jurisdictions where it is permitted to do so.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes, which has been declared effective. Such registration statement, including
the exhibits thereto, as amended at the Commencement Date (as hereinafter
defined), is hereinafter referred to as the "Registration Statement". The
Company proposes to file with the Commission from time to time, pursuant to Rule
424 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")
specifically relating to Notes, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement" and "amendment" or "amend" as used
in this Agreement shall include all documents that are deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Agents as of the Commencement Date, as of each date
on which the Company accepts an offer to purchase Notes (including any purchase
by an Agent as principal, pursuant to a Terms Agreement or otherwise), as of
each date the Company issues and sells Notes and as of each date the
Registration Statement or the Basic Prospectus is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Basic
Prospectus and
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the Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document incorporated by reference in the Prospectus complied
or will comply when filed with the Commission in all material respects with the
Exchange Act and the rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 1(b) do
not apply (i) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to the Agents furnished to the
Company in writing by the Agents expressly for use therein or (ii) to that part
of the Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each significant subsidiary as defined in Rule 405 of Regulation C of
the Commission of the Company (a "Significant Subsidiary") has been duly
incorporated, is validly existing as a
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corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Terms Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, in each case enforceable against the Company in
accordance with its terms except as (i) rights to indemnity and contribution
hereunder or thereunder may be limited under applicable law, (ii) the
enforceability hereof and thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (iii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(f) The Indenture has been duly qualified under the Trust Indenture Act and
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 (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(h) The execution and delivery by the Company of, and the performance by
the Company of its obligations under this Agreement, the Notes, the Indenture
and any applicable Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
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subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, 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, the Notes, the Indenture and
any applicable Terms Agreement, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Notes.
(i) There has not been any material adverse change, or any development
known to the officers of the Company which the Company presently and reasonably
believes will involve a prospective 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.
(j) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not described
or filed as required.
(k) Each of the Company and its Significant Subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. In connection with the actions of each Agent as
agent hereunder, such Agent severally agrees, as agent of the Company, to use
reasonable efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct each
Agent to suspend at any time, for any period of
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time or permanently, the solicitation of offers to purchase Notes. Upon receipt
of at least one business day's prior notice from the Company, such Agent will
forthwith suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); PROVIDED, HOWEVER, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change such Agent deems to be
immaterial), such Agent shall not 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 resulting from a solicitation made or an offer to purchase received 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%
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 less than 30 years .750%
30 years or greater To Be Negotiated
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in such Agent's
judgment should be considered by the Company. 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 considers to be unacceptable, and any such
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rejection shall not be deemed a breach of such Agent's agreements contained
herein.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement and, if requested
by such Agent, the Company will enter into a Terms Agreement that will provide
for the sale of such Notes to and the purchase thereof by such Agent. Each Terms
Agreement will be substantially in the form of Exhibit A hereto but may take the
form of an exchange of any form of written telecommunication between an Agent
and the Company.
Each Agent's commitment to purchase Notes as principal, whether pursuant to
a Terms Agreement or otherwise, 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 Settlement Date (as hereinafter defined) the
maturity date of such Notes, the price to be paid to the Company for such Notes,
the interest rate and interest rate formula, if any, applicable to such Notes
and any other terms of such Notes. Each such agreement shall also specify any
requirements for officers' certificates, opinions of counsel and letters from
the independent public accountants of the Company pursuant to Section 4 hereof.
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by an Agent.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. With respect to each sale of Notes to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural details
relating to the issue and delivery of such Notes and the payment therefor shall
be as set forth in the Administrative Procedures (as hereinafter defined). Each
date of delivery of and payment for Notes to be purchased by an Agent as
principal, whether pursuant to a Terms Agreement or otherwise, is referred to
herein as a "Settlement Date".
(c) ADMINISTRATIVE PROCEDURES. Each Agent and the Company agree to perform
the respective duties and obligations specifically provided to be performed in
the Medium-Term Notes Administrative Procedures (attached hereto as Exhibit B)
(the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and each Agent.
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(d) DELIVERY. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to the Agents' obligation to begin soliciting
offers to purchase Notes as agents of the Company shall be delivered at the
office of Brown & Wood LLP, counsel for the Agents, not later than 10:00 a.m.,
New York City time, on the date hereof, or at such other time and/or place as
the Agents and the Company may agree upon in writing, but in no event later than
the day prior to the date on which the Agents begin soliciting offers to
purchase Notes or the first date on which the Company accepts any offer by an
Agent to purchase Notes as principal (the "Commencement Date").
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to each Agent a copy thereof for
such Agent's review and, unless the Company is advised by counsel that it is
necessary to do so, will not file any such proposed supplement or amendment to
which any Agent reasonably objects; PROVIDED, HOWEVER, that the foregoing
requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, copies of which filings the Company will cause to be delivered
to each Agent promptly after being mailed for filing with the Commission.
