EXHIBIT 1.3
Ryder System, Inc.
Medium-Term Notes
Due Nine Months or More
From Date of Issue
Form of
Selling Agency Agreement
[Date]
New York, New York
[Agent]
[Address]
[Agent]
[Address]
[Agent]
[Address]
Ladies & Gentlemen:
Ryder System, Inc., a Florida corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to the aggregate principal amount set forth in Schedule I
hereto of its Medium-Term Notes, Due Nine Months or More from Date of Issue (the
"Notes"). The Notes will be issued under an indenture (the "Indenture") dated as
of [ ], between the Company and JPMorgan Chase Bank, as trustee (the "Trustee").
Unless otherwise specifically provided for and set forth in a supplement to the
Prospectus referred to below, the Notes in minimum denominations of $1,000 and
in denominations exceeding such amount by integral multiples of $1,000, will be
issued only in fully registered form and will have the maturities, annual
interest rates and, if appropriate, other terms set forth in such supplement to
the Prospectus. The Notes will be issued, and the terms thereof established, in
accordance with the Indenture and the Medium-Term Notes Administrative
Procedures attached hereto as Exhibit A (the "Procedures"). The Procedures may
only be amended by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term the "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to collectively whether at any time any of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not jointly.
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1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each of you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such Form
(File Number: [ ]), including a basic prospectus, which has become effective,
for the registration under the Act of $[ ] aggregate principal amount of debt
securities (the "Securities"), including the Notes. Such registration statement,
as amended as of the Execution Time, meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other material respects
with said Rule. The Company has included in such registration statement, or has
filed or will file with the Commission pursuant to the applicable paragraph of
Rule 424(b) under the Act, a supplement to the form of prospectus included in
such registration statement relating to the Notes and the plan of distribution
thereof (the "Prospectus Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the Prospectus
Supplement (each a "Pricing Supplement"), specifying the interest rates,
maturity dates and, if appropriate, other similar terms of the Notes sold
pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date of a
Terms Agreement and at the date of delivery by the Company of any Notes sold
hereunder (a "Closing Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable requirements
of the Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act"), as
amended and the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; (ii) the Registration Statement, as amended as of
any such time, did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will 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; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any or all of you
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder,
the Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have been
duly authorized,
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and, when issued to and paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled to the benefits of
the Indenture.
(d) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein except such as have been obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this Agreement and such
other approvals as have been obtained.
(e) Neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default under the charter
or by-laws of the Company or the terms of any indenture or other agreement or
instrument to which the Company or any of its subsidiaries is a party or bound,
or any order or regulation applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its subsidiaries,
except where such breach or conflict would not have a materially adverse effect
upon the business or operations of the Company and its subsidiaries taken as a
whole and would not materially adversely affect the offering of the Notes.
(f) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Business Day" shall mean any day other
than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close in
New York City. "Effective Date" shall mean each date that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the form of basic prospectus relating to the Securities contained in
the Registration Statement at the Effective Date. "Prospectus" shall mean the
Basic Prospectus as supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such rules
under the Act. Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
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2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS OF OFFERS
TO PURCHASE; SALES OF NOTES TO A PURCHASER. (a)Subject to the terms and
conditions set forth herein, the Company hereby authorizes each of the Agents to
act as its agent to solicit offers for the purchase of all or part of the Notes
from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents agrees,
as agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Notes from the Company upon the terms and conditions set forth in
the Prospectus (and any supplement thereto) and in the Procedures. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such Agent
and accepted by the Company, but such Agent shall not, except as otherwise
provided in this Agreement, have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that any Agent may
purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation of
offers to purchase Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage specified
in Schedule I hereto of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. The Company may from time to time offer Notes for sale otherwise than
through an Agent and the Company may solicit or accept offers to purchase Notes
through any agent other than an Agent.
(b) Subject to the terms and conditions set forth herein,
whenever the Company and any of you determines that the Company shall sell Notes
directly to any of you as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and, a supplemental agreement
relating to such sale. Each such supplemental agreement (which may be either an
oral agreement confirmed in writing or a written agreement) is herein referred
to as a "Terms Agreement". Each Terms Agreement shall describe the Notes to be
purchased by the Purchaser pursuant thereto and shall specify the principal
amount of each such Note, the aggregate principal amount of all such Notes, the
maturity date of such Notes, the rate at which interest will be paid on such
Notes, the dates on which interest will be paid on such Notes and the record
date with respect to each such payment of interest, the Closing Date for such
Notes, the place
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of delivery of the Notes and payment therefor, the method of payment and any
requirements for the delivery of opinions of counsel, certificates from the
Company or its officers or a letter from the Company's independent public
accountants, as described in Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The Purchaser's
commitment to purchase Notes shall be deemed to have been made on the basis of
the representation and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Company in
the net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be
purchased by such Purchaser at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency sale
of Note of identical maturity and (ii) may be resold by such Agent at varying
prices from time to time or, if set forth in the applicable Terms Agreement and
Pricing Supplement, at a fixed public offering price. In connection with any
resale of Notes purchased, a Purchaser may use a selling or dealer group and may
reallow any portion of the discount or commission payable pursuant hereto to
dealers or purchasers.
3. OFFERING AND SALE OF NOTES. Each Agent shall communicate to
the Company, orally or in writing, each offer (unless previously rejected by
such Agent as provided below) to purchase Notes on terms previously communicated
by the Company to such Agent, and the Company shall have the sole right to
accept such offers to purchase Notes and may refuse any proposed purchase of
Notes in whole or in part for any reason. Each Agent shall have the right, in
its discretion reasonably exercised, to reject any such offer received by it in
whole or in part. Each Agent and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Procedures.
4. AGREEMENTS. The Company agrees with each of you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company will not file
any amendment of the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current report filed under the Exchange Act, (ii) a
Supplement relating to any offering of, or a change in the maturity dates,
interest rates, issuance prices or other similar terms of, any Notes or (iii) a
supplement relating to an offering of Securities other than the Notes) unless
the Company has furnished each of you a copy for your review prior to filing and
given each of you a reasonable opportunity to comment on any such proposed
amendment or supplement. Subject to the foregoing sentence, the Company will
cause each supplement to the Prospectus to be filed with the Commission pursuant
to the
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applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such filing. The Company will promptly
advise each of you (i) when the Prospectus, and any supplement thereto (except
for a supplement relating to an offering of Securities other than the Notes),
shall have been filed with the Commission pursuant to Rule 424(b), (ii) when,
prior to the termination of the offering of the Notes, any amendment of the
Registration Statement shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for 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 reasonable proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof;
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any 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 under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify
each of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such solicitation
and ceasing using the Prospectus as then supplemented), (ii) prepare and file
with the Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance and (iii) supply any supplemented Prospectus
to each of you in such quantities as you may reasonably request. If such
amendment or supplement, and any documents, certificates and opinions furnished
to each of you pursuant to paragraph (g) of this Section 4 in connection with
the preparation or filing of such amendment or supplement are reasonably
satisfactory in all respects to you, you will, upon the filing of such amendment
or supplement with the Commission and upon the effectiveness of an amendment to
the Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder;
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and, to the extent such documents are not
available pursuant to the ▇▇▇▇▇ filing system, will furnish to each of you
copies of such documents upon reasonable request. In addition, if the Company is
engaged in discussions with any Agent concerning the possible offer of
Medium-Term Notes pursuant to this Agreement, on or prior to the date on which
the Company makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the
Company proposes to describe, in a document filed pursuant to the Exchange
7
Act, the Company will furnish to each of you the information contained or to be
contained in such announcement, provided that the provision of such information
would not violate Regulation F-D under the Securities Exchange Act of 1934. The
Company also will furnish to each of you copies of all material press releases
or announcements furnished to news or wire services. The Company will promptly
notify each of you by telephone or telecopy of (i) any decrease in the rating of
the Notes or any other debt securities of the Company by ▇▇▇▇▇'▇ Investors
Service, Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such
entities no longer are providing such ratings, any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) or (ii) any written notice received from ▇▇▇▇▇'▇ Investors Service,
Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such entities no
longer are providing the ratings referred to in (i), any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act) of any intended or contemplated decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change;
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act;
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may reasonably
request;
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may reasonably
designate, will maintain such qualifications in effect so long as required for
the distribution of the Notes, will arrange for the determination of the
legality of the Notes for purchase by institutional investors and will pay any
fee of the National Association of Securities Dealers, Inc., in connection with
its review of the offering; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Notes, in any
jurisdiction where it is not now so subject;
(g) The Company shall furnish to each of you such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indenture, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to time and at
any time prior to the termination of this Agreement reasonably request;
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expense incident to the performance of its obligations
under this
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Agreement, including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the Registration
Statement, the Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents relating to the offering, the
cost of preparing, printing, packaging and delivering the Notes, the reasonable
fees and disbursements, including fees of counsel, incurred in compliance with
Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse each of you, upon request, on a
monthly basis for all out-of-pocket expenses, if any, incurred by you and
approved by the Company in advance, in connection with this Agreement and (iii)
pay the reasonable fees and expenses of your counsel incurred in connection with
this Agreement and approved by the Company in advance (which approval may be
oral);
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in Section 1 of this Agreement are true and correct at the
time of such acceptance, as though made at and as of such time, and a covenant
that such representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as though
made at and as of such time (it being understood that for purposes of the
foregoing affirmation and covenant such representations and warranties shall
relate to the Registration Statement and Prospectus as amended or supplemented
at each such time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date for the
sale of such Notes, after giving effect to the issuance of such Notes, of any
other Notes to be issued on or prior to such settlement date and of any other
Securities to be issued and sold by the Company on or prior to such settlement
date, the aggregate amount of Securities (including any Notes) which have been
issued and sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement. The Company will inform you
promptly upon your inquiry of the aggregate amount of Securities registered
under the Registration Statement which remain unsold;
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices, the redemption dates (whether pursuant to a sinking
fund or otherwise) or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial statements or other
information, unless, in the case of clause (iii) above, in the reasonable
judgement of any of the Agents, such financial statements or other information
disclosed under the Exchange Act are of such a nature that a certificate of the
Company should be furnished), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company, signed by the chairman of
the board, the president or any vice president (whether or not designated by a
number or word added before or after the title vice president) and the principal
financial or accounting officer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of such supplement, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 5(d) but modified to relate to the last day of the fiscal
quarter for which financial
9
statements of the Company were last filed with the Commission and to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement;
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices, the redemption dates or other similar terms of any
Notes sold pursuant hereto or (iii) setting forth or incorporating by reference
financial statements or other information disclosed under the Exchange Act as of
and for a fiscal quarter, unless, in the case of clause (iii) above, in the
reasonable judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to each
of you a written opinion of counsel of the Company in form reasonably
satisfactory to each of you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in lieu of
such opinion, counsel last furnishing such an opinion to you may furnish each of
you with a letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter authorizing reliance
(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 the effectiveness of such amendment or the filing of such supplement);
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices, the redemption dates (whether pursuant to a sinking
fund or otherwise) or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial statements or other
information, unless, in the case of clause (iii) above, in the reasonable
judgement of any of the Agents, such financial statements or other information
disclosed under the Exchange Act are of such a nature that a letter of [name of
accountants] should be furnished), the Company shall cause [name of
accountants], its independent public accountants, promptly to furnish each of
you a letter, dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form reasonably satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with such
changes as may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration Statement
and the Prospectus, as amended or supplemented to the date of such letter;
PROVIDED, HOWEVER, that, if the Registration Statement or the Prospectus is
amended or supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, [name of accountants] may limit the
scope of such letter, which shall be reasonably satisfactory in form to each of
you, to the unaudited financial statements, the related "Management's Discussion
and Analysis of Financial Condition and Results of
10
Operations" and any other information of an accounting, financial or statistical
nature included in such amendment or supplement, unless, in the reasonable
judgment of any of you, such letter should cover other information; and
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent of the Purchaser,
issue or announce the proposed issuance of any of its debt securities, including
Notes, with terms substantially similar to the Notes being purchased pursuant to
such Terms Agreement, other than borrowings under its revolving credit
agreements and lines of credit and issuances of its commercial paper.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The
obligations of each Agent to solicit offers to purchase the Notes shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the company contained in Section 1 hereof as of the
Execution Time, on the Effective Date, as of the date any supplement to the
Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy in all material respects of the statements of the Company made in any
certificates pursuant to the provisions of this Section 5, to the performance in
all material respects by the Company of its obligations hereunder and to
satisfaction of the following additional conditions in all material respects:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened;
(b) The Company shall have furnished to each Agent the opinion
of counsel for the Company, dated the Execution Time, to the effect
that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Florida, with full corporate power to own
its properties and conduct its business and is not required to
be qualified to do business in any other jurisdiction; each of
the Company's significant subsidiaries, namely [list
significant subsidiaries] (the "Subsidiaries"), are duly
incorporated and validly existing as corporations in good
standing under the laws of the [list jurisdictions of
organization], respectively, each with full corporate power
and authority to own or lease, as the case maybe, and to
operate its properties and conduct business as described in
the Prospectus, and are duly qualified to do business as
foreign corporations and are in good standing under the laws
of each jurisdiction which requires such qualification wherein
each such Subsidiary owns or leases material properties or
conducts material business except where the failure to so
qualify would not be materially adverse to the operations of
the Company and its subsidiaries taken as a whole;
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(ii) all the outstanding shares of capital stock of
the Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, all
outstanding shares of capital stock of the Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as incorporated in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, has duly qualified under the Trust Indenture
Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect); and the Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(v) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus pursuant
to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Prospectus (other than the
financial statements and other financial and statistical
information contained therein
12
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that the Registration Statement at the
Effective Date or at the Execution Time contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the charter or by-laws of the Company or the terms of
any indenture or other agreement or instrument known to such
counsel and to which the Company or any of it subsidiaries is
a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries, except where any
of the foregoing would not have a materially adverse effect
upon the business or operations of the Company and its
subsidiaries taken as a whole and would not materially
adversely affect the offering of the Notes;
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(xi) the Company is not and, after giving effect to
the offering and sale of the Notes and the application of the
proceeds thereof as described in the Prospectus (or any
supplement thereto), will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
13
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Florida or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are reasonably satisfactory to counsel for the Agent and (B) as to matter of
fact, to the extent deemed proper, on certificates of responsible officers of
the Company and public officials;
(c) The Agents shall have received from [name of counsel],
counsel for the Agents, such opinion or opinions, dated the Execution
Time, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus and other related
matters as the Agents may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters;
(d) The Company shall have furnished to the Agents a
certificate of the Company, signed by the chairman of the board, the
president or any vice president (whether or not designated by a number
or word added before or after the title vice president) and the
principal financial or accounting officer of the Company, dated the
Execution Time, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties in Section 1
hereof of the Company in this Agreement are true and correct
in all material respects on and as of the date hereof with the
same effect as if made on the date hereof and the Company has
substantially complied with all the agreements and
substantially satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation of the
Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, expect as set
forth in or contemplated in the Prospectus;
(e) At the Execution Time, [name of accountants] shall have
furnished to the Agents a letter or letters (which may refer to letters
previously delivered to the Agent), dated as of the Execution Time, in
form and substance reasonably satisfactory to the Agents, confirming
that they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
14
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Prospectus and reported on
by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the amounts
included or incorporated in the Registration Statement and the
Prospectus in response to Item 301 of Regulation S-K and of
the latest unaudited financial statements made available by
the Company and its subsidiaries; their limited review in
accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited
interim financial information as indicated in their reports
incorporated in the Registration Statement and the Prospectus;
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the
Company and the Subsidiary; and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Registration Statement and the Prospectus, nothing came
to their attention which caused them to believe that:
(1) the amounts in the "Selected Financial
Data", if any, included or incorporated in the
Registration Statement and the Prospectus do not
agree with the corresponding amounts in the audited
financial statements from which such amounts were
derived;
(2) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply in form in
all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