Subject to the foregoing sentence, the Company will promptly cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) or (c). The Company will promptly
advise each Agent (i) of the filing of any amendment or supplement to the Basic
Prospectus, (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any amendment
to the Registration Statement or any additional information, (iv) of 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) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, the Agents shall not be
obligated to solicit offers to purchase Notes so long as they are not reasonably
satisfied
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with such document; provided that the Agents have identified the specific
concerns reasonably creating such concern and the Company has failed to make a
reasonable response to such concerns.
(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 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 the reasonable opinion of any Agent or in the opinion
of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law, the
Company will immediately notify each Agent by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Notes and, if so notified
by the Company, each Agent shall forthwith suspend such solicitation and cease
using the Prospectus as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus as then
amended or supplemented, it shall so advise each 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 each Agent in such quantities as such
Agent may reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to the Agents pursuant to paragraph
(f) below and Section 5(a), 5(b) and 5(c) in connection with the preparation and
filing of such amendment or supplement are reasonably satisfactory in all
material respects to such Agents, upon filing of such amendment or supplement
with the Commission or upon the effectiveness of an amendment to the
Registration Statement, such Agents 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 an 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
in all material respects 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
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and letters furnished to such Agent pursuant to paragraph (f) below and Sections
5(a), 5(b) and 5(c) in connection with the preparation and filing of such
amendment or supplement are reasonably satisfactory in all material respects to
such Agent, upon the filing of such amendment or supplement with the Commission
or upon the 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 each Agent as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, two signed
copies of the Registration Statement, including exhibits and all amendments
thereto, and during the period mentioned in Section 3(b) above, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as each Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualifications for as long as the Agents
shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to each
Agent such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as such Agent may from time to time
reasonably request and shall notify each Agent promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of a possible change that does not indicate the direction of the
possible change, in
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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.
(g) 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
or Legal Investment Memoranda, (v) the printing and delivery to the Agents 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 printing and delivery to the Agents of copies of the Indenture
and any Blue Sky or Legal Investment 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., (ix) the reasonable fees and disbursements of counsel for the
Agents incurred in connection with the offering and sale of the Notes, including
any opinions to be rendered by such counsel hereunder, and (x) any reasonable
out-of-pocket expenses incurred by the Agents, including any advertising
expenses incurred by the Agents with the approval of the Company.
(h) Between the date of any agreement by an Agent to purchase Notes as
principal and the Settlement Date with respect to such agreement, the Company
will not, without such Agent's prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Notes (other than (i) the Notes that are to be sold pursuant to such
agreement and (ii) commercial paper issued in the ordinary course of business),
except as may otherwise be provided in such agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's obligation to
solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to purchase Notes will be
subject to the accuracy in all material respects of the
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representations and warranties on the part of the Company herein, to the
accuracy in all material respects of the statements of the Company's officers
made in each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company in all material respects of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of any Agent's obligation to solicit offers to purchase
Notes, at the time of such solicitation, and, in the case of any Agent's or any
other purchaser's obligation to purchase Notes, at the time the Company accepts
the offer to purchase such Notes and at the time of purchase) and (in each case)
to the following additional conditions precedent:
(a) At the time of such solicitation or the time of such purchase, as the
case may be:
(i) There shall not have occurred any change, or any development
involving a prospective 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 Registration
Statement that, in the judgment of any Agent, is material and adverse and
that makes it, in the judgment of any Agent, impracticable to market the
Notes on the terms and in the manner contemplated in the Prospectus except,
in the case of any purchase of Notes, as disclosed to the Agents in writing
by the Company before the Company accepted the offer to purchase such
Notes.
(ii) There shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, the New York
Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (B) suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market, (C) declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment
of any Agent, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together
with any other such event, makes it, in the judgment of any Agent,
impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as amended or supplemented, except, in the
case of any purchase of Notes, for any such event occurring before the
Company accepted the offer to purchase such Notes.