(3) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Prospectus, there were any changes,
15
at a specified date not more than five Business Days
prior to the date of the letter, in the aggregate
long-term debt due within one year and long-term debt
(exclusive of current portion) of the Company and its
consolidated subsidiaries or common stock of the
Company or decreases in the shareholders' equity of
the Company and its consolidated subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus, or
for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Prospectus to the date
of the most recently available monthly unaudited
financial information there were any decreases
relating to continuing operations, as compared with
the corresponding period in the preceding year in
total revenue or earnings before income taxes or in
the total or per share amounts of net earnings of the
Company and its consolidated subsidiaries, except in
all instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Agents; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 5, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in
the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated
in the Company's Quarterly Reports on Form 10-Q, incorporated
in the Registration Statement and the Prospectus, agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the
Prospectus, on the basis
16
of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of
certain officials of the Company and the acquired company who
have responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements; and
(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and substance to
the Agents and their counsel, this agreement and all obligations of any Agent
hereunder may be canceled at any time by such Agent. Notice of such cancelation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of [name of counsel], counsel for the Agents, at
[address], on the date hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser to purchase any Notes will be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company in Section 1 of this Agreement as of the date of the Terms
Agreement and as of the Closing Date for such Notes, to the performance and
observance in all material respects by the Company of all covenants and
agreements herein contained on its part to be performed and observed and to
satisfaction of the following additional conditions precedent in all material
respects:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement and except to the extent modified by
such Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(d) (except that references
to the Prospectus shall be to the Prospectus as supplemented at the
time of execution of the Terms Agreement), (ii) the opinion
17
of counsel for the Company, dated as of the Closing Date, to
the effect set forth in Section 5(b), (iii) the opinion of
[name of counsel], counsel for the Purchaser, dated as of the
Closing Date, to the effect set forth in Section 5(c), and
(iv) letter of [name of accountants], dated as of the Closing
Date, to the effect set forth in Section 5(e); and
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement and an applicable
Terms Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement or such Terms Agreement and required to be delivered
to the Purchaser pursuant to the terms hereof and thereof shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
at any time prior to, the respective Closing Date by the Purchaser. Notice of
such cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO
PURCHASE. (a)The Company agrees that any person who has agreed to purchase and
pay for any Note, including the Purchaser and any person who purchases pursuant
to a solicitation by any of the Agents, shall have the right to refuse to
purchase such Note if (a) at the Closing Date therefor, any condition set forth
in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of Sections 9(b)(i) through (vi) shall have occurred (with the judgment
of the Agent which presented the offer to purchase such Note being substituted
for any judgment of a Purchaser required therein), the effect of which is, in
the judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical to proceed with the sale and
delivery of such Note (it being understood that under no circumstance shall any
such Agent have any duty or obligation under this Agreement to the Company or to
any such person to exercise the judgment permitted to be exercised under this
Section 7(b) and Section 9(b)).
8. INDEMNIFICATION AND CONTRIBUTION. (a)The Company agrees to
indemnify and hold harmless each of you, the directors, officers or employees of
each of you and each person who controls each of you within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which you, they or any of you or them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise,
18
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Prospectus or any
preliminary Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse as incurred each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any of you specifically for use in connection with the preparation thereof, and
(ii) such indemnity with respect to the Prospectus or any preliminary Prospectus
shall not inure to the benefit of any of you (or any person controlling any of
you) from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such person did not receive
a copy of the Prospectus (or the Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Notes to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in the
Prospectus or any preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have. If the Company shall default in
its obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall indemnify and hold each of you harmless against any loss, claim or
damage arising from or as a result of such default by the Company.
(b) Each of you agrees severally and not jointly to indemnify
and hold harmless the Company, each of its employees and directors, each of its
officers who signs the Registration Statement and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to you, but only with
reference to written information relating to such of you furnished to the
Company by or on behalf of such of you specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Company acknowledges that the names of the Agents set forth in any Pricing
Supplement constitute the only information furnished in writing by or on behalf
of any of you for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Agents, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
will not relieve it from liability which it may have to any
19
indemnified party otherwise than under this Section 8. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel and an additional local counsel, if needed, approved by you in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party or (iv) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 8 is due in accordance with its terms, but is held by a court to
be unavailable or insufficient in whole or in part to hold harmless an
indemnified party for any reason (other than an act or omission or such
indemnified party), the Company and each of you agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively, "Losses") to which the Company and one or more of you may be
subject in such proportion so that each of you is responsible for that portion
as is
20
appropriate to reflect the relative benefits received by the Company and each of
you from the offering of the Notes from which such Losses arise; PROVIDED,
HOWEVER, that in no case shall any of you be responsible for any amount in
excess of the commissions received by such of you in connection with the Notes
from which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
each of you shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and of
each of you in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) of the Notes from which such
Losses arise, and benefits received by each of you shall be deemed to be equal
to the total commissions received by such of you in connection with the Notes
from which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable). Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or any of you. The Company and each of you
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act or the Exchange Act and each director,
officer and employee of any of you shall have the same rights to contribution as
you and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director, officer and employee of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
9. TERMINATION. (a)This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be terminated
by either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first Business Day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
Section 2(a), Section 4(h), Section 8 and Section 10.
21
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if prior to
such time (i) there shall have occurred, subsequent to the agreement to purchase
such Note, any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries, taken
as a whole, the effect of which is, in the judgment of the Purchaser, so
material and adverse as to make it impractical to proceed with the offering or
delivery of such Note, (ii) there shall have been, subsequent to the agreement
to purchase such Note, any decrease in the rating of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's Corporation,
Fitch Ratings Ltd. or if such entities no longer are providing such ratings, any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any formal notice given of any intended or
contemplated decrease in any such rating, (iii) trading in the Company's Common
Stock shall have been suspended by the Commission or the New York Stock Exchange
or trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iv) a material disruption
shall have occurred in commercial banking or securities settlement or clearance
services in the United States, (v) a banking moratorium shall have been declared
either by Federal or New York State authorities or (vi) there shall have
occurred any material outbreak or material escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis, the effect of which on financial markets is such as to make
it, in the judgment of the Purchaser, impracticable to proceed with the offering
or delivery of such Notes as contemplated by the Prospectus (exclusive of any
supplement subsequent to such event).
10. SURVIVAL OF CERTAIN PROVISIONS. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall
survive the termination or cancelation of this Agreement. The provisions of this
Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If at the
time of termination of this Agreement any Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of selling them, the
provisions of Section 4 shall remain in effect until such Notes are resold.
11. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of the Treasurer.
22
12. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
directors, officers, employees, and controlling persons referred to in Section 8
hereof and, to the extent provided in Section 7, any person will have any right
or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same instrument.
23
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 you.
Very truly yours,
Ryder System, Inc.
By:
-------------------------------------
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
[AGENT]
by
------------------------------
Title:
[AGENT]
by
------------------------------
Title:
[AGENT]
by
------------------------------
Title:
SCHEDULE I
Selling Agency Agreement dated
Registration Statement No.
Amount of the Securities registered:
Amount of Notes:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year.......................... [ ]%
From 1 year to less than 18 months......................... [ ]%
From 18 months to less than 2 years........................ [ ]%
From 2 years to less than 3 years.......................... [ ]%
From 3 years to less than 4 years.......................... [ ]%
From 4 years to less than 5 years.......................... [ ]%
From 5 years to less than 6 years.......................... [ ]%
From 6 years to less than 7 years.......................... [ ]%
From 7 years to less than 11 years......................... [ ]%
From 11 years to less than 15 years........................ [ ]%
From 15 years to less than 20 years ....................... [ ]%
20 years to 30 years....................................... [ ]%
Greater than 30 years ..................................... to be negotiated
Address for notices:
Notices to [Agent] shall be directed to it at [Address],
Attention: [Medium Term Notes Department], Telephone number: [ ], Telefax
number: [ ].
Notices to [Agent] shall be directed to it at [Address],
Attention: [Medium Term Notes Department], Telephone number: [ ], Telefax
number: [ ].
Notices to [Agent] shall be directed to it at [Address],
Attention: [Medium Term Notes Department], Telephone number: [ ], Telefax
number: [ ].
Notices to Ryder System, Inc. shall be directed to it at ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
The Company may satisfy its obligation under subsection (c) of
Section 4 of the Selling Agency Agreement to furnish to each of the Agents
copies of all documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act by promptly furnishing
such documents to [counsel for the Agents], Attention: [ ]
RYDER SYSTEM, INC
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
[Date]
Medium-Term Notes, Series [ ], Due Nine Months or More from
Date of Issue (the "Notes") are to be offered on a continuing basis by Ryder
System, Inc. (the "Company"). [Agent], [Agent], and [Agent] as agents
(individually an "Agent" and collectively the "Agents"), have agreed to solicit
purchases of Notes issued in fully registered form. The Agents will not be
obligated to purchase Notes for their own accounts. The Notes are being sold
pursuant to a Selling Agreement among the Company and the Agents dated [ ] (the
"Agency Agreement"). The Notes will rank equally with all other unsecured and
unsubordinated debt of the Company and have been registered with the Securities
and Exchange Commission (the "Commission"). JPMorgan Chase Bank (the "Trustee")
is the trustee under the Indenture dated as of [ ] covering the Notes (the
"Indenture").
The Agency Agreement provides that Notes may also be purchased
by an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under
the administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by a Global Security (as defined
hereinafter) delivered to [name of agent for DTC] ("[name of agent for DTC]"),
as agent for The Depository Trust Company ("DTC"), and recorded in the
book-entry system maintained by DTC (a "Book-Entry Note"), a certificate
delivered to the Holder thereof or a Person designated by such Holder (a
"Certificated Note") or such other form as agreed to by the Company and [name of
agent for DTC]. Only Notes denominated and payable in U.S. dollars may be issued
as Book-Entry Notes. An owner of a Book-Entry Note will not be entitled to
receive a certificate representing such Note, except in the event that use of
the book-entry system for the Notes is discontinued.
The procedures to be followed during, and the specific terms
of, the solicitation of offers by the Agents and the sale as a result thereof by
the Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury Department. The
Company will advise the Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the agents and the Trustee
are to communicate regarding offers to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering
are explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein,
2
terms defined in the Indenture and the Notes shall be used herein as therein
defined. Notes for which interest is calculated on the basis of a fixed interest
rate, which may be zero, are referred to herein as "Fixed Rate Notes". Notes for
which interest is calculated on the basis of a floating interest rate are
referred to herein as "Floating Rate Notes". To the extent the procedures set
forth below conflict with the provisions of the Notes, the Indenture, DTC's
operating requirements or the Agency Agreement, the relevant provisions of the
Notes, the Indenture, DTC's operating requirements and the Agency Agreement
shall control.
PART I
ADMINISTRATIVE PROCEDURES FOR
BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, [name of agent for
DTC] will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from the Company and [name of agent for DTC] to DTC dated as of
the date hereof and a Medium-Term Note Certificate Agreement between [name of
agent for DTC] and DTC 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 one global security in fully
registered form without coupons (a "Global Security")
representing up to $[ ] principal amount of all such
Book-Entry Notes that have the same original issue
date, original issue discount provisions, if any,
Interest Payment Dates, Record Dates, reset,
extension, repayment, sinking fund and redemption
provisions, if any, Maturity Date and, in the case of
Fixed Rate Notes, interest rate, 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 (all of the foregoing are collectively
referred to as the "Terms"). Each Global Security
will be dated and issued as of the date of Settlement
and authenticated by the Trustee. Each Global
Security will bear an original issue date, which will
be (i) with respect to an original Global Security
(or any portion thereof), the original issue date
specified in such Global Security and (ii) following
a consolidation of Global Securities, with respect to
the Global Security resulting from such
consolidation, the most recent Interest Payment Date
to which interest has been paid or duly provided for
on the predecessor Global Securities, regardless of
the date of authentication of such resulting Global
Security. No Global Security will
3
represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note.
IDENTIFICATION NUMBERS: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers, which series consists of approximately
900 CUSIP numbers and relates to Global Securities
representing Book-Entry Notes and book-entry
medium-term notes issued by the Company with other
series designations. [Name of agent for DTC], the
Company and DTC have obtained from the CUSIP Service
Bureau a written list of such reserved CUSIP numbers.
The Company will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Securities. [Name of
agent for DTC] will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and, if it
deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Global Securities.
Upon obtaining such additional CUSIP numbers, the
Company shall deliver a list of such additional CUSIP
numbers to [name of agent for DTC] and DTC.
REGISTRATION: Global Securities will be issued only in fully
registered form without coupons. Each Global Security
will be registered in the name of Cede & Co., as
nominee for DTC, on the securities register for the
Notes maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Book-Entry Note, the "Participants")
to act as agent or 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 of such Book-Entry Note in the
account of such Participants. The ownership interest
of such beneficial owner (or such participant) in
such Book-Entry Note will be recorded through the
records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting
4
on behalf of beneficial transferors and transferees
of such Note.
EXCHANGES: [Name of agent for DTC] may deliver to DTC and the
CUSIP Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to
the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A)
Fixed-Rate Book-Entry Notes having the same Terms and
for which interest has been paid to the same date, or
(B) Floating Rate Book-Entry Notes having the same
terms and for which interest has been paid to the
same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at
least thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Security. Upon receipt of
such a notice, DTC will send to its participants
(including [name of agent for DTC]) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, [name of agent for DTC] will
deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and such new CUSIP
number and stating that, as of such exchange date,
the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified
exchange date, [name of agent for DTC] will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers of
the exchanged Global Securities will, in accordance
with CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be exchanged
exceed $[ ] in aggregate principal amount, one Global
Security will be authenticated and issued to
represent each $[ ] of principal amount of the
exchanged Global Securities and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Global Securities (see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature on a date (the
"Maturity Date") not less than 9 months after the
Original Issue Date for such Note.
PRICE TO PUBLIC: Each Book-Entry Note will be issued at the percentage
of principal amount specified in the Prospectus
Supplement (as
5
defined in Section l(c) of the Agency Agreement) or
in a Pricing Supplement as defined in the Prospectus
Supplement relating to such Note.
DENOMINATIONS: The denomination of any Book-Entry Note will be a
minimum of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts
not in excess of $[ ]. If one or more Book-Entry
Notes having an aggregate principal amount in excess
of $[ ] would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be authenticated and issued to
represent each $[ ] principal amount of such
Book-Entry Note or Notes and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
INTEREST: GENERAL. Except as set forth in the Book-Entry Note,
interest, if any, on each Book-Entry Note will accrue
from the original issue date for the first interest
period or the last date to which interest has been
paid, if any, for each subsequent interest period, on
the Global Security representing such Book-Entry
Note, and will be calculated and paid in the manner
described in such Book-Entry Note and in the
Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest
Payment Date or to but excluding the maturity of any
payment of principal (hereinafter referred to as
"Maturity"), other than a Maturity of a Fixed Rate
Book-Entry Note occurring on the 31st day of a month,
in which case such payment of interest will include
interest accrued to but excluding the 30th day of
such month, or to but excluding the date of
redemption or repayment in full of such Book-Entry
Note (hereinafter referred to as "Redemption").
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 Corporation will use the information
received in the pending deposit message described
under Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or weekly)
bond report published by Standard & Poor's
Corporation.
6
RECORD DATES. The Record Date with respect to any
Interest Payment Date shall be the date 15 calendar
days immediately preceding such Interest Payment Date
(whether or not a Business Day).
INTEREST PAYMENT DATES ON FIXED RATE BOOK-ENTRY
NOTES. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments on
Fixed Rate Book-Entry Notes will be made semiannually
on April 1 and October 1 of each year and at Maturity
or upon Redemption; 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. 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.
INTEREST PAYMENT DATES ON FLOATING RATE BOOK-ENTRY
NOTES. Interest Payments will be made on Floating
Rate Book-Entry Notes monthly, quarterly,
semi-annually or annually, or as specified in the
applicable Pricing Supplement. Unless otherwise set
forth in the Note, interest will be payable, in the
case of Floating Rate Book-Entry Notes with a monthly
Interest Payment Period, on the third Wednesday of
each month; with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September and
December of each year; with a semi-annual Interest
Payment Period, on the third Wednesday of the two
months specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period, on
the third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; PROVIDED, HOWEVER,
that if an Interest Payment Date for a Floating Rate
Book-Entry Note 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 Note, except in the case of
a Floating Book-Entry Note for which the Base Rate is
LIBOR, 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.