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(iii) There shall not have been any downgrading, nor any notice given of
any intended or potential downgrading or of a possible change that does not
indicate the direction of the 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, except, in the case of any purchase of
Notes, as disclosed to the Agents in writing by the Company before the
Company accepted the offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any agreement by an
Agent to purchase Notes as principal, on the corresponding Settlement Date, each
Agent shall have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
independent counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus,
as amended or supplemented, and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(B) each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, as amended or supplemented,
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
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(C) each of the Company and its Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as
amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, in each case enforceable
against the Company in accordance with its terms except as (i) rights
to indemnity and contribution hereunder or thereunder may be limited
under applicable law, (ii) the enforceability hereof and thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (iii) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(E) the Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and
duly paid for by the purchasers thereof, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of
general applicability;
(F) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Terms Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument known to such counsel and binding upon the Company or any
of its subsidiaries that is material to the Company and its
subsidiaries,
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taken as a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, 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, the Notes, the
Indenture and any applicable Terms Agreement, except such as are
specified and have been obtained and such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Notes;
(G) the statements in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities" and "Plan of
Distribution", and in "Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by reference in
the Prospectus and Item I of Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since the most recent annual
report on Form 10-K incorporated by reference in the Prospectus, in
each case insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(H) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be
described in the Registration Statement or the Prospectus, as amended
or supplemented, and is not so described or of any statute,
regulation, contract or other document that is required to be
described in the Registration Statement or the Prospectus, as amended
or supplemented, or to be filed as an exhibit to such Registration
Statement that is not described or filed as required;
(I) the statements in the Prospectus, as amended or supplemented,
under the caption "Taxation" fairly summarize the matters referred to
therein as of the date of such Opinion;
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(J) such counsel (1) is of the opinion that each document
incorporated by reference in the Prospectus, as amended or
supplemented (except for financial statements and schedules and other
financial or statistical data included or incorporated included
therein as to which such counsel need not express any opinion),
complied as to form when filed with the Commission in all material
respects with the Exchange Act and the rules and regulations of the
Commission thereunder, (2) is of the opinion that the Registration
Statement and the Prospectus, as amended or supplemented, (except for
financial statements and schedules and other financial or statistical
data included or incorporated 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 of the
Commission thereunder and (3) believes that (except for financial
statements and schedules and other financial or statistical data
included or incorporated therein as to which such counsel need not
express any belief) the Prospectus, as amended or supplemented, if
applicable, as of the date such opinion is delivered does not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(K) the Indenture has been duly qualified under the Trust
Indenture Act and 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
that (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally, and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and
(L) the Registration Statement is effective under the Securities
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act or proceedings therefor initiated or
threatened by the Commission.
(ii) The opinion, dated as of such date, of Brown & Wood LLP, special
counsel for the Agents, covering the matters in subparagraphs (D), (E), (G)
(with respect to statements in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities" and "Plan of
Distribution"), (J)(2), (K) and (L).
With respect to subparagraphs (A), (B), (C), (F), (G) (with respect to
descriptions of Legal Proceedings), and (H), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may state that
their opinion is based solely upon the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, General
Counsel of the Company, which opinion shall be addressed to both ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP and the Agents. With respect to subparagraph (J) of paragraph (b)(i)
above, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may state that their opinion and belief are based
upon their participation in the preparation of the Prospectus and any amendments
or supplements thereto, not including documents incorporated therein by
reference, and their review of the documents incorporated therein by reference,
but are without independent check or verification except as specified.
(c) On the Commencement Date and, if called for by any agreement by an
Agent to purchase Notes as principal, on the
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corresponding Settlement Date, each Agent shall have received a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and the Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement by an
Agent to purchase Notes as principal, on the corresponding Settlement Date, the
Company's independent public accountants shall have furnished to each Agent a
letter or letters, dated as of the Commencement Date or such Settlement Date, as
the case may be, in form and substance reasonably 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 Prospectus, as amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company shall
have furnished to each Agent such appropriate further information, certificates
and documents as such Agent may reasonably request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. (a) 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, amortization schedules or maturities offered on or other terms of
the Notes or for a change an Agent deems to be immaterial), the Company will
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(c) relating to the
Registration Statement or the Prospectus as amended and supplemented to the time
of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a),
the Company shall furnish or cause to be furnished forthwith to each Agent a
written opinion of independent counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall be
in a form reasonably satisfactory to each Agent and
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shall be of the same tenor as the opinion referred to in Section 4(b)(i), but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion. In lieu of such
opinion, counsel last furnishing such an opinion to an Agent may furnish to such
Agent a letter to the effect that such Agent may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter.)
(c) 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 information is incorporated by reference in the
Registration Statement or the Prospectus, if so requested by an Agent, the
Company shall cause its independent public accountants 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(d), 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.
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 or
liabilities caused by any untrue statement or allegedly untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof or the Prospectus (as amended 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, except insofar as such
losses, claims, damages or liabilities are caused by (i) any such untrue
statement or omission or allegedly untrue statement or omission based upon
information relating to such Agent furnished to the Company in writing by such
Agent expressly for use therein or (ii) the failure of such Agent to have
delivered a copy of the Prospectus, as most recently supplemented or amended, as
the case may be (excluding documents incorporated therein by reference) at or
prior to the confirmation of the sale of Notes, provided that such Prospectus
has been supplied by the Company to such Agent in advance of the time needed by
such Agent to accomplish such delivery.
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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 each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to the Agents, but
only with reference to (i) information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto or (ii) the failure
of such Agent to have delivered a copy of the Prospectus, as most recently
supplemented or amended, as the case may be (excluding documents incorporated
therein by reference) at or prior to the confirmation of the sale of Notes,
provided that such Prospectus has been supplied by the Company to such Agent in
advance of the time needed by the Agent to accomplish such delivery.
(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 paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceedings and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. 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 fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ if both Agents are
indemnified pursuant to paragraph (a) above. In the case that the Agent other
than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is the indemnified party pursuant to paragraph (a) above,
such firm shall be designated in writing by such Agent. In the case of parties
indemnified pursuant to
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paragraph (b) above, such firm shall be designated in writing by the Company.