7
NOTICE OF INTEREST PAYMENT AND RECORD DATES. At the
written request of the Company, [name of agent for
DTC] 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. Promptly
after each Interest Determination Date for Floating
Rate Book-Entry Notes, [name of agent for DTC], as
Calculation Agent, will notify Standard & Poor's
Corporation of the interest rates determined on such
Interest Determination Date.
CALCULATION OF INTEREST: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book- Entry Notes, except as otherwise set forth
therein, will be calculated on the basis of actual
days elapsed and a year of 360 days, except that in
the case of a Floating Rate Book-Entry Note for which
the Base Rate is the Treasury Rate, interest will be
calculated on the basis of the actual number of days
in the year.
PAYMENT OF PRINCIPAL PAYMENT OF INTEREST ONLY. Promptly after each Record
AND INTEREST: Date, [name of agent for DTC] will deliver to the
Company and DTC a written notice setting forth, by
CUSIP number, the amount of interest to be paid on
each Global Security on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with Maturity or Redemption) and the total
of such amounts. DTC will confirm the amount payable
on each Global Security on such Interest Payment Date
by reference to the appropriate bond reports
published by Standard & Poor's Corporation. The
Company will pay to [name of agent for DTC], as
paying agent, the total amount of interest due on
such Interest Payment Date (other than at Maturity or
upon Redemption), and [name of agent for DTC] will
pay such amount to DTC, at the times and in the
manner set forth below under "Manner of Payment".
PAYMENTS AT MATURITY OR UPON REDEMPTION. On or about
the first Business Day of each month, [name of agent
for DTC] will deliver to the Company, DTC and the
Trustee a written list of principal and interest to
be paid on each Global Security maturing (at Maturity
or upon Redemption or otherwise) in such month. [Name
of agent for DTC], the
8
Company and DTC will confirm the amounts of such
principal and interest payments with respect to each
such Global Security on or about the fifth Business
Day preceding the Maturity Date or Redemption Date,
as the case may be, of such Global Security. On or
before the Maturity Date or Redemption Date, as the
case may be, the Company will pay to [name of agent
for DTC], as paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity Date or Redemption Date, as the case
may be. [Name of agent for DTC] will pay such amount
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 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 at Maturity or
upon Redemption of such Global Security, the Trustee
will cancel such Global Security in accordance with
the Indenture and so advise the Company. On the first
Business Day of each month, if [name of agent for
DTC] is not the Trustee, then [name of agent for DTC]
will deliver to the Trustee a written statement
indicating the total principal amount of Outstanding
Global Securities as of the immediately preceding
Business Day.
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 [name of agent for DTC] in
immediately available funds no later than 9:30 A.M.
(New York City time) on such date, or as soon as
possible thereafter. The Company will make such
payment on such Global Securities by instructing
[name of agent for DTC] to withdraw funds from an
account maintained by the Company at [name of agent
for DTC] or by wire transfer to [name of agent for
DTC]. The Company will confirm any such instructions
in writing to [name of agent for DTC]. Prior to 10
A.M. (New York City time) on the Maturity Date or
Redemption Date or as soon as possible thereafter,
[name of agent for DTC] 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 principal (together with
interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Maturity or upon
9
Redemption), interest payments shall be made to DTC,
in funds available for immediate use by DTC, in
accordance with existing arrangements between [name
of agent for DTC] and DTC. On each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. None of the
Company (as issuer or as paying agent), the Trustee
or [name of agent for DTC] shall have any direct
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding
payments and materials directly to the beneficial
owner of such Note.
PROCEDURE FOR RATE The Company and the Agents will discuss from time to
SETTING AND POSTING: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Book-Entry Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are
to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
ACCEPTANCE AND Each Agent will promptly advise the Company by
REJECTION OF OFFERS: telephone of any offers to purchase Book-Entry Notes
received by such Agent. The Company will have the
sole right to accept any such offer to purchase
Book-Entry Notes. The Company may reject any such
orders in whole or in part.
Each Agent may, in its discretion reasonably
exercised, reject an offer to purchase Book-Entry
Notes received by it in whole or in part.
PREPARATION OF PRICING If an offer to purchase a Book- Entry Note is
SUPPLEMENT: accepted by or on behalf of the Company, the Company,
with the approval of the Agent that presented such
offer (the "Presenting Agent"), will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Book-Entry Note
10
and will arrange to have 10 copies thereof filed with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will
supply at least 10 copies thereof (and additional
copies if requested) to the Presenting Agent and one
copy to the Trustee. The Presenting Agent will cause
a Pricing Supplement to be delivered to the purchaser
of the Book-Entry Note.
The copies of the Pricing Supplement to be sent to
the Presenting Agent shall be sent by telecopy or
overnight courier to arrive no later than 11:00 a.m.,
New York City time, on the second Business Day
following the sale date and shall be sent:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
or to such other address as the
Presenting Agent may specify.
Receipt of all telecopy
transmissions shall be confirmed by
telephone.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Out-dated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
SUSPENSION OF The Company reserves the right, in its sole
SOLICITATION: discretion, to instruct the Agents to suspendp at any
time, for any period of time permanently, the
11
solicitation of orders to purchase Book-Entry Notes.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as the
Company has advised them that such solicitation may
be resumed.
AMENDMENT OR If the Company decides to amend or supplement the
SUPPLEMENT: Registration Statement (as defined in Section l(c) of
the Agency Agreement) or the Prospectus (except for a
supplement relating to an offering of securities
other than the Notes), it will promptly advise the
Agents and furnish the Agents with the proposed
amendment or supplement and with such certificates
and opinions as are required, all to the extent
required by and in accordance with the terms of the
Agency Agreement. Subject to the provisions of the
Agency Agreement the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents,
the Trustee and [name of agent for DTC] with copies
of any supplement and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
In the event that at the time the Company suspends
solicitation of offers to purchase Book-Entry Notes
there shall be any outstanding offers to purchase
Book-Entry Notes that have been accepted by the
Company but for which settlement has not yet
occurred, the Company will promptly advise the
relevant Agent, the Trustee and [name of agent for
DTC] whether such orders may be settled and whether
copies of the Prospectus as supplemented to the time
of the suspension may be delivered in connection with
the settlement of such sales. The Company will have
the sole responsibility for such decision and for any
arrangements that may be made in the event that the
Company determines that such orders may not be
settled or that copies of such Prospectus may not be
so delivered.
PROCEDURE FOR RATE When the Company has determined to change the
CHANGES: interest rates of Book- Entry Notes being offered, it
will promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The Agents
will telephone the Company with recommendations as to
the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of orders.
12
Until such time, only "indications of interest" may
be recorded.
DELIVERY OF PROSPECTUS: A copy of the Prospectus and a Pricing Supplement
relating to a Book-Entry Note must accompany or
precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of such
Book-Entry Note and payment for such Book-Entry Note
by its purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is
sent by the Presenting Agent to a customer or his
agent, such confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or Supplement"
above, the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by it. The
Company will make such delivery if such Book-Entry
Note is sold directly by the Company to a purchaser
(other than an Agent).
CONFIRMATION: For each offer to purchase a Book-Entry Note
solicited by an Agent and accepted by the Company,
the Presenting Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
the details set forth below and delivery and payment
instructions.
SETTLEMENT: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled on
the third Business Day following the date of sale of
such Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day
following the date of sale.
DETAILS FOR SETTLEMENT: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through any Agent, as agent,
shall be as follows:
13
A. The Presenting Agent will advise the Company
by telephone of the following settlement
information:
1. Principal amount of the Book-Entry
Note.
2. 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 Base Rate,
initial interest rate (if known at
such time), Index Maturity,
Interest Reset Period, Interest
Reset Dates, Spread or Spread
Multiplier (if any), minimum
interest rate (if any).
3. Issuance price of the Book-Entry
Note.
4. Trade and Settlement dates.
5. Maturity Date and, if applicable,
the Extension Period and Final
Maturity Date.
6. Record Dates, Interest Payment
Dates and the Interest Payment
Period.
7. Optional Reset Dates, if any.
8. Redemption provisions, if any.
9. Repayment or sinking fund
provisions, if any.
10. Presenting Agent's DTC participant
account number and commission, to
be paid in the form of a discount
upon settlement.
11. Whether such Book-Entry Note is
issued at an original issue
discount and, if so, the total
amount of OID, the yield to
maturity and the initial accrual
period OID.