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
there be a final judgment 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. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of this
Section 6 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein in connection
with any offering of Notes, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, 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 and each Agent
participating in the offering of the Notes that gave rise to such losses,
claims, damages or liabilities (a "Relevant Agent") from the offering of such
Notes or (ii) if the allocation provided by clause (i) 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 and each Relevant Agent in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and each Relevant Agent in connection with the offering of such
Notes shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company bear to the total
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discounts and commissions received by each Relevant Agent in respect thereof.
The relative fault of the Company and of each Relevant Agent shall be determined
by reference to, among other things, whether the untrue or allegedly 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 by such Relevant
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. If more than one
Agent is a Relevant Agent in respect to a proceeding, each Relevant Agent's
obligation to contribute pursuant to this Section 6 shall be several, in the
proportion that the principal amount of the Notes that are the subject of such
proceeding and that were offered and sold through such Relevant Agent bears to
the aggregate principal amount of the Notes that are the subject of such
proceeding, and not joint.
(e) The Company and each Agent agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by PRO RATA
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, the Agents shall not be required to contribute any amount in excess
of the amount by which the total price at which the Notes referred to in
paragraph (d) above that were offered and sold to the public through the Agents
exceeds the amount of any damages that the Agents have otherwise been required
to pay by reason of such untrue or allegedly 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 remedies provided for in this Section 6 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.
7. POSITION OF THE AGENTS. In soliciting offers to purchase the Notes, each
Agent is acting solely as an agent for the Company, and not as a principal, and
does not assume any obligation towards or relationship of agency or trust with
any purchaser of Notes. Each Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase Notes
has been solicited by such Agent and accepted by the Company, but such Agent
shall not have any
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liability to the Company in the event any such purchase is not consummated for
any reason other than the gross negligence of such Agent. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold such Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission such Agent would have received had
such sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time either by the
Company or by an Agent upon the giving of written notice of such termination to
the other party hereto. Any Terms Agreement shall be subject to termination in
the absolute discretion of the Agent party thereto on the terms set forth or
incorporated by reference therein. The termination of this Agreement shall not
require termination of any agreement by an 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 two sentences of Section 3(b) and Sections
3(c), 3(g), 6, 7, 9 and 13 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), 3(a), 3(b), 3(e), 3(f), 3(h) and 4 shall also
survive. If any Terms Agreement is terminated, the provisions of Sections 2(c),
3, 4, 6, 9 and 13 (which shall have been incorporated by reference in such Terms
Agreement) shall survive.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective indemnity and
contribution agreements, representations, warranties and other statements of the
Company, its officers and the Agents set forth in or made pursuant to this
Agreement or any agreement by the Agents to purchase Notes as principal will
remain in full force and effect, regardless of any termination of this Agreement
or any such agreement, any investigation made by or on behalf of the Agents 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.
10. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, will be mailed, delivered or
telefaxed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Manager, Credit Department, with a copy to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Managing Director, Short and Medium-Term
Finance Department or, if sent to Salomon, will be mailed, delivered or
telefaxed and confirmed to it at Seven World Trade Center, New York, New York
10048 Attention:
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Medium-Term Note Department or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to it at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
11. 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 the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. 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.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14. 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.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and each of you.
Very truly yours,
▇▇▇▇▇▇ CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President - Treasurer
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Principal
SALOMON BROTHERS INC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
▇▇▇▇▇▇ CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
, 19
------------ --
▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Distribution Agreement dated ______, 1996 (the
"Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase the following principal
amount of your Medium-Term Notes: $
Fixed Rate Floating Rate
All Notes: Notes: Notes:
---------- ------ ------
Series:
Purchase price: Interest rate: Interest rate
basis:
Original issue date: Index maturity:
Price to public: Spread:
Settlement date and Spread
time: multiplier:
Place of delivery: Initial interest
rate:
Stated maturity date: Initial interest
reset date:
Initial redemption Interest reset
date: dates:
Initial redemption Interest payment
percentage: dates:
A-1
26
Annual redemption Maximum interest
percentage reduction: rate:
Holder's optional Minimum interest
repayment date(s): rate:
Total amount of OID: Interest reset
period:
Original yield to Calculation
maturity: agent:
Applicability of
modified payment upon
acceleration:
If yes, state issue
price:
Initial accrual period
OID:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 8 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 following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
--------------------
[NAME OF AGENT]
By:
-----------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ CORPORATION
By:
-------------------------
Name:
Title:
A-2
27
Exhibit B
▇▇▇▇▇▇ CORPORATION
MEDIUM-TERM NOTES, ADMINISTRATIVE PROCEDURES
-------------------------
Explained below are the administrative procedures and specific terms of the
offering of Medium-Term Notes (the "Notes") on a continuous basis by ▇▇▇▇▇▇
Corporation (the "Company") pursuant to the Distribution Agreement, dated as of
October 23, 1996 (the "Distribution Agreement") among the Company, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Salomon Brothers Inc (each an "Agent" and
collectively, the "Agents"). In the Distribution Agreement, each Agent has
agreed to use reasonable efforts to solicit purchases of the Notes. Each Agent,
as principal, may purchase Notes for its own account and if requested by such
Agent, the Company and such Agent will enter into a terms agreement, as
contemplated by the Distribution Agreement.