12. Taxpayer identification number of
the purchaser.
13. Net proceeds to the Company.
14
14. Any other applicable terms.
B. The Company will assign a CUSIP number to
the Global Security representing such
Book-Entry Note, assign an order number to
such Book-Entry Note and then advise [name
of agent for DTC] by telephone (confirmed in
writing at any time on the same date) or
electronic transmission of the information
set forth in Settlement Procedure "A" above,
such CUSIP number, such order number, the
name of the Presenting Agent and any other
applicable information. The Company will
also notify the Presenting Agent by
telephone or electronic transmission of such
CUSIP number as soon as practicable. The
Company will provide [name of agent for DTC]
with registration instructions and Taxpayer
Identification Number (if the Note is not to
be registered to DTC or its nominee).
C. [Name of agent for DTC] will enter a pending
deposit message through DTC's Participant
Terminal System providing the following
settlement information to DTC (which shall
route such information to Standard & Poor's
Corporation and Interactive Data
Corporation), the Presenting Agent and, upon
request, the Trustee:
1. The information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for
such Book-Entry Note, number of
days by which such date succeeds
the related Record Date (which, in
the case of Floating Rate
Book-Entry Notes that reset daily
or weekly, shall be the DTC Record
Date, which is the date five
calendar days immediately preceding
the applicable Interest Payment
Date and, in the case of all other
Book-Entry Notes, shall be the
Record Date as defined in such
Notes)
15
and amount of interest payable on
such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
7. Account numbers of participant
accounts maintained by DTC on
behalf of the Presenting Agent and
the Trustee.
D. To the extent the Company has not already
done so, the Company will deliver to the
Trustee a Global Security in a form that has
been approved by the Company, the Agents and
the Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global
Security representing such Book-Entry Note
in accordance with the terms of the written
order of the Company then in effect.
F. DTC will credit such Book-Entry Note to
[name of agent for DTC]'s participant
account at DTC.
G. [Name of agent for DTC] will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit
such Book-Entry Note to [name of agent for
DTC]'s participant account and credit such
Book-Entry Note to the Presenting Agent's
participant account and (ii) debit the
Presenting Agent's settlement account and
credit [name of agent for DTC]'s settlement
account for an amount equal to the price of
such Book-Entry Note less the Presenting
Agent's commission. The entry of such a
deliver order shall constitute a
representation and warranty by [name of
agent for DTC] to DTC that (i) the Global
Security representing such Book-Entry Note
has been
16
issued and authenticated and (ii)[name of
agent for DTC] is holding such Global
Security pursuant to the Medium-Term Note
Certificate Agreement between [name of agent
for DTC] and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting
Agent's participant account and credit such
Book-Entry Note to the participant accounts
of the Participants with respect to such
Book-Entry Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent for an amount equal to the
price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
▇. [Name of agent for DTC] will, upon receipt
of funds from the Presenting Agent in
accordance with Settlement Procedure "G",
credit or wire transfer to an account
specified by the Company funds available for
immediate use in the amount transferred to
[name of agent for DTC] in accordance with
Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
SETTLEMENT PROCEDURES For orders of Book-Entry Notes solicited by an Agent
TIMETABLE: and accepted by the Company for settlement on the
first Business Day after the sale date, Settlement
Procedures "A" through "K" set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth
below:
17
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
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. and 12:00 Noon on the first
Business Day after the sale date and no later than
2:00 P.M. on the Business Day before the settlement
date, respectively. 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 12:00 Noon and 2:00 P.M.,
respectively, on the Business Day before the
settlement date. Settlement Procedure "I" is subject
to extension in accordance with any extension of
Fedwire closing deadlines and in the other events
specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, [name of agent for DTC] will deliver to
DTC, through DTC's Participant Terminal System, a
cancelation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
FAILURE TO SETTLE: If [name of agent for DTC] fails to enter an SDFS
deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", then, upon
written request of the Company (which may be by
telecopy) [name of agent for DTC] shall deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to [name of agent
for DTC]'s participant account. DTC will process the
18
withdrawal message, provided that [name of agent for
DTC]'s participant account contains a principal
amount of the Global Security representing such
Book-Entry Note that is at least equal to the
principal amount to be debited. If a withdrawal
message is processed with respect to all the
Book-Entry Notes represented by a Global Security,
the Trustee will cancel such Global Security in
accordance with the Indenture and so advise the
Company and [name of agent for DTC], and [name of
agent for DTC] will make appropriate entries in its
records. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security,
[name of agent for DTC] will exchange such Book-Entry
Note for two Global Securities, one of which shall
represent such Book-Entry Notes and shall be canceled
immediately after issuance and the other of which
shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP 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 Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant
to Settlement Procedures "H" and "G" respectively.
Thereafter [name of agent for DTC] will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than a
default by the Presenting Agent in the performance of
its obligations hereunder and under the Agency
Agreement, then the Company will reimburse the
Presenting Agent or [name of agent for DTC], as
applicable, on an equitable basis for the loss of the
use of funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to
19
settle with respect to one or more, but not all, of
the Book-Entry Notes to have been represented by a
Global Security, [name of agent for DTC] will
provide, in accordance with Settlement Procedure "E",
for the authentication and issuance of a Global
Security representing the other Book-Entry Notes to
have been represented by such Global Security and
will make appropriate entries in its records.
TRUSTEE AND [NAME OF Nothing herein shall be deemed to require the Trustee
AGENT FOR DTC] or [name of agent for DTC] to risk or expend its own
NOT TO RISK FUNDS: funds in connection with any payment to the Company,
DTC, the Agents or the purchaser, it being understood
by all parties that payments made by the Trustee or
[name of agent for DTC] to the Company, DTC, the
Agents or the purchaser shall be made only to the
extent that funds are provided to the Trustee or
[name of agent for DTC] for such purpose.
AUTHENTICITY OF The Company will cause the Trustee to furnish the
SIGNATURES: Agents from time to time with the specimen signatures
of each of the Trustee's officers, employees or
agents who has been authorized by the Trustee to
authenticate Book-Entry Notes, but neither [name of
agent for DTC] nor any Agent will have any obligation
or liability to the Company or the Trustee in respect
of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on
any Book-Entry Note.
PAYMENT OF EXPENSES: Each Agent shall forward to the Company, on a monthly
basis, a statement of the out-of-pocket expenses
incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the
Agency Agreement. The Company will remit payment to
the Agents currently on a monthly basis.
PERIODIC STATEMENTS Upon the request of the Company, [name of agent for
FROM [NAME OF DTC] will send to the Company a statement setting
AGENT FOR DTC]: forth the principal amount of Book-Entry Notes
Outstanding as of that date and setting forth a brief
description of any sales of Book- Entry Notes of
which the Company has advised [name of agent for DTC]
but which have not yet been settled.
PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar and transfer agent and authenticating
and paying agent in connection with the Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as of
the date of Settlement and authenticated by the
Trustee. Each Certificated Note will bear an Original
Issue Date, on which will be (i) with respect to an
original Certificated Note (or any portion thereof),
its original issuance date (which will be the
settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or
stolen Certificated Note, the Original Issue Date of
the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued
Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFER AND EXCHANGES: A Certificated Note may be presented for transfer or
exchange at the office of the Trustee at Attn:
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Institutional Trust Services.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but
different authorized denominations without service
charge. Certificated Notes will not be exchangeable
for Book-Entry Notes.
MATURITIES: Each Certificated Note will mature on a date not less
than 9 months after the date of delivery by the
Company of such Certificated Note (the "Closing
Date").
DENOMINATIONS: The denomination of any Certificated Note denominated
in U.S. dollars will be a minimum of $1,000 or any
amount in excess thereof that is an integral multiple
of $1,000.
2
INTEREST: GENERAL. Interest, if any, on each Certificated Note
will accrue from the original issue date for the
first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period, and will be calculated and paid in
the manner described in such Note and in the
Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Certificated Note will
include interest accrued to but excluding the
Interest Payment Date or to but excluding Maturity or
to but excluding the date of Redemption.
RECORD DATES. The Record Date with respect to any
Interest Payment Date shall be the date 15 calendar
days immediately preceding such Interest Payment Date
whether or not such date shall be a Business Day.
FIXED RATE CERTIFICATED NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes
will be made semiannually on May 1 and November 1 of
each year and at Maturity or upon Redemption;
PROVIDED, HOWEVER, that in the case of a Fixed 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. If any Interest
Payment Date for or the date of Maturity or
Redemption 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 or Maturity
or Redemption, as the case may be.
FLOATING RATE CERTIFICATED NOTES. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually or as
specified in the applicable Pricing Supplement.
Interest will be payable, in the case of Floating
Rate Certificated Notes with a monthly Interest
Payment Period, on the third Wednesday of each month;
with a quarterly interest Payment Period, on the
third
3
Wednesday of March, June, September and December of
each year; with a semiannual Interest Payment Period,
on the third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and with
an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to
Settlement Procedure "A" below; PROVIDED, HOWEVER,
that if any Interest Payment Date for a Floating Rate
Certificated Note would otherwise be a day that is
not a Business Day with respect to such Floating Rate
Certificated Note, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the case
of a Floating Rate Certificated Note for which the
Base Rate is LIBOR, 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 INTEREST: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year or twelve 30-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, except as otherwise
set forth therein, will be calculated on the basis of
actual days elapsed and a year of 360 days, except
that in the case of a Floating Rate Certificated Note
for which the Base Rate is the Treasury Rate,
interest will be calculated on the basis of the
actual number of days in the year.
PAYMENTS OF PRINCIPAL The Trustee or Paying Agent, as the case may be, will
AND INTEREST: pay the principal amount of each Certificated Note at
Maturity upon presentation of such Certificated Note
to the Trustee or Paying Agent, as the case may be.
Such payment, together with payment of interest due
at Maturity of such
4
Certificated Note, will be made in funds available
for immediate use by the Trustee and in turn by the
Holder of such Certificated Note. Certificated Notes
presented to the Trustee at Maturity for payment will
be canceled by the Trustee in accordance with the
Indenture. All interest payments on a Certificated
Note (other than interest due at Maturity) will be
made by check drawn on the Trustee, the Paying Agent,
as the case may be, or another Person appointed by
the Trustee, mailed by the Trustee to the Person
entitled thereto as provided in such Note and the
Indenture; PROVIDED, HOWEVER, that the holder of
$10,000,000 or more of the Certificated Notes with
similar tenor and terms will be entitled to receive
payment by wire transfer in U.S. dollars, but only if
the Trustee, or the Paying Agent, as the case may be,
shall have received appropriate payment instructions
in writing fifteen calendar days prior to any
Interest Payment Date or payment of principal due at
Maturity. Within 10 days after each Record Date, the
Trustee will furnish the Company with a list of
interest payments to be made on the following
Interest Payment Date for each Certificated Note and
in total for all Certificated Notes. The Trustee will
provide monthly to the Company lists of principal and
interest, to the extent ascertainable, to be paid on
Certificated Notes maturing in the next month. The
Company will provide to the Trustee not later than
any payment date sufficient moneys to pay in full all
principal and interest payments due on the payment
date. The Trustee shall make all such payments in
accordance with the terms of the Notes.
The Trustee will be responsible for withholding taxes
on interest paid on Certificated Notes as required by
applicable law.
If the Maturity or Redemption of a Certificated Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment date for the
period from and after such Maturity or date of
Redemption, as the case may be.
PROCEDURE FOR RATE The Company and the Agents will discuss from time to
SETTING AND POSTING: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne
5
by Certificated Notes that may be sold as a result of
the Solicitation of offers by the Agents. If the
Company decides to set prices of, and rates borne by,
any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates
to be referred to herein as "posting") or if the
Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of
the prices and rates to be posted.
ACCEPTANCE AND Each Agent will promptly advise the Company of any
REJECTION OF OFFERS: offers to purchase Certificated Notes received by
such Agent. The Company will have the sole right to
accept any such offer to purchase Certificated Notes.
The Company may reject any such offer in whole or in
part.
Each Agent may, in its discretion reasonably
exercised, reject any offer to purchase Certificated
Notes received by it in whole or in part.
PREPARATION OF If any offer to purchase a Certificated Note is
PRICING SUPPLEMENT: accepted by the Company, the Company, with the
approval of the Presenting Agent, will prepare a
Pricing Supplement reflecting the terms of such
Certificated Note and will arrange to have 10 copies
thereof filed with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act
and will supply at least 10 copies thereof (or
additional copies if requested) to the Presenting
Agent and one copy to the Trustee. The Presenting
Agent will cause a Pricing Supplement to be delivered
to the purchaser of the Certificated Note.
The copies of the Pricing Supplement to be sent to
the Presenting Agent shall be sent by telecopy or
overnight courier to arrive no later than 11:00 a.m.,
New York City time, on the Business Day following the
sale date and shall be sent:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
6
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
or to such other address as the Presenting Agent may
specify. Receipt of all telecopy transmissions shall
be confirmed by telephone.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
SUSPENSION OF The Company reserves the right, in its sole
SOLICITATION; AMENDMENT discretion, to instruct the Agents to suspend at any
OR SUPPLEMENT OF time, for any period of time or permanently, the
PROSPECTUS: solicitation of offers to purchase Certificated
Notes. Upon receipt of such instructions from the
Company, the Agents will forthwith suspend
solicitation of offers to purchase Certificated Notes
from the Company until such time as the Company has
advised them that such solicitation may be resumed.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus (except for
a supplement relating to an offering of securities
other than the Notes), it will promptly advise the
Agents and the Trustee and will furnish the Agents
and the Trustee with the proposed amendment or
supplement and with such certificates and opinions as
are required, all to the extent required by and in
accordance with the terms of the Agency
7
Agreement. Subject to the provisions of the Agency
Agreement, the Company will mail to the Commission
for filing therewith any supplement to the Prospectus
relating to the Notes, provide the Agents and the
Trustee with copies of any such supplement and
confirm to the Agents that such supplement has been
filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
In the event that at the time the Company suspends
solicitation of offers to purchase Certificated Notes
there shall be any outstanding offers to purchase
Certificated Notes that have been accepted by the
Company but for which settlement has not yet
occurred, the Company will promptly advise the
relevant Agent and the Trustee whether such sales may
be settled and whether copies of the Prospectus as
supplemented to the time of the suspension may be
delivered in connection with the settlement of such
sales. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such sales may not be settled or that copies of such
Prospectus may not be so delivered.
PROCEDURE FOR When the Company has determined to change the
RATE CHANGES: interest rates of Certificated Notes being offered,
it will promptly advise the Agents and the Agents
will forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates. At
such time as the Company has advised the Agents of
the new interest rates, the Agents may resume
solicitation of orders. Until such time, only
"indication of interest" may be recorded.
DELIVERY OF PROSPECTUS: A copy of the Prospectus and Pricing Supplement
relating to a Certificated Note must accompany or
precede the earliest of any written offer of such
Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is
received by the Agents between the time an order for
a Certificated Note is placed and the time written
confirmation thereof is sent by the Presenting Agent
8
to a customer or his agent, such confirmation shall
be accompanied by a Prospectus and Pricing Supplement
setting forth the terms in effect when the order was
placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent
will deliver a Prospectus and Pricing Supplement as
herein described with respect to each Certificated
Note sold by it. The Company will make such delivery
of such Certificated Note if sold directly by the
Company to a purchaser (other than any Agent).
CONFIRMATION: For each offer to purchase a Certificated Note
solicited by an Agent and accepted by the Company,
the Presenting Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
the details set forth below and delivery and payment
instructions.
SETTLEMENT: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the Presenting Agent and the
Presenting Agent's delivery of such Certificated Note
against receipt of immediately available funds shall,
with respect to such Certificated Note, constitute
"settlement". The Closing Date with respect to any
offer to purchase Certificated Notes accepted by the
Company will be a date on or before the third
Business Day next succeeding the date of acceptance
unless otherwise agreed by the purchaser and the
Company and shall be specified upon acceptance of
such offer (but shall be no earlier than the next
Business Day following the date of acceptance). The
Company will instruct the Trustee to effect delivery
of each Certificated Note no later than 1:00 P.M.,
New York City time, on the Closing Date to the
Presenting Agent for delivery to the purchaser.