The Notes will be issued pursuant to the provisions of an indenture dated
as of May 1, 1996 (as it may be supplemented or amended from time to time, the
"Indenture"), between the Company and Chemical Bank (now known as The Chase
Manhattan Bank ("Chase")), as trustee (in such capacity, the "Trustee"). Trustee
will be the Registrar, Authenticating Agent and Paying Agent for the Notes and
will perform the duties specified herein. Chase will be the Calculation Agent
for the Notes. Notes will bear interest at a fixed rate (the "Fixed Rate
Notes"), which may be zero in the case of certain original issue discount notes
(the "OID Notes"), or at floating rates (the "Floating Rate Notes"). Each Note
will be represented by either a Global Security (as defined below) delivered to
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
B-1
28
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, terms
defined in the Indenture or the Notes 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, 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 Trustee to DTC, dated as of the date hereof (the "Letter of
Representation"), and a Medium Term Note Certificate Agreement between Trustee
and DTC, dated as of December 2, 1988, and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$200,000,000 principal amount of all such Notes that have
the same Maturity Date, redemption provisions, ranking,
Interest Payment Dates, Interest Period, Original Issue
Date, original issue discount provisions (if any) and, in
the case of Fixed Rate Notes, Interest Rate and amortization
schedule (if any) or, in the case of Floating Rate Notes,
Initial Interest Rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any) and, in each case, any other
relevant terms (collectively "Terms"). Each Global Security
will be dated and issued as of the date of its
authentication by Trustee. Each Global Security will bear an
"Interest Accrual Date," which will be (i) with respect to
an original Global Security (or any portion thereof), its
original issuance date and (ii) with respect to any Global
Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed,
lost or stolen Global
B-2
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Security, the most recent Interest Payment Date to which
interest has been paid or duly provided for on the
predecessor Global Security or Securities (or if no such
payment or provisions has been made, the original issuance
date of the predecessor Global Security), regardless of the
date of authentication of such subsequently issued Global
Security. Book-Entry Notes may only be denominated and
payable in U.S. dollars. No Global Security will represent
any Certificated Note.
Identification The Company has arranged with the CUSIP Service Bureau of
Numbers: Standard & Poor's Ratings Group (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP numbers for the
Notes which series consists of approximately 900 CUSIP
numbers which have been reserved for and relate to Global
Securities representing the Book-Entry Notes. The Company
has obtained from the CUSIP Service Bureau a written list of
the reserved CUSIP numbers and has delivered to Trustee and
DTC the written list of 900 CUSIP numbers of such series.
Trustee 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 Trustee has assigned to Global Securities. At
any time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, Trustee shall so
advise the Company and, if it deems necessary, the Company
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 Trustee
and DTC. Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000 and otherwise required to
be represented by the same Global Note will instead be
represented by two or more Global Notes which shall all be
assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Security will
be registered in the
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name of Cede & Co., as nominee for DTC, on the Security
Register maintained under the relevant 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: 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 Note, 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 Trustee) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, Trustee will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and
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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, Trustee will exchange such Global Securities for a
single Global Security bearing the new CUSIP number and a
new Interest Accrual Date, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $200,000,000 in aggregate
principal amount, one Global Security will be authenticated
and issued to represent each $200,000,000 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).
Maturities: Each Book-Entry Note will mature on a date more than nine
months from the settlement date for such Note.
Notice of Trustee will give notice to DTC prior to each Redemption
Redemption Date (as specified in the Note), if any, at the time and in
Dates: the manner set forth in the Letter of Representations.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 and integral multiples of $1,000 in excess thereof.
Global Securities will be denominated in principal amounts
not in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each $200,000,000
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.
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Interest: GENERAL. Interest on each Book-Entry Note will accrue from
the Interest Accrual Date of the Global Security
representing such Note. Each payment of interest on a
Book-Entry Note will include interest accrued to but
excluding the Interest Payment Date; provided that in the
case of Floating Rate Notes that reset daily or weekly,
interest payments will include interest accrued to and
including the Record Date immediately preceding the Interest
Payment Date, except that at maturity or earlier redemption,
the interest payable will include interest accrued to, but
excluding, the maturity date or the date of redemption, as
the case may be. Interest payable at the maturity or upon
redemption of a Book-Entry Note will be payable to the
person to whom the principal of such Note is payable.
Standard & Poor's Ratings Group 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 Ratings
Group.
RECORD DATES. Unless otherwise specified in the applicable
Pricing Supplement, the 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, the interest payments on
Fixed Rate Book-Entry Notes will be made semiannually on
April 1 and October 1 of each year and at maturity;
PROVIDED, HOWEVER, that in the case of a Fixed Rate
Book-Entry Note issued between a Record Date and an Interest
Payment Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will be
made on Floating Rate Book-Entry Notes monthly, quarterly,
semi-annually
B-6
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or annually. Unless otherwise specified in the applicable
Pricing Supplement, interest will be payable, in the case of
Floating Rate Book-Entry Notes with a daily, weekly or
monthly Interest Reset Date, on the third Wednesday of each
month or on the third Wednesday of March, June, September
and December, as specified pursuant to Settlement procedure
"A" below; and 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 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
specified pursuant to Settlement Procedure "A" below;
PROVIDED, HOWEVER, that if an Interest Payment Date for
Floating Rate Book-Entry Notes 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 immediately preceding
Business Day; and PROVIDED, FURTHER, that in the case of a
Floating Rate Book-Entry Note issued between a Record Date
and an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next
succeeding Record Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. On the first
Business Day of January, April, July and October of each
year, Trustee will deliver to the Company and DTC a written
list of Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the six-month
period beginning on such first Business Day.
Calculation of FIXED RATE BOOK-ENTRY NOTES. Unless otherwise specified in
Interest: the applicable Pricing Supplement, interest on Fixed Rate
Book-Entry Notes (including interest for partial
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periods) will be calculated on the basis of a year of twelve
thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Unless otherwise specified
in the applicable Pricing Supplement, interest rates on
Floating Rate Book-Entry Notes will be determined as set
forth in the form of Notes. 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, interest will be calculated on the
basis of the actual number of days in the year.
Payments of PAYMENTS OF INTEREST. Promptly after each Record Date,
Principal and Trustee will deliver to the Company and DTC a written notice
Interest: 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) 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 Ratings Group. The Company
will pay to Trustee, as paying agent, the total amount of
Interest due on such Interest Payment Date (other than at
maturity), and Trustee will pay such amount to DTC at the
times and in the manner set forth below under "Manner of
Payment". If any Interest Payment Date for a 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.
PAYMENTS AT MATURITY OR UPON REDEMPTION. On or about the
first Business Day of each month, 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
B-8
35
about the fifth Business Day preceding the Maturity Date or
redemption date of such Global Security. The Company will
pay to Trustee, as the paying agent, the principal amount of
such Global Security, together with interest due at such
Maturity Date or redemption date. Trustee will pay such
amounts to DTC at the times and in the manner set forth
below under "Manner of Payment". If any Maturity Date or
redemption date of a Global Security representing Book-Entry
Notes is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and, in
the case of Fixed Rate Notes, 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, Trustee will cancel
such Global Security in accordance with the terms of the
relevant Indenture and deliver it to the Company with a
certificate of cancellation.
MANNER OF PAYMENT. The total amount of any principal and
interest due on Global Securities on any Interest Payment
Date or at maturity or upon redemption shall be paid by the
Company to Trustee in funds available for immediate use by
Trustee as of 10:00 A.M., New York City time on such date.
The Company will make such payment on such Global Securities
by instructing Trustee to withdraw funds from an account
maintained by the Company at Trustee. The Company will
confirm such instructions in writing to Trustee. Prior to
10:30 A.M., New York City time on each Maturity Date or
redemption date or as soon as possible thereafter, 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 available for
immediate use by DTC, 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,
B-9
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interest payment shall be made to DTC in same day funds in
accordance with existing arrangements between Trustee and
DTC. Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedure 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
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.
WITHHOLDING TAXES. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments directly to the
beneficial owner of such Note.
Preparation of If any order to purchase a Book-Entry Note is accepted by or
Pricing on behalf of the Company, the Company will prepare a pricing
Supplement: supplement ("Pricing Supplement") reflecting the terms of
such Note and will arrange to 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 Agents as
the Agents shall request by the close of business on the
following Business Day. The Agents will cause such Pricing
Supplement to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry
B-10
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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 the third Business Day
pursuant to the timetable for settlement set forth below
unless the Company and the purchaser agree to settlement on
another date which shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company to or through an 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), Base Rate, Index Maturity,
Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Interest Period, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any), and the
Alternate Rate Event Spread (if
any).
4. Interest Payment Dates.
5. Redemption provisions, if any.
6. Settlement date.
7. Price.
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8. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
9. Whether the Note is an OID Note, and
if it is an OID Note, the total amount
of OID, the yield to maturity, the
initial accrual period OID and the
applicability of Modified Payment
upon Acceleration.
10. Any other applicable Terms.
B. The Company will advise 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. Trustee will then
assign a CUSIP number to the Global Security
representing such Note and will notify the Company and
the Agent of such CUSIP number by telephone as soon as
practicable. Each such instruction given by the Company
to Trustee will constitute a representation and
warranty by the Company to Trustee and the Agents that
(i) the issuance and delivery of such Global Security
has been duly and validly authorized by the Company and
(ii) that such Global Security when completed,
authenticated and delivered pursuant to the related
Indenture, will constitute the valid and legally
binding obligation of the Company.
C. Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC, Interactive
Data Corporation, the Agent and Standard & Poor's
Ratings Group:
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
B-12
39
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 Record Date as
defined in the Note) and amount of
interest payable on such initial
Interest Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
5. Participant account numbers
maintained by DTC on behalf of
Trustee and Agents.
D. Trustee will complete and authenticate the Global
Security representing such Note in accordance with the
terms of the written order of the Company then in
effect.
E. DTC will credit such Note to Trustee's participant
account at DTC.
F. Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i)
debit such Note to Trustee's participant account and
credit such Note to the Agent's participant account and
(ii) debit the Agent's settlement account and credit
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 Trustee to DTC that (a)
the Global Security representing such Book-Entry Note
has been issued and authenticated and (b) Trustee is
holding such Global Security pursuant to the
Medium-Term Note Certificate Agreement between Trustee
and DTC.
B-13
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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. Trustee will credit to the account of the Company
maintained at The Trustee Manhattan Bank, New York, New
York, in funds available for immediate use in the
amount transferred to Trustee in accordance with
Settlement Procedure "F".
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, Trustee will send to the Company a statement
setting forth the principal amount of Notes Outstanding
as of that date under the Indenture and setting forth a
brief description of any sales of which the Company has
advised Trustee but which have not yet been settled.
Settlement: For sales by the Company of Book-Entry Notes to or through
the Agent (except pursuant to a
B-14
41
Procedures Terms Agreement) for settlement on the first Business Day
Timetable: 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 No later than 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 Noon and 2:00 P.M., 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 Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12 Noon and 2:00 P.M., respectively, on the
second Business Day before the settlement date. Settlement
Procedure "H" is subject to extension in accordance with any
extension of Fedwire closing deadlines 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
cancelled, 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. on the Business Day immediately
preceding the scheduled settlement date.
B-15
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Failure to If Trustee fails to enter an SDFS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "F", 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
Trustee's participant account, provided that 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, Trustee
will mark such Global Security "cancelled", make
appropriate entries in Trustee's records and send such
cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be cancelled 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, Trustee
for two Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be cancelled
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, Trustee
will deliver the withdrawal message and take the related
action described in the preceding paragraph.
B-16
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Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, 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.
Trustee Not To Nothing herein shall be deemed to require the Trustee to
Risk Funds: risk or expend its own funds in connection with any payments
to the Company, the Agents, DTC or any Holders of Notes, it
being understood by all parties that payments made by the
Trustee to the Company, the Agents, DTC or any Holders of
Notes shall be made only to the extent that funds are
provided to the Trustee for such purpose.
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PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Trustee will serve as registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or any
portion thereof), its original issuance date (which will be
the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated Note
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at an agency in the Borough of Manhattan, the City
of New York, to be maintained by the Company for such
purpose. Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date more than nine
months from the settlement date for such Note.
Currency: The currency denomination with respect to any Certificated
Note and the payment of interest and the repayment of
principal with respect to any such Certificated Note shall
be as set forth therein and in the applicable Pricing
Settlement.
Denominations: The denomination of any Certificated Note
B-18
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will be a minimum of U.S. $1,000 and integral multiples of
U.S. $1,000 in excess thereof.
Interest: GENERAL. Interest on each Certificated Note will accrue from
the Original Issue Date of such Note for the first interest
period and from the most recent date to which interest has
been paid for all subsequent interest periods. Each payment
of interest on a Certificated Note will include interest
accrued to but including the Interest Payment Date; provided
that in the case of Floating Rate Notes which reset daily or
weekly, interest payments will include interest accrued to
and including the Record Date immediately preceding the
Interest Payment Date, except that at Maturity or earlier
redemption, the interest payable will include interest
accrued to, but excluding the Maturity Date or the date of
redemption, as the case may be.
FIXED RATE CERTIFICATED NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes will be made
semi-annually on October 1 and April 1 of each year and at
maturity; PROVIDED, HOWEVER, that in the case of
Certificated Fixed Rate Notes issued between a Record Date
and an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next
succeeding Record Date.
FLOATING RATE CERTIFICATED NOTES. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the
case of Floating Rate Certificated Notes with a daily,
weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March,
June, September and December, 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
B-19
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the third Wednesday of the two months 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 specified pursuant to Settlement Procedure "A"
below; PROVIDED, HOWEVER, that if an Interest Payment Date
for Floating Rate Certificated Notes would otherwise be a
day that is not a Business Day with respect to such Floating
Rate Certificated Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated 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
immediately preceding Business Day; and PROVIDED, FURTHER,
that in the case of a Floating Rate Certificated Note issued
between a Record Date and an Interest Payment Date, the
first interest payment will be made on the Interest Payment
Date following the next succeeding Record Date.
Calculation of FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Interest: Certificated Notes (including interest for partial periods)
will be calculated on the basis of a year of twelve
thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on Floating
Rate Certificated Notes will be determined as set forth in
the form of Notes. Interest on Floating Rate Certificated
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, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Trustee will pay the principal amount of each Certificated
Principal and Notes at maturity or upon redemption upon presentation and
Interest: surrender of such Note to Trustee. Such payment, together
with payment of interest due at maturity or upon redemption
of such Note, will be made in funds available for immediate
use by Trustee and in turn by the holder of such Note.
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Certificated Notes presented to Trustee at maturity or upon
redemption for payment will be cancelled by Trustee and
delivered to the Company with a certificate of cancellation.
All interest payments on a Certificated Note (other than
interest due at maturity or upon redemption) will be made by
check drawn on Trustee (or another person appointed by
Trustee) and mailed by Trustee to the person entitled
thereto as provided in such Note and the relevant Indenture;
PROVIDED, HOWEVER, that the holder of $10,000,000 or more of
Notes having the same Interest Payment Date will be entitled
to receive payment by wire transfer of immediately available
funds. Following each Record Date, Trustee will furnish the
Company with a list of interest payments to be made on the
following Interest Payment Date for each Certificated Note
and in total for all Certificates Notes. Interest at
maturity or upon redemption will be payable to the person to
whom the payment of principal is payable. Trustee will
provide monthly to the Company lists of principal and
interest, to the extent ascertainable, to be paid on
Certificated Notes maturing or to be redeemed in the next
month. Trustee will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any Interest Payment Date or the Maturity Date or
redemption date of a Fixed-Rate Certificated Note is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on 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 or the
Maturity Date or redemption date for any Certificated
Floating Rate Note would fall on a day that is not a
Business Day with respect to such Note, such Interest
Payment Date, Maturity Date or redemption date will be the
following day that is a Business Day with respect to such
Note, except that, in the case of a Certificated LIBOR Note,
if such Business Day is in the next succeeding
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calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day with
respect to such Certificated LIBOR Note.
Preparation of If any order to purchase a Certificated Note is accepted by
Pricing or on behalf of the Company, the Company will prepare a
Supplement: pricing supplement (a "Pricing Supplement") reflecting the
terms of such Note and will arrange to 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 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 will affix the Pricing Supplement to Prospectuses
prior to their use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds
in exchange for an authenticated Certificated Note
delivered to the Agent and the Agent's delivery of such
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 and the purchaser agree to
settlement on another date.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: sold by the Company to or through the Agent (except pursuant
to a Terms Agreement) shall be as follows:
A. The Agent will advise the Company by telephone that
such Note is a
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Certificated Note and 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
Certificated Note, the interest
rate or, in the case of a Floating
Rate Certificated Note, the Initial
Interest Rate (if known at such
time), Base Rate, Index Maturity,
Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Interest Period, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any), and the
Alternate Rate Event Spread (if
any).
7. Interest Payment Dates.
8. Redemption provisions, if any.
9. Settlement date.
10. Price.
11. Agent's commission, if any,
determined as provided in the
Distribution Agreement between the
Company and the Agent.
12. Whether the Note is an OID Note,
and if it is an OID Note, the total
amount of OID, the yield to maturity,
the initial accrual
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period OID and the applicability of
Modified Payment upon Acceleration.
13. Any other applicable Terms.
B. The Company will advise 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 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, the Agent and the
Trustee:
1. Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. Trustee will complete such Note and authenticate such
Note and deliver it (with the confirmation) and Stubs
One and Two to the Agent, and the Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to Trustee.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for payment
to the account of the Company at The Trustee Manhattan
Bank, New York, New York, in funds available for
immediate use, of an amount equal to the price of such
Note less the Agent's commission, if any. In the event
that the instructions given by the Agent for payment to
the account of the Company are revoked, the Company
will as promptly as possible wire transfer to the
account of the Agent an amount of immediately available
funds equal to the amount of such payment made.
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E. Unless the Agent purchased such Note as principal, the
Agent will deliver such Note (with confirmation) to the
customer against payment in immediately payable funds.
The Agent will obtain the acknowledgment of receipt of
such Note by retaining Stub Two.
F. Trustee will send Stub Three to the Company by
first-class mail. Periodically, Trustee will also send
to the Company a statement setting forth the principal
amount of the Notes Outstanding as of that date under
each Indenture and setting forth a brief description of
any sales of which the Company has advised Trustee but
which have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or through
Procedures the Agent (except pursuant to a Terms Agreement, Settlement
Timetable: Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on 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
Failure to If a purchaser fails to accept delivery of and make payment
Settle: for any Certificated Notes, the Agent will notify the
Company and Trustee by telephone and return such note to
Trustee. Upon receipt of such notice, the Company will
immediately wire transfer to the account of the Agent an
amount equal to the amount previously credited thereto in
respect of such Note. Such wire transfer will be made
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on the settlement date, if possible, and in any event not
later than the Business Day following the settlement date.
If the failure shall have occurred for any reason other than
a default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement with the
Company, then the Company will reimburse the Agent or
Trustee, as appropriate, on an equitable basis for its loss
of the use of the funds during the period when they were
credited to the account of the Company. Immediately upon
receipt of the Certificated Note in respect of which such
failure occurred, Trustee will mark such Note "cancelled",
make appropriate entries in Trustee's records and send such
Note to the Company.
Trustee Not To Nothing herein shall be deemed to require the Trustee to
Risk Funds: risk or expend its own funds in connection with any payments
to the Company, the Agents, DTC or any Holders of Notes, it
being understood by all parties that payments made by the
Trustee to the Company, the Agents, DTC or any Holders of
Notes shall be made only to the extent that funds are
provided to the Trustee for such purpose.
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