DETAILS FOR SETTLEMENT: For each offer to purchase a Certificated Note that
is accepted by the Company, the Presenting Agent will
provide (unless provided by the purchaser directly to
the Company) by telephone the following information
to the Company:
1. Exact name of registered owner.
2. Exact address of registered owner
and address for payment of
principal and interest.
9
3. Taxpayer identification number of
registered owner.
4. Principal amount of the
Certificated Note.
5. 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, Interest
Reset Dates, Spread or Spread
Multiplier (if any), minimum
interest rate (if any) and maximum
interest rate (if any).
6. Issuance price (including currency)
of the Certificated Note.
7. Trade or Settlement dates.
8. Maturity Date and, if applicable,
the Extension Period and Final
Maturity Date.
9. Interest Payment Dates and the
Interest Payment Period.
10. Whether such Certificated Note is
issued at an original issue
discount and, if so, the total
amount of OID, the yield to
maturity and the initial accrual
period OID.
11. Optional Reset Dates, if any.
12. Redemption provisions, if any.
13. Repayment of sinking fund
provisions, if any.
14. Presenting Agent's commission,
determined as provided in Section 2
of the Agency Agreement, to be paid
in the form of a discount upon
settlement.
15. Any other applicable terms.
The Presenting Agent will advise the Company by
telephone, confirmed in writing of the foregoing
information (unless provided by the purchaser
directly to the Company) for each offer to purchase a
Certificated Note solicited by such Agent and
accepted by the Company in time for the Trustee to
prepare and authenticate the required Certificated
10
Note. Before accepting any offer to purchase a
Certificated Note to be settled in less than three
Business Days, the Company shall verify that the
Trustee will have adequate time to prepare and
authenticate such Certificated Note.
After receiving from the Presenting Agent the detail
for each offer to purchase a Certificated Note that
has been accepted by the Company, the Company will,
after recording the details and any necessary
calculations, provide appropriate documentation to
the Trustee, including the information provided by
the Presenting Agent necessary for the preparation
and authentication of such Certificated Note. Prior
to preparing the Certificated Note for delivery (but
in any case no later than 10:00 A.M. on the Business
Day next preceding the Closing Date therefor), the
Trustee will confirm the details of such issue with
the Presenting Agent by telephone.
NOTE DELIVERIES AND Upon receipt of appropriate documentation and
CASH PAYMENT: instructions, the Company will cause the Trustee to
prepare and authenticate the pre printed 4-ply
Certificated Note packet containing the following
documents in forms approved by the Company, the
Presenting Agent and the Trustee:
1. Certificated Note with customer
receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be authenticated on the
Closing Date therefor. The Trustee will authenticate
each Certificated Note and deliver it to the
Presenting Agent (and deliver the stubs as indicated
above), all in accordance with written instructions
(or oral instructions confirmed in writing (which may
be given by telex or telecopy) on the next Business
Day) from the Company. Delivery by the Trustee of
each Certificated Note will be made upon confirmation
from the Company that it has received payment
therefor (provided that the Company shall have
previously notified the Presenting Agent that
delivery will not occur until such confirmation).
11
Upon verification ("Verification") by the Presenting
Agent that a Note has been prepared and properly
authenticated by the Trustee and registered in the
name of the purchaser in the proper principal amount
and other terms in accordance with the aforementioned
written instructions or confirmation, payment will be
made to the Company by the Presenting Agent the same
day as the Presenting Agent's receipt of the
Certificated Note in immediately available funds.
Such payment shall be made by the Presenting Agent
(i) only upon prior receipt by the Presenting Agent
of immediately available funds from or on behalf of
the purchaser unless the Presenting Agent decides, at
its option, to advance its own funds for such payment
against subsequent receipt of funds from the
purchaser and (ii) only after the Trustee has made
the Certificated Note available for inspection by the
Presenting Agent.
Upon delivery of a Certificated Note to the
Presenting Agent, Verification by the Presenting
Agent and the giving of instructions for payment, the
Presenting Agent shall promptly deliver such Note to
the purchaser.
In the event any Certificated Note is incorrectly
prepared, the Trustee shall promptly issue a
replacement Certificated Note in exchange for the
incorrectly prepared Certificated Note.
FAILURE TO SETTLE: If the Presenting Agent, at its own option, has
advanced its own funds for payment against subsequent
receipt of funds from the purchaser, and if the
purchaser shall fail to make payment for the
Certificated Note on the Closing Date therefor, the
Presenting Agent will promptly notify the Trustee and
the Company by telephone, promptly confirmed in
writing (but no later than the next Business Day). In
such event, the Company shall promptly provide the
Trustee with appropriate documentation and
instructions consistent with these procedures for the
return of the Certificated Note to the Trustee and
the Presenting Agent will promptly return such Note
to the Trustee. Upon (i) confirmation from the
Trustee in writing (which may be given by telex or
telecopy) that the Trustee has received such Note and
12
(ii) confirmation from the Presenting Agent in
writing (which may be given by telex or telecopy)
that the Presenting Agent has not received payment
from the purchaser (the matters referred to in
clauses (i) and (ii) are referred to hereinafter as
the "Confirmations"), the Company will promptly pay
to the Presenting Agent an amount in immediately
available funds equal to the amount previously paid
by the Presenting Agent in respect of such
Certificated Note. Assuming receipt of the
Certificated Note by the Trustee and of the
Confirmations by the Company, such payment will be
made on the Closing Date, if reasonably practical,
and in any event not later than the Business Day
following the date of receipt of the Certificated
Note and Confirmations. If a purchaser shall fail to
make payment for the Certificated Note for any reason
other than the failure of the Presenting Agent to
provide the necessary information to the Company as
described above for settlement or to provide a
confirmation to the purchaser within a reasonable
period of time as described above or otherwise to
satisfy its obligation hereunder or in the Agency
Agreement, and if the Presenting Agent shall have
otherwise complied with its obligations hereunder and
in the Agency Agreement, the Company will reimburse
the Presenting Agent on an equitable basis for its
loss of the use of funds during the period when they
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Trustee
will void such Certificated Note, make appropriate
entries in its records and destroy the Certificated
Note; and upon such action, the Certificated Note
will be deemed not to have been issued, authenticated
and delivered.
TRUSTEE NOT TO RISK Nothing herein shall be deemed to require the Trustee
FUNDS: to risk or expend its own funds in connection with
any payment to the Company, the Agents or the
purchaser, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that
funds are provided to the Trustee for such purpose.
13
AUTHENTICITY OF The Company will cause the Trustee to furnish the
SIGNATURES: Agents from time to time with the specimen signatures
of each of the Trustee's officers, employees or
agents who has been authorized by the Trustee to
authenticate Certificated Notes but the Agents will
have no obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or the Trustee on any Certificated Note.
PAYMENT OF EXPENSES: Each Agent shall forward to the Company, on a monthly
basis, a statement of the out-of-pocket expenses
incurred by such Agent during that month which are
reimbursable to it pursuant to the terms of the
Agency Agreement. The Company will remit payment to
the Agents currently on a monthly basis.
PERIODIC STATEMENTS Upon the request of the Company, [name of agent for
FROM [NAME OF AGENT DTC] will send to the Company a statement setting
FOR DTC]: forth the principal amount of Certificated Notes
Outstanding as of that date and setting forth a brief
description of any sales of Certificated Notes of
which the Company has advised [name of agent for DTC]
but which have not yet been settled.
EXHIBIT B
Ryder System, Inc.
Medium-Term Notes
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
[ Date ]
Ryder System, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Subject in all respects to the terms and conditions of the
Selling Agency Agreement (the "Agreement") dated [ ], between [Agent], [Agent],
[Agent] and you, the undersigned agrees to purchase the following Notes of Ryder
System, Inc.:
Aggregate Principal Note:
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Record Dates:
Other Terms of Notes:
Discount: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued interest, if
any, from , ]
Purchase Date and Time:
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in Sections 2(b)
2
or 6(b) or other Sections of the
Agreement:
Period during which additional Notes
may not be sold pursuant to
Section 4(m) of the Agreement:
[Agent]
[Agent]
[Agent]
By:
-------------------------------------
Accepted:
Ryder System, Inc,
By:
--------------------------------
Title: