Exhibit 1(b)
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
$ Medium-Term Notes, Series C
Due From Nine Months to Thirty Years
From Date of Issue
Selling Agency Agreement
December , 1992
--
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, N.Y. 10048
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
North Tower
World Financial Center
New York, N.Y. 10281
Shearson ▇▇▇▇▇▇ Brothers Inc.
American Express Tower
World Financial Center
New York, N.Y. 10285
Dear Sirs:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc., a Virginia corporation
(the "Company"), confirms its agreement with each of you with
respect to the issue and sale by the Company of up to $
aggregate principal amount of its Medium-Term Notes, Series C,
Due from Nine Months to Thirty Years from Date of Issue (the
"Notes"). The Notes will be issued under an indenture dated as
of August 1, 1990, as supplemented and amended by the First
Supplemental Indenture dated as of February 1, 1991 and the
Second Supplemental Indenture dated as of January 21, 1992 (as
the same may be further amended or supplemented from time to
time, the "Indenture"), between the Company and Chemical Bank, as
trustee (the "Trustee"). The Notes will be issued in minimum
denominations of $100,000 and in denominations exceeding such
amount by integral multiples of $1,000, or, in the case of Notes
denominated in a currency other than U.S. dollars, in the
denominations set forth in the applicable Pricing Supplement (as
defined below), will be issued only in fully registered form and
will have the annual interest rates, maturities and, if
appropriate, other terms set forth in a supplement to the
prospectus referred to below. The Notes will be issued, and the
terms thereof established, in accordance with the Indenture and,
in the case of Notes sold pursuant to Section 2(a), 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 (including
▇▇▇▇▇▇ Special Securities Inc. acting from time to time on its
own behalf or on behalf of Shearson ▇▇▇▇▇▇ Brothers Inc.) 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 (including
▇▇▇▇▇▇ Special Securities Inc. acting from time to time on its
own behalf or on behalf of Shearson ▇▇▇▇▇▇ Brothers Inc.) acting
solely as principal pursuant to Section 2(b) and not as agent,
and the term "you" shall refer to you collectively whether at any
time any of you is acting in both such capacities or in either
such capacity; provided, however, that from time-to-time pursuant
to Section 2(a), an agent other than you may be selected as an
agent for purposes of the Company accepting an offer to purchase
Notes and such other agent, for purposes of such transaction, may
be considered an Agent or Purchaser for purposes of this
Agreement.
1. Representations and Warranties. The Company
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represents and warrants to, and agrees with, 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 Form S-3 (File
Number: 33-48973) and a registration statement on Form S-3
(File Number: 33- ), including a basic prospectus, each
of which registration statements has become effective, for
the registration under the Act of $427,700,000 and
$3,000,000,000, respectively, aggregate principal amount of
debt securities (the "Securities"), including the Notes.
Such registration statement (File Number: 33-48973) and such
registration statement (File Number: 33- ), each
including incorporated documents, exhibits and financial
statements and each as amended at the Execution Time (as
defined below), are hereinafter referred to as the "Initial
Registration Statement" and the "Last Registration
Statement", respectively, and singly as a "Registration
Statement" and collectively as the "Registration
Statements". Each Registration Statement, as amended at 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 will file
with the Commission pursuant to the applicable paragraph of
Rule 424(b) under the Act a supplement to the form of
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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
specifying the interest rates, maturity dates and, if
appropriate, other 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 any Terms Agreement (as
defined by Section 2(b)) and at the date of delivery by the
Company of any Notes sold hereunder (a "Closing Date"), (i)
the Registration Statements, 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") and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective
rules thereunder; (ii) the Registration Statements, 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,
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that the Company makes no representations or warranties as
to (i) those parts of the Registration Statements 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 Statements or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of
you specifically for use in connection with the preparation
of the Registration Statements or the Prospectus (or any
supplement thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term the
"Effective Date" shall mean with respect to each
Registration Statement each date that each such 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 Last Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic
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Prospectus as supplemented by the Prospectus Supplement.
"Rule 415" and "Rule 424" refer to such rules under the Act.
Any reference herein to the Registration Statements, 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 each 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 Statements,
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 each 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. Notwithstanding anything
to the contrary set forth herein, at such time as the
Company shall have determined and certified to the Agents
that all Securities registered under the Initial
Registration Statement or the Last Registration Statement
have been issued, references to "each Registration
Statement", either "Registration Statement" or "the
Registration Statements" herein shall mean either of the
Initial Registration Statement or the Last Registration
Statement under which Securities remain to be issued.
2. Appointment of Agents; Solicitation by the Agents
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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 best 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.
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
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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;
provided, however, that so long as this Agreement is in effect
-------- -------
the Company shall not solicit offers to purchase Notes through
any agent other than an Agent. The Company may accept an offer
to purchase Notes through an agent other than an Agent, provided
--------
that (i) the Company did not solicit such offer, (ii) any
agreement with respect to such purchase will have terms and
conditions (including, without limitation, commission rates) with
respect to such purchase identical to the terms and conditions
that would apply to such purchase under this Agreement if such
agent was an Agent (which may be accomplished by incorporating by
reference in such agreement the terms and conditions of this
Agreement in a form similar to Exhibit C hereto), (iii) such
agreement shall not provide for further offers or purchases and
(iv) the Company shall notify the Agents promptly after the
execution of such agreement and shall provide the Agents with a
copy of such agreement promptly following such purchase.
(b) Subject to the terms and conditions stated herein,
whenever the Company and one of you determines that the Company
shall sell Notes directly to you as Purchaser, each such sale of
Notes shall be made in accordance with the terms of this
Agreement and any supplemental agreement relating thereto between
the Company and the Purchaser. Each such supplemental agreement
(which shall be substantially in the form of Exhibit B) is herein
referred to as a "Terms Agreement". The Purchaser's commitment
to purchase Notes pursuant to any Terms Agreement shall be deemed
to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject
to the terms and conditions herein set forth. Each Terms
Agreement shall describe the Notes to be purchased by the
Purchaser pursuant thereto, specify the principal amount of such
Notes, the maturity date, the price to be paid to the Company for
such Notes, the currency in which principal and interest is
payable if other than United States dollars, the rate at which
interest will be paid on the Notes, the Closing Date for such
Notes, the place of delivery of the Notes and payment therefor,
the method of payment and any modification of the requirements
for the delivery of the opinions of counsel, the certificates
from the Company or its officers, and the letter from the
Company's independent public accountants, pursuant to Section
6(b). Such Terms Agreement shall also specify the period of time
referred to in Section 4(1).
Delivery of the certificates for Notes sold to the
Purchaser pursuant to any Terms Agreement shall be made as agreed
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to between the Company and the Purchaser as set forth in the
respective Terms Agreement, not later than the Closing Date set
forth 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 respective Terms
Agreement.
3. Offering and Sale of Notes. 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 you that:
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(a) Prior to the termination of the offering of the
Notes, the Company will not file any amendment to either
Registration Statement or any supplement to the Prospectus
(except for 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 will not file any such proposed amendment or supplement
to which any of you reasonably objects. Subject to the
foregoing sentence, the Company will cause each supplement
to the Prospectus to be filed with the Commission pursuant
to the 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,
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 either Registration Statement
shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of either
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
either Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order 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 either Registration
Statement or to supplement the Prospectus to comply with the
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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 cease 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 (f)
of this Section 4 in connection with the preparation or
filing of such amendment or supplement are 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 either Registration
Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder.
(c) 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.
(d) The Company will furnish to each of you and your
counsel, without charge, copies of each 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.
(e) The Company will arrange for the qualification of
the Notes for sale under the laws of such jurisdictions as
any of you may designate, will maintain such qualifications
in effect so long as required for the distribution of the
Notes, and will arrange for the determination of the
legality of the Notes for purchase by investors.
(f) The Company shall furnish to each of you such
information, 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 Statements, 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.
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(g) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the
performance of its obligations under this Agreement,
including the fees and disbursements of its accountants and
counsel, the cost of printing or other production and
delivery of the Registration Statements, 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 fees and disbursements, including
fees of counsel, incurred in compliance with Section 4(e),
the fees and disbursements of the Trustee, the Exchange Rate
Agent and the Calculation Agent and the fees of any agency
that rates the Notes and (ii) pay the reasonable fees and
expenses of your counsel incurred in connection with this
Agreement.
(h) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be a reconfirmation to you
of the representations and warranties of the Company in
Section 1(b).
(i) Each time that either Registration Statement or
the Prospectus is amended or supplemented (other than by an
amendment or supplement relating to any offering of
Securities other than the Notes or providing solely for the
specification of or a change in the maturity dates, the
interest rates, the issuance prices or other similar terms
of any Notes sold pursuant hereto), 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 or the President or 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(e) but modified to relate to the
last day of the fiscal quarter for which financial
statements of the Company were last filed with the
Commission and to the Registration Statements and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such
supplement.
(j) Each time that either 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 or other similar terms
of any Notes sold pursuant hereto or (iii) setting forth or
incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the
case of clause (iii) above, in the reasonable judgment of
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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 satisfactory to each of you, dated
the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form satisfactory to
each of you, of the same tenor as the opinion referred to in
Section 5(b) but modified to relate to the Registration
Statements 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 Statements 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 either Registration Statement or
the Prospectus is amended or supplemented to set forth
amended or supplemental financial information, the Company
shall cause 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 satisfactory to each of you, of the
same tenor as the letter referred to in Section 5(f) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated
by reference in the Registration Statements and the
Prospectus, as amended or supplemented to the date of such
letter; provided, however, that, if either 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, the Company's
independent public accountants may limit the scope of such
letter, which shall be 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 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 or
changes in specified financial statement line items.
(l) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent
of the Purchaser thereunder, issue or announce the proposed
issuance of any of its debt securities, including Notes, in
the United States, (i) (A) in the case of a Terms Agreement
relating to Notes with a maturity of ten years or less,
having a maturity of less than 20 years, or (B) in the case
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of a Terms Agreement relating to Notes having a maturity of
greater than ten years, having a maturity of greater than
five years, and (ii) denominated in the same currency or
currency unit as specified in the applicable Terms
Agreement.
5. Conditions to the Obligations of the Agents. The
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obligations of each Agent to solicit offers to purchase the Notes
shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the
Execution Time, on the Effective Date, when any supplement to the
Prospectus is filed with the Commission and as of each Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(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 Statements 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
an existing corporation in good standing under the laws
of the Commonwealth of Virginia, with corporate power
and authority to own its properties and conduct its
business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions
in which it owns or leases substantial properties or in
which the conduct of its business requires such
qualification and in which the failure to so qualify
would have a material adverse effect on the Company;
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇
International Inc. and Kraft General Foods, Inc. have
been duly incorporated and are existing corporations in
good standing under the laws of their respective
jurisdictions of incorporation, with corporate power
and authority to own their respective properties and
conduct their respective businesses as described in the
Prospectus; all outstanding shares of capital stock of
▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇ International
Inc. and Kraft General Foods, Inc. are owned by the
Company, free and clear of any lien, pledge and
encumbrance or claim of any third party;
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(iii) the Company's authorized equity
capitalization is as set forth 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 by the Company, has been duly
qualified under the Trust Indenture Act, and
constitutes a valid and legally binding instrument
enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws
of general applicability relating to or affecting
creditors' rights and to general equity principles; 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 valid and legally
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 Statements 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 Statements
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 Statements have become
effective under the Act; any required filing of the
Prospectus, and any supplements thereto, 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 Statements has been
issued, no proceedings for that purpose have been
instituted or threatened, and the Registration
Statements and the Prospectus (other than the financial
statements and other financial and statistical
information contained therein as to which such counsel
need express no opinion) comply as to form in all
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material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe
that either 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 its 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; and
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statements.
In rendering such opinion, such counsel may state that (1)
in clause (iv) with respect to the validity and
enforceability of the Indenture and the Notes, and in clause
(viii) and in clause (ix) such counsel has assumed that
under the laws of any country in whose currency any Notes
are denominated, if other than in U.S. dollars, that no
consent, approval, authorization, or order of, or filing
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with any governmental agency, body or court is required for
the consummation of the transactions contemplated hereunder
in connection with the issuance and sale of the Notes and
compliance with the terms and provisions thereof will not
result in any breach or violation of any of the terms and
provisions in any statute, rule, regulation or order of any
governmental agency or body or any court, and (2) in clause
(iv) with respect to the enforceability of the Indenture, no
opinion is expressed with respect to Section 516 thereof.
Such counsel may note that (i) a New York statute provides
that with respect to a foreign currency obligation a court
of the State of New York shall render a judgment or decree
in such foreign currency and such judgment or decree shall
be converted into currency of the United States at the rate
of exchange prevailing on the date of entry of such judgment
or decree and (ii) with respect to a foreign currency
obligation a United States Federal court in New York may
award judgment in United States dollars, provided that such
counsel expresses no opinion as to the rate of exchange such
court would apply. In rendering such opinion, such counsel
may rely (A) as to matters involving the application of laws
of any jurisdiction other than the States of New York or
Delaware, the Commonwealth of Virginia 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 satisfactory to counsel for the
Agent and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus
in this paragraph (b) include any supplements thereto at the
date such opinion is rendered.
(c) The Company shall have furnished to each Agent the
opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special tax counsel
for the Company, dated the Execution Time, confirming their
opinion contained under the heading "Certain United States
Federal Income Tax Consequences" in the Prospectus
Supplement and the accuracy in all material respects of all
other statements contained under the heading "Certain United
States Federal Income Tax Consequences".
(d) Each Agent shall have received from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Agents, such opinion or
opinions, dated the date hereof, with respect to the
issuance and sale of the Notes, the Indenture, the
Registration Statements, the Prospectus (together with any
supplement thereto) and other related matters as the Agents
may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chairman of the
Board or the President or Vice President and the principal
13
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
Statements, the Prospectus, any supplement to the Prospectus
and this Agreement and that:
(i) the representations and warranties 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 complied with all the agreements and
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 either 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 (exclusive of any
supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Company and its
subsidiaries, whether or not arising from transactions
in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(f) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall
have furnished to each Agent a letter or letters (which may
refer to letters previously delivered to the Agent), dated
as of the Execution Time, in form and substance satisfactory
to the Agents, confirming that they are independent
accountants within the meaning of the Act and the respective
applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion, the financial statements
and schedules examined by them and included in
the Registration Statements and the Prospectus relating
to the Notes 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 any interim
unaudited consolidated financial statements of the
Company included in the Prospectus, inquiries of
officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused
them to believe that the unaudited financial
14
statements, if any, of the Company included in the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements of
the Exchange Act as it applies to Quarterly Reports on
Form 10-Q and the related published rules and
regulations or are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the latest
audited consolidated financial statements of the
Company included in the Prospectus, except as otherwise
specified with respect to consistency in such letter;
(iii) on the basis of a reading of the latest
available interim financial statements of the Company,
inquiries of officials of the Company who have
responsibility for financial and accounting matters and
other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited capsule information of the
Company and its subsidiaries, if any, included in
the Prospectus does not agree with the amounts set
forth in the unaudited consolidated financial
statements of the Company from which it was
derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of the Company
included in the Prospectus;
(B) at the date of the latest available
consolidated balance sheet of the Company read by
such accountants, or at a subsequent specified
date not more than five business days prior to the
date of the letter, there was any decrease in the
outstanding common stock or consolidated earnings
reinvested in the business of the Company other
than any decrease resulting from the declaration
of regular quarterly cash dividends, or any
issuance or assumption of long-term debt by the
Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇
International Inc., Kraft General Foods, Inc. or
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Corporation or, at the date
of the latest available consolidated balance sheet
of the Company read by such accountants, there was
any decrease in consolidated net current assets or
net assets, as compared with amounts shown on or
included in the latest balance sheet of the
Company included in the Prospectus; or
(C) for the period from the date of the
latest consolidated income statement of the
15
Company included in the Prospectus to the date of
the latest available consolidated income statement
of the Company read by such accountants there were
any decreases, as compared with the corresponding
period of the previous year in consolidated
operating revenues, operating income, net earnings
or the historical ratio of earnings to fixed
charges of the Company and consolidated
subsidiaries;
except in all cases set forth in clauses (B) and (C) above
for issuances or assumptions or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter;
(iv) on the basis of a reading of any unaudited
pro forma condensed combined financial statements of
the Company included in the Prospectus, inquiries of
officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused
them to believe that the unaudited pro forma condensed
combined financial statements included in the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and that the pro forma
reclassifications and adjustments have not been
properly applied to the historical amounts in the
compilation of those statements; and
(v) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and
other financial information contained in the Prospectus
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived
from the general accounting records of the Company and
its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly
from such records by analysis or computation) with the
results obtained from inquiries, a reading of such
general accounting records and other procedures
specified in such letter and have found such dollar
amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
References to the Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
All financial statements and schedules included in
material incorporated by reference into the Prospectus shall
16
be deemed included in the Prospectus for purposes of this
subsection.
(g) At the Execution Time, each Agent shall have
received, so long as financial statements examined by any
independent accountants for or with respect to any entity
acquired by the Company are included in the Prospectus, a
letter or letters of such accountants (which may refer to
letters previously delivered to the Agent), dated as of the
Execution Time, in form and substance satisfactory to the
Agents, confirming that as of a specified date immediately
prior to such acquisition and during the period covered by
the financial statements on which they reported, they were
independent accountants with respect to such entity within
the meaning of the Act and the respective applicable
published rules and regulations thereunder and stating in
effect that:
(i) in their opinion, the consolidated financial
statements examined by them and included in the
Registration Statements and the Prospectus comply in
form in all material respects with the applicable
accounting requirements of the Act and the related
published rules and regulations with respect to
registration statements on Form S-3; and
(ii) on the basis of specified procedures, nothing
came to their attention that caused them to believe
that the unaudited financial statements of such entity
at any date and for any period ending on or prior to
the date of the latest unaudited balance sheet of such
entity included or incorporated in the Prospectus do
not comply in form in all material respects with the
applicable accounting requirements of the Act and the
related published rules and regulations or are not
stated on a basis substantially consistent with that of
the latest annual financial statements of such entity
examined by such independent accountants included in
the Prospectus.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be
deemed included in the Prospectus for purposes of this
subsection.
References to the Prospectus in this paragraph (g)
include any supplement thereto at the date of the letter.
(h) 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.
17
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects 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 such Agents and its counsel, this Agreement and
all obligations of any Agent hereunder may be cancelled at any
time by the Agents. Notice of such cancellation shall be given
to the Company in writing or by telephone or telecopier confirmed
in writing.
The documents required to be delivered by this Section
5 shall be delivered at the office of Hunton & ▇▇▇▇▇▇▇▇, counsel
for the Company, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, 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 of the representations and warranties on
the part of the Company herein as of the date of any related
Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statements shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) If specified by any related 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(e) (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 of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Company, dated
as of the Closing Date, to the effect set forth in Section
5(b), (iii) if required, the opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, special tax counsel for the Company, to the effect
set forth in Section 5(c), (iv) the opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Purchaser, dated as of
the Closing Date, to the effect set forth in Section 5(d),
(iv) the letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, independent
accountants for the Company, dated as of the Closing Date,
to the effect set forth in Section 5(f), and (v) so long as
financial statements examined by any independent accountants
for any entity acquired by the Company are included in the
Prospectus, the letter of such accountants, dated as of the
Closing Date, to the effect set forth in Section 5(g).
18
(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 in all material respects when and
as provided in this Agreement and any Terms Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in
this Agreement or such Terms Agreement 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 cancelled at, or at any time prior
to, the respective Closing Date by the Purchaser. Notice of such
cancellation shall be given to the Company in writing or by
telephone or telecopier confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
---------------------------------------------------
Purchase. The Company agrees that any person who has agreed to
--------
purchase and pay for any Note, including a 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,
at the Closing Date therefor, either (a) any condition set forth
in Section 5 or 6, as applicable, shall not be satisfied or
(b) 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 shall have occurred the effect of which is, in the
judgment of the Purchaser or the Agent which presented the offer
to purchase such Note, as applicable, so material and adverse as
to make it impractical or inadvisable to proceed with the
delivery of such Note.
8. Indemnification and Contribution. (a) The Company
--------------------------------
agrees to indemnify and hold harmless 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, 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 for the
registration of the Securities 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 each such indemnified party, as incurred, for
19
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 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 lia-
bility 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.
(b) Each of you agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who
signs the Registration Statements 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 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 statements set forth in the last
paragraph of the cover page, and under the heading "Plan of
Distribution", of the Prospectus Supplement constitute the only
information furnished in writing by any of you for inclusion in
the documents referred to in the foregoing indemnity, and you
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
will not relieve it from any liability which it may have to any
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
20
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,
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 or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; 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).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in paragraph (a) of this Section 8 is due in
accordance with its terms but is for any reason held by a court
to be unavailable from the Company on grounds of policy or
otherwise, the Company and each of you shall contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and any of
you may be subject in such proportion so that each of you is
responsible for that portion represented by the percentage that
the aggregate commissions received by such of you pursuant to
Section 2 in connection with the Notes from which such losses,
claims, damages and liabilities 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
21
had been payable), bears to the aggregate principal amount of
such Notes sold and the Company is responsible for the balance;
provided, however, that (y) 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, claims, damages and liabilities 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) and (z) 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 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 either Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to
clause (z) 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 any
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 the fourth paragraph of Section 2(a), Section 4(g),
Section 8 and Section 10.
(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
Notes to be purchased thereunder, if prior to such time (i)
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, (ii) a banking moratorium shall
22
have been declared either by Federal or New York State
authorities, or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets or the United States
is such as to make it, in the judgment of the Purchaser,
impracticable to market such Notes.
10. Representations and Indemnities to Survive. 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 officers, directors
or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of
Sections 4(g) and 8 hereof shall survive the termination or
cancellation of this Agreement.
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 telecopied 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 telecopied
and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Assistant Secretary.
12. Successors. This Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no other
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.
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,
▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.
By:
-------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
SALOMON BROTHERS INC
By:
--------------------------
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
By:
--------------------------
SHEARSON ▇▇▇▇▇▇ BROTHERS INC.
By:
--------------------------
24
SCHEDULE I
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:
Maturity Commission Rate
-------- as a % of Principal
Amount
-------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years up to and including 30 years .750%
Address for Notice to you:
Notices to Salomon Brothers Inc shall be directed to it
at Seven World Trade Center, New York, New York 10048, Attention
of the Medium Term Note Department.
Notices to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. shall be directed to it
at ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, North Tower - World
Financial Center, New York, New York, 10281 Attention of ▇▇▇▇ ▇.
▇▇▇▇▇ - MTN Product Management.
Notices to Shearson ▇▇▇▇▇▇ Brothers Inc. shall be
directed to it at American Express Tower, 9th Floor, World
Financial Center, New York, New York 10285, Attention of Medium
Term Note Department.
EXHIBIT A
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
MEDIUM-TERM NOTES, SERIES C, ADMINISTRATIVE PROCEDURES
-------------
December , 1992
--
The administrative procedures and specific terms of the
offering of Medium-Term Notes, Series C (the "Notes"), on a
continuous basis by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. ("the Company")
pursuant to the Selling Agency Agreement, dated as of December
,1992 (the "Agency Agreement") between the Company and Salomon
--
Brothers Inc, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, and Shearson ▇▇▇▇▇▇ Brothers Inc.
(including its wholly owned subsidiary, ▇▇▇▇▇▇ Special Securities
Inc., acting on its own behalf or on behalf of Shearson ▇▇▇▇▇▇
Brothers Inc.) (each an "Agent") are explained below. In the
Agency Agreement, the Agents have agreed to use their best
efforts to solicit purchases of the Notes. Each Agent, as
principal, may purchase Notes for its own account pursuant to the
terms and settlement details of a terms agreement entered into
between the Company and such Agent, as contemplated by the Agency
Agreement between them.
Each Note will be issued under an indenture dated as of
August 1, 1990, as supplemented and amended by the First
Supplemental Indenture dated as of February 1, 1991 and the
Second Supplemental Indenture dated as of January 21, 1992 (as
the same may be further amended or supplemented from time to
time, the "Indenture"), between the Company and Chemical Bank
("CB"), as trustee (the "Trustee"). Notes will bear interest at
either fixed rates ("Fixed Rate Notes") or floating rates
("Floating Rate Notes"). Each Note will be represented by either
a Global Security (as defined hereinafter) delivered to CB, as
agent for the Depository Trust Company ("DTC"), and recorded in
the book-entry system maintained by DTC ("a Book-Entry Note") or
a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). An owner of a
Book-Entry Note will not be entitled to receive a certificate
representing such a Note.
CB will act as Paying Agent for the payment of
principal of and premium, if any, and interest on the Notes and
will perform, as Paying Agent, unless otherwise specified, the
other duties specified herein. Book-Entry Notes will be issued
in accordance with the administrative procedures set forth in
Part I hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part
II hereof. Unless otherwise defined herein, terms defined in the
Indenture shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES.
In connection with the qualification of the Book-Entry
Notes for eligibility in the book-entry system maintained by DTC,
CB will perform the custodial, document control and
administrative functions described below, in accordance with its
respective obligations under a Letter of Representation from the
Company and CB to DTC and a Medium-Term Note Certificate
Agreement between CB and DTC, each dated as of the date hereof,
and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined
under "Settlement" below) for one or more
Book-Entry Notes, the Company will issue
a single global security in fully
registered form without coupons (a
"Global Security") representing up to
$100,000,000 principal amount of all such
Notes that have the same Stated Maturity,
redemption provisions, repayment
provisions, Interest Payment Dates,
Interest Payment Period and, Original
Issue Date, Original Issue Discount
Provisions, 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, minimum
interest rate (if any), and maximum
interest rate (if any) (collectively
"Terms"). Each Global Security will be
dated and issued as of the date of its
authentication by CB. Each Global
Security will bear an "Interest Accrual
Date", which will be (i) with respect to
an original Global Security (or any
portion thereof), its original issuance
date, and (ii) with respect to any Global
Security (or any portion thereof) issued
subsequently upon exchange of a Global
Security or in lieu of a destroyed, lost
or stolen Global Security, the most
recent Interest Payment Date to which
interest has been paid or duly provided
for on the predecessor Global Security or
Securities (or if no such payment or
provision has been made, the original
2
issuance date of the predecessor Global
Security), regardless of the date of
authentication of such subsequently
issued Global Security. Book-Entry Notes
may only be denominated and payable in
U.S. dollars. No Global Security will
represent any Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of one series of
CUSIP numbers (including tranche
numbers), which series consists of
approximately 900 CUSIP numbers and
relates to Global Securities representing
the Book-Entry Notes. CB and the Company
has obtained from the CUSIP Service
Bureau a written list of such series of
reserved CUSIP numbers and has delivered
to the Company and DTC such written list
of 900 CUSIP numbers of such series. The
Company will assign CUSIP numbers to
Global Securities as described below
under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers that
the Company has assigned to Global
Securities. At any time when fewer than
100 of the reserved CUSIP numbers of the
series remain unassigned to Global
Securities, and if it deems necessary,
the Company will reserve additional CUSIP
numbers for assignment to Global
Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list
of such additional CUSIP numbers to CB
and DTC.
Registration: Each Global Security will be registered
in the name of Cede & Co., as nominee for
DTC, on the Security Register maintained
under the Indenture. The beneficial
owner of a Book-Entry Note (or one or
more indirect participants in DTC
designated by such owner) will designate
one or more participants in DTC (with
respect to such Note, the "Participants")
to act as agent or agents for such owner
in connection with the book-entry system
3
maintained by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such beneficial owner in such
Note in the account of such Participants.
The ownership interest of such beneficial
owner in such Note will be recorded
through the records of such Participants
or through the separate records of such
Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accompanied by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferrers and transferees
of such Note.
Exchanges: CB may deliver to DTC and the CUSIP
Service Bureau at any time a written
notice of consolidation specifying (i)
the CUSIP numbers of two or more
Outstanding Global Securities that
represent Book-Entry Notes having the
same Terms and for which interest has
been paid to the same date, (ii) a date,
occurring at least thirty days after such
written notice is delivered and at least
thirty days before the next Interest
Payment Date for such Book-Entry Notes,
on which such Global Securities shall be
exchanged for a single replacement Global
Security and (iii) a new CUSIP number,
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 CB) a
written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, CB will deliver to the
CUSIP Service Bureau a written notice
setting forth such exchange date and the
new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of
the Global Securities to be exchanged
will no longer be valid. On the
specified exchange date, CB will exchange
such Global Securities for a single
4
Global Security bearing the new CUSIP
number and a new Interest Accrual Date,
and the CUSIP numbers of the exchanged
Global Securities will, in accordance
with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed
$100,000,000 in aggregate principal
amount, one Global Security will be
authenticated and issued to represent
each $100,000,000 of principal amount of
the exchanged Global Security and an
additional Global Security will be
authenticated and issued to represent any
remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a
date not less than nine months nor more
than 30 years after the settlement date
for such Note.
Notice of CB will notify DTC 60 days prior to each
Repayment Dates: Repayment Date (as defined in the Note),
if any, with respect to a Note of the
CUSIP number of such Note, the Repayment
Date, the Repayment Price and the
exercise period.
Denominations: Book-Entry Notes will be issued in
principal amounts of $100,000 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
$100,000,000. If one or more Book-Entry
Notes having an aggregate principal
amount in excess of $100,000,000 would,
but not for the preceding sentence, be
represented by a single Global Security,
then one Global Security will be issued
to represent each $100,000,000 principal
amount of such Book-Entry Note or Notes
and an additional Global Security will be
issued to represent any remaining
principal amount of such Book-Entry Note
or Notes. In such a case, each of the
Global Securities representing such Book-
Entry Note or Notes shall be assigned the
same CUSIP number.
5
Interest: General. Interest on each Book-Entry
-------
Note will accrue from the Interest
Accrual Date of the Global Security
representing such Note. Each payment of
interest on a Book-Entry Note will
include interest accrued to but excluding
the Interest Payment Date (provided that
in the case of Floating Rate Notes which
reset daily or weekly interest payments
will include interest accrued to and
including the Regular Record Date
immediately preceding the Interest
Payment Date) or Maturity (other than a
Maturity of a Fixed Rate Book-Entry Note
occurring on the thirty-first day of a
month, in which case such payment will
include interest accruing to but
excluding only the thirtieth day of such
month). Interest payable at the Maturity
of a Book-Entry Note will be payable to
the Person to whom the principal of such
Note is payable. Standard & Poor's
Corporation will use the information
received in the pending deposit message
described under Settlement Procedure "C"
below in order to include the amount of
any interest payable and certain other
information regarding the related Global
Security in the appropriate weekly bond
report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record
--------------------
Date with respect to any Interest Payment
Date shall be the date fifteen calendar
days immediately preceding such Interest
Payment Date.
Fixed Rate Book-Entry Notes. Unless
---------------------------
otherwise specified pursuant to
Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes
will be made semiannually on June 1 and
December 1 of each year and at Maturity;
provided, however, that in the case of a
-------- -------
Fixed Rate Book-Entry Note issued between
a Regular Record Date and an Interest
Payment Date or on an Interest Payment
Date, the first interest payment will be
made on the Interest Payment Date
following the next succeeding Regular
Record Date.
6
Floating Rate Book-Entry Notes. Interest
------------------------------
payments will be made on Floating Rate
Book-Entry Notes monthly, quarterly,
semi-annually or annually. Unless
otherwise agreed upon, 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 Floating Rate
Book-Entry Notes would otherwise be a day
that is not a Business Day with respect
to such Floating Rate Book-Entry Notes,
such Interest Payment Date will be the
next succeeding Business Day with respect
to such Floating Rate Book-Entry Notes,
except in the case of a LIBOR Note if
such Business Day is in the next
succeeding calendar month, in which event
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 Regular Record Date and an
Interest Payment Date or on an Interest
Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular
Record Date.
Notice of Interest Payment and Regular
--------------------------------------
Record Dates. On the first Business Day
------------
of January, April, July and October of
each year, CB will deliver to the Company
and DTC a written list of Regular Record
Dates and Interest Payment Dates that
will occur with respect to Book-Entry
Notes during the six-month period
beginning on such first Business Day.
Promptly after each Interest
Determination Date for Floating Rate
Notes, CB as Calculation Agent will
7
notify Standard & Poor's Corporation of
the interest rates determined on such
Interest Determination Date.
Calculation of Fixed Rate Book-Entry Notes. Interest on
Interest: ---------------------------
Fixed Rate Book-Entry Notes (including
interest for partial periods) will be
calculated on the basis of a year of
twelve thirty-day months. (Examples of
interest calculations are as follows:
The period from August 15, 1988, to
February 15, 1989, equals 6 months and O
days, or 180 days; the interest payable
equals 180/360 times the annual rate of
interest times the principal amount of
the Note. The period from September 17,
1988, to February 15, 1989, equals 4
months and 28 days, or 148 days; the
interest payable equals 148/360 times the
annual rate of interest times the
principal amount of the Note.)
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 will be calculated on
the basis of actual days elapsed and a
year of 360 days except that in the case
of Treasury Rate Notes, interest will be
calculated on the basis of the actual
number of days in the year.
Payments of Payment of Interest Only. Promptly after
Principal and ------------------------
Interest: each Regular Record Date, CB will deliver
to the Company and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Global
Security on the following Interest
Payment Date (other than an Interest
Payment Date coinciding with Maturity)
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 daily bond reports
published by Standard & Poor's
Corporation. The Company will pay to CB,
as Paying Agent, the total amount of
interest due on such Interest Payment
Date (other than at Maturity), and CB
will pay such amount to DTC at the times
and in the manner set forth below under
8
"Manner of Payment." If any Interest
Payment Date for a Book-Entry Note is not
a Business Day, the payment due on such
day shall be made on the next succeeding
Business Day and no interest shall accrue
on such payment for the period from and
after such Interest Payment Date.
Payments at Maturity. On or about the
--------------------
first Business Day of each month, CB will
deliver to the Company and DTC a written
list of principal and interest to be paid
on each Global Security maturing either
at Stated Maturity or on a Redemption or
Repayment Date in the following month.
The Company and DTC will confirm the
amounts of such principal and interest
payments with respect to each such Global
Security on or about the fifth Business
Day preceding the Maturity of such Global
Security. The Company will pay to CB, as
the paying agent, the principal amount of
such Global Security, together with
interest due at such Maturity. CB will
pay such amounts to DTC at the times and
in the manner set forth below under
"Manner of Payment." If any Maturity of
a Global Security representing Book-Entry
Notes is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and no interest
shall accrue on such payment for the
period from and after such Maturity.
Promptly after payment to DTC of the
principal and interest due at the
Maturity of such Global Security, CB will
cancel such Global Security in accordance
with the terms of the Indenture and
deliver it to the Company with a
certificate of cancellation.
Manner of Payment. The total amount of
-----------------
any principal and interest due on Global
Securities on any Interest Payment Date
or at Maturity shall be paid by the
Company to CB in funds available for use
by CB as of 9:30 A.M. (New York City
time) on such date. The Company will
make such payment on such Global
Securities by wire transfer to CB. The
Company will confirm such instructions in
writing to CB. Prior to 10 A.M. (New
9
York City time) on each Maturity Date or
as soon as possible thereafter, CB will
pay by separate wire transfer (using
Fedwire message entry instructions in a
form previously specified by DTC) to an
account at the Federal Reserve Bank of
New York previously specified by DTC, in
funds available for immediate use by DTC,
each payment of interest or principal
(together with interest thereon) due on
Global Securities on any Maturity Date.
On each Interest Payment Date, interest
payment shall be made to DTC in same day
funds in accordance with existing
arrangements between CB and DTC.
Thereafter on each such date, DTC will
pay, in accordance with its SDFS
operating procedures then in effect, such
amounts in funds available for immediate
use to the respective Participants in
whose names the Book-Entry Notes
represented by such Global Securities are
recorded in the book-entry system
maintained by DTC. Neither the Company
(either as issuer or as Paying Agent) nor
CB 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 Agent will discuss
Setting and from time to time the aggregate principal
Posting: amount of, the issuance price of, and the
interest rates to be borne by, Book-Entry
Notes that may be sold as a result of the
solicitation of orders by the Agent. If
the Company decides to set prices of, and
rates borne by, any Book-Entry Notes in
respect of which the Agent is to solicit
orders (the setting of such prices and
rates to be referred to herein as
"posting") or if the Company decides to
10
change prices or rates previously posted
by it, it will promptly advise the Agent
of the prices and rates to be posted.
Acceptance and Rejection of Offers:
Unless otherwise instructed by the
Company, each Agent will advise the
Company promptly by telephone of all
offers to purchase Book-Entry Notes
received by such Agent. Unless otherwise
agreed by the Company and each of the
Agents, the Company has the sole right to
accept offers to purchase Book-Entry
Notes and may reject any such offer in
whole or in part.
Preparation of If any order to purchase a Book Entry
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the terms of such
Note and will arrange to file with the
Commission (via ▇▇▇▇▇) in accordance with
the applicable paragraph of Rule 424(b)
under the Act. The Agent will cause a
Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing
Supplement is prepared, the Agent will
affix the Pricing Supplement to
Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached
(other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-
Entry Note and the authentication and
issuance of the Global Security
representing such Note shall constitute
"settlement" with respect to such Note.
All orders accepted by the Company will
be settled on the fifth Business Day
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.
11
Settlement Settlement Procedures with regard to each
Procedures: Book-Entry Note sold by the Company
through an Agent, as agent, shall be as
follows:
▇. ▇▇▇▇ Agent will advise the
Company by telephone of the
following settlement information:
1. Principal amount.
2. Stated Maturity.
3. In the case of a Fixed Rate Book-
Entry Note, the interest rate, or
in the case of Floating Rate
Book-Entry 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).
4. Interest Payment Period and
Interest Payment Dates.
5. Redemption provisions, if any.
6. Repayment provisions, if any.
7. Settlement date.
8. Price.
9. Agent's commission, determined as
provided in Section 2 of the
Agency Agreement between the
Company and such Agent.
10. Whether the Note is an Original
Issue Discount Note, and if it is
an Original Issue Discount Note,
the total amount of OID, the
yield to maturity and the initial
accrual period OID.
B. The Company will assign a CUSIP
number to the Global Security
representing such Note and then
advise CB by telephone or
12
electronic transmission
(confirmed in writing at any time
on the same date) of the
information set forth in
Settlement Procedure "A" above,
such CUSIP number and the name of
such Agent. The Company will
also notify the Agent of such
CUSIP number by telephone as soon
as practicable. Each such
communication by the Company
shall constitute a representation
and warranty by the Company to CB
and each Agent that (i) such Note
is then, and at the time of
issuance and sale thereof will
be, duly authorized for issuance
and sale by the Company, (ii)
such Note, and the Global
Security representing such Note,
will conform with the terms of
the Indenture pursuant to which
such Note and Global Security are
issued and (iii) upon
authentication and delivery of
such Global Security, the
aggregate initial offering price
of all Notes and Euro Medium-Term
Notes, Series C issued under the
Indenture will not exceed $
or the equivalent thereof in one
or more currencies (except for
Securities represented by,
authenticated and delivered in
exchange for or in lieu of
Securities pursuant to Section
304, 305, 306, 906 or 1107 of the
Indenture).
C. CB will enter a pending deposit
message through DTC's Participant
Terminal System, providing the
following settlement information
to DTC, such Agent and Standard &
Poor's Corporation:
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.
13
3. Initial Interest Payment Date for
such Note, number of days by
which such date succeeds the
related Record Date (which, in
the case of Floating Rate Notes
which re-set daily or weekly,
shall be the date five calendar
days immediately preceding the
applicable Interest Payment Date
and in the case of all other
Notes shall be the Regular Record
Date as defined in the Note) and
amount of interest payable on
such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global
Security representing such Note.
6. Whether such Global Security will
represent any other Book-Entry
Note (to the extent known at such
time).
D. The Company will deliver to CB
the Global Security representing
such Note.
E. CB will complete such Note and
authenticate the Global Security
representing such Note.
F. DTC will credit such Note to CB's
participant account at DTC.
G. CB will enter an SDFS deliver
order through DTC's Participant
Terminal System instructing DTC
to (i) debit such Note to CB's
participant account and credit
such Note to such Agent's
participant account and (ii)
debit such Agent's settlement
account and credit CB's
settlement account for an amount
equal to the price of such Note
less such Agent's commission.
The entry of such a deliver order
shall constitute a representation
and warranty by CB to DTC that
(a) the Global Security
14
representing such Book-Entry Note
has been issued and authenticated
and (b) CB is holding such Global
Security pursuant to the Medium-
Term Note Certificate Agreement
between CB and DTC.
▇. ▇▇▇▇ Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
account and credit such Note to
the participant accounts of the
Participants with respect to such
Note and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of such Agent
for an amount equal to the price
of such Note.
I. Transfers of funds in accordance
with SDFS deliver orders
described in Settlement
Procedures "G" and "H" will be
settled in accordance with SDFS
operating procedures in effect on
the settlement date.
J. CB will wire transfer to the
account of the Company maintained
at Chemical Bank, New York, New
York, in funds available for
immediate use in the amount
transferred to CB in accordance
with Settlement Procedure "G".
K. Monthly, CB will send to the
Company a statement setting forth
the principal amount of Notes
Outstanding as of that date under
the Indenture and setting forth a
brief description of any sales of
which the Company has advised CB
but which have not yet been
settled.
L. Such Agent will confirm the
purchase of such Note to the
purchaser either by transmitting
to the Participants with respect
15
to such Note a confirmation order
or orders through DTC's institu-
tional delivery system or by
mailing a written confirmation to
such purchaser.
Settlement For orders of Book-entry Notes solicited
Procedures by an Agent, as agent, and accepted by
Timetable: 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:
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 day before
settlement date
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
▇-▇ 5:00 P.M. on settlement
date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable
but no later than 11:00 A.M., 12 Noon and
2:00 P.M., as the case may be, on the
first Business Day after the sale date.
If the initial interest rate for a
Floating Rate Book-Entry Note has not
been determined at the time that
Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall
be completed as soon as such rate has
been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the
second Business Day before the settlement
date. Settlement Procedure "I" is
16
subject to extension in accordance with
any extension of Fedwire closing
deadlines and in the other events
specified in the SDFS operating
procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, CB will deliver
to DTC, through DTC's Participation
Terminal System, a cancellation message
to such effect by no later than 2:00 P.M.
on the Business Day immediately preceding
the scheduled settlement date.
Failure to Settle: If CB fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", CB
may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message
instructing DTC to debit such Note to
CB's participant withdrawal message,
provided that CB's participant account
contains a principal amount of the Global
Security representing such Note that is
at least equal to the principal amount to
be debited. If a withdrawal message is
processed with respect to all the Book-
Entry Notes represented by a Global
Security, CB will mark such Global
Security "cancelled" make appropriate
entries in CB's records and send such
cancelled Global Security to the Company.
CUSIP number assigned to such Global
Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled
and not immediately reassigned. If a
withdrawal message is processed with
respect to one or more, but not all, of
the Book-Entry Notes represented by a
Global Security, CB will exchange such
Global Security for two Global
Securities, one of which shall represent
such Book-Entry Note or Notes and shall
be cancelled immediately after issuance
and the other of which shall represent
the remaining Book-Entry Notes previously
represented by the surrendered Global
Security and shall bear the CUSIP number
of the surrendered Global Security.
17
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such Note by
the beneficial purchaser thereof (or a
Person, including an indirect participant
in DTC, acting on behalf of such
purchaser), such Participants and, in
turn, the Agent for such Note may enter
SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures "H" and "G", respectively.
Thereafter, CB will deliver the
withdrawal message and take the related
actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-
Entry Note, DTC may take any actions in
accordance with its SDFS operating
procedures then in effect. In the event
of a failure to settle with respect to
one or more, but not all, of the Book-
Entry Notes to have been represented by a
Global Security, CB will provide, in
accordance with Settlement Procedures "D"
and "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.
Procedures For When the Company has determined to change
Rate Changes: the interest rates of Notes being
offered, it will promptly advise the
Agents and the Agents will forthwith
suspend solicitation of offers. 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 offers. Until such time
only "indications of interest" may be
recorded. Within two Business Days after
any sale of Notes, the Company will file
with the Securities and Exchange
Commission a pricing supplement to the
prospectus and prospectus supplement
relating to such Notes that reflects the
18
applicable interest rates and other terms
and will deliver copies of such pricing
supplement to the Agents.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the
Amendment or Agency Agreement, the Company may
Supplement: instruct each Agent to suspend
solicitation of purchases of Book-Entry
Notes at any time. Upon receipt of such
instructions, each Agent will forthwith
suspend such solicitations until such
time as it has been advised by the
Company that such solicitations may be
resumed. If the Company decides to amend
or supplement the registration statements
filed by the Company with the Securities
and Exchange Commission with respect to
the Notes or the prospectus and
prospectus supplement relating to the
Notes, it will promptly advise each Agent
and will furnish it with the proposed
amendment or supplement, all consistent
with the Company's obligations under the
Agency Agreement. The Company will,
consistent with such obligations,
promptly advise each Agent and CB whether
orders outstanding at the time each Agent
suspends solicitation may be settled and
whether copies of such prospectus and
prospectus supplement as in effect at the
time of the suspension, together with the
appropriate pricing supplement, may be
delivered in connection with the
settlement of such orders. The Company
will have the sole responsibility for
such decision and for any arrangements
that may be made in the event that the
Company determines that such orders may
not be settled or that copies of such
prospectus, prospectus supplement and
pricing supplement may not be so
delivered.
Delivery of A copy of the prospectus and prospectus
Prospectus: supplement relating to the Notes and a
pricing supplement relating to a Book-
Entry Note must accompany or precede the
earliest of any written offer of such
Note, confirmation of the purchase of
such Note or payment for such Note by its
purchaser. If notice of a change in the
19
terms of the Book-Entry Notes is received
by an Agent between the time an order for
a Book-Entry Note is placed and the time
written confirmation thereof is sent by
such Agent to a customer or his agent,
such confirmation shall be accompanied by
a prospectus, prospectus supplement and
pricing supplement setting forth the
terms in effect when the order was
placed. Subject to the preceding
paragraph, each Agent will deliver a
prospectus, prospectus supplement and
pricing supplement as herein described
with respect to each Book-Entry Note sold
by it.
20
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
CB will serve as registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its
authentication by CB. Each Certificated
Note will bear an Original Issue Date,
which will be (i) with respect to an
original Certificated Note (or any
portion thereof), its original issuance
date (which will be the settlement date)
and (ii) with respect to any Certificated
Note (or portion thereof) issued
subsequently upon transfer or exchange of
a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated
Note, the Original Issue Date of the
predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and A Certificated Note may be presented for
Exchanges: transfer or exchange at the corporate
trust office of CB. Certificated Notes
will be exchangeable for other
Certificated Notes having identical terms
but different denominations without
service charge. Certificated Notes will
not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a
date not less than nine months or more
than 30 years from the settlement date
for such note.
Denominations: Certificated Notes denominated in U.S.
dollars will be issued in denominations
of $100,000 or any amount in excess
thereof that is an integral multiple of
$1,000. The authorized denominations of
Notes denominated in other than U.S.
dollars will be specified pursuant to
Settlement Procedures, below.
Interest: General. Interest on each Certificated
-------
Note will accrue from the Original Issue
Date of such Note for the first interest
21
period and from the most recent interest
Payment Date to which interest has been
paid for all subsequent interest periods.
Each payment of interest on a
Certificated Note will include interest
accrued to but excluding the Interest
Payment Date or Maturity (other than a
Maturity of a Fixed Rate Certificated
Note occurring on the thirty-first day of
a month, in which case such payment will
include interest accruing to but
excluding the thirtieth day of such
month).
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 June 1 and
December 1 of each year and at Maturity;
provided, however, that in the case of
-------- -------
Fixed Rate Certificated Notes issued
between a Regular Record Date and an
Interest Payment Date or on an Interest
Payment Date, the first interest payment
will be made on the Interest Payment Date
following the next succeeding Regular
Record Date.
Floating Rate Certificated Notes.
--------------------------------
Interest payments will be made on
Floating Rate Certificated Notes monthly,
quarterly, semi-annually or annually.
Interest will be payable, in the case of
Floating Rate Certificated Notes with a
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 Floating Rate
Certificated Notes would otherwise be a
day that is not a Business Day with
respect to such Floating Rate
22
Certificated Notes, such Interest Payment
Date will be the next succeeding Business
Day with respect to such Floating Rate
Certificated Notes, except in the case of
a LIBOR Note if such Business Day is in
the next succeeding calendar month, in
which event 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
Regular Record Date and an interest
Payment Date or on an Interest Payment
Date, the first interest payment will be
made on the Interest Payment Date
following the next succeeding Regular
Record Date.
Calculation of Fixed Rate Certificated Notes. Interest
Interest: -----------------------------
on Fixed Rate Certificated Notes
(including interest for partial periods)
will be calculated on the basis of a year
of twelve thirty-day months. (Examples
of interest calculations are as follows:
August 15, 1988 to February 15, 1989,
equals 6 months and 0 days or 180 days;
the interest payable equals 180/360 times
the annual rate of interest times the
principal amount of the Note. The period
from September 17, 1988 to February 15,
1989 equals 4 months and 28 days, or 148
days; the interest payable equals 148/360
times the annual rate of interest times
principal amount of the Note.)
Floating Rate Certificated Notes.
--------------------------------
Interest rates on Floating Rate
Certificated Notes will be determined as
set forth in the form of Notes. The
Company and CB will confirm the amount of
the initial interest payment due on any
Floating Rate Certificated Note for which
the initial Interest Period is shorter or
longer than the Index Maturity. Interest
on Floating Rate Certificated Notes will
be calculated on the basis of actual days
elapsed and a year of 360 days except
that in the case of Treasury Rate Notes,
interest will be calculated on the basis
of the actual number of days in the year.
23
Payments of CB will pay the principal amount of each
Principal and Certificated Note at Maturity upon
Interest: presentation of such Note to CB. Such
payment, together with payment of
interest due at Maturity of such Note,
will be made in funds available for
immediate use by CB and in turn by the
Holder of such Note. Certificated Notes
presented to CB at Maturity for payment
will be cancelled by CB and delivered to
the Company with a certificate of
custodian. All interest payments on a
Certificated Note (other than interest
due at Maturity) will be made by check
drawn on CB (or another Person appointed
by CB) and mailed by CB to the Person
entitled thereto as provided in such Note
and the Indenture; provided, however,
-------- -------
that the holder of $10,000,000 (or the
equivalent thereof in other currencies)
or more of Notes with similar tenor and
terms will be entitled to receive payment
by wire transfer in U.S. dollars.
Following each Regular Record Date and
Special Record Date, CB will furnish the
Company with a list of interest payments
to be made on the following Interest
Payment Date for each Certificated Note
and in total for all Certificated Notes.
Interest at Maturity will be payable to
the Person to whom the payment of
principal is payable. CB 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. CB
will be responsible for withholding taxes
on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date for or the
Maturity of a Certificated Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue
on such payment for the period from and
after such Interest Payment Date or
Maturity, as the case may be.
Procedure for Rate The Company and the Agent will discuss
Setting and from time to time the aggregate principal
Posting: amount of, the issuance price of, and the
24
interest rates to be borne by,
Certificated Notes that may be sold as a
result of the solicitation of orders by
the Agent. If the Company decides to set
prices of, and rates borne by, any
Certificated Notes in respect of which
the Agent is to solicit orders (the
setting of such prices and rates to be
referred to herein as "posting") or if
the Company decides to change prices or
rates previously posted by it, it will
promptly advise the Agent of the prices
and rates to be posted.
Acceptance and Unless otherwise instructed by the
Rejection of Company, each Agent will advise the
Offers: Company promptly by telephone of all
offers to purchase Certificated Notes
received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion.
Unless otherwise agreed by the Company
and each of the Agents, the Company has
the sole right to accept offers to
purchase Notes and may reject any such
offer in whole or in part.
Preparation of If any order to purchase a Registered
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the terms of such
Note and will arrange to file with the
Commission (via ▇▇▇▇▇) in accordance with
the applicable paragraph of Rule 424(b)
under the Act. The Agent will cause a
Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing
Supplement is prepared, the Agent will
affix the Pricing Supplement to
Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached
(other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered
to the selling Agent and such Agent's
25
delivery of such Note against receipt of
immediately available funds shall, with
respect to such Note, constitute
"settlement". All orders accepted by the
Company will be settled on the next
Business Day pursuant to the timetable
for settlement set forth below, unless
the Company and the purchaser agree to
settlement on a later date; provided,
--------
however, that in the case of a delayed
-------
settlement the Company will notify CB at
least twenty-four hours prior to the time
of settlement.
Settlement Settlement Procedures with regard to
Procedures: each Certificated Note sold by the
Company through an Agent, as agent, shall
be as follows:
▇. ▇▇▇▇ Agent will advise the
Company by telephone of the
following settlement information:
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner
and address for payment of
principal and interest.
3. Taxpayer identification number of
the Registered Owner (if
available).
4. Principal amount.
5. Stated Maturity.
6. In the case of 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).
26
7. Interest Payment Period and
Interest Payment Dates.
8. Specified Currency and whether
the option to elect payment in a
Specified Currency applies and if
the Specified Currency is not
U.S. dollars, the authorized
denominations.
9. Redemption provisions, if any.
10. Repayment provisions, if any.
11. Settlement date.
12. Price (including currency).
13. Agent's commission, determined as
provided in Section 2 of the
Agency Agreement between the
Company and such Agent.
14. Whether the Note is an Original
Issue Discount Note, and if it is
an Original Issue Discount Note,
the total amount of OID, the
yield to maturity and the initial
accrual period OID.
B. The Company will advise CB by
telephone or electronic
transmission (confirmed in
writing at any time on the sale
date) of the information set
forth in Settlement Procedure "A"
above and the name of such Agent.
Each such communication by the
Company shall constitute a
representation and warranty by
the Company to CB and each Agent
that (i) such Note is then, and
at the time of issuance and sale
thereof will be, duly authorized
for issuance and sale by the
Company, (ii) such Note will
conform with the terms of the
Indenture and (iii) upon
authentication and delivery of
such Note, the aggregate initial
offering price of all Notes and
Euro Medium-Term Notes, Series C
27
issued under the Indenture will
not exceed $ or
----------------
the equivalent thereof in other
currencies (except for securities
represented by securities
authenticated and delivered in
exchange for or in lieu of
securities pursuant to Section
304, 305, 306, 906 or 1107 of any
Indenture).
C. The Company will deliver to CB a
pre-printed four-ply packet for
such Note, which packet will
contain the following documents
in forms that have been approved
by the Company, the Agents and
the Trustee:
1. Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. CB will complete such Note and
authenticate such Note and
deliver it (with the confirma-
tion) and Stubs One and Two to
such Agent, and such Agent will
acknowledge receipt of the Note
by stamping or otherwise marking
Stub One and returning it to CB.
Such delivery will be made only
against such acknowledgment of
receipt and evidence that
instructions have been given by
such Agent for payment to the
account of the Company at
Chemical Bank, New York, New
York, in funds available for
immediate use, of an amount equal
to the price of such Note less
such Agent's commission. In the
event that the instructions given
by such Agent for payment to the
account of the Company are
revoked, the Company will as
promptly as possible wire
transfer to the account of such
28
Agent an amount of immediately
available funds equal to the
amount of such payment made.
▇. ▇▇▇▇ Agent will deliver such Note
(with confirmation) to the
customer against payment in
immediately payable funds. Such
Agent will obtain the acknowledg-
ment of receipt of such Note by
retaining Stub Two.
F. CB will send Stub Three to the
Company by first-class mail.
Periodically, CB will also send
to the Company a statement
setting forth the principal
amount of the Notes Outstanding
as of that date under the
Indenture and setting forth a
brief description of any sales of
which the Company has advised CB
but which have not yet been
settled.
Settlement For offers of Certificated Notes
Procedures solicited by an Agent, as agent, and
Timetable: accepted by the Company, Settlement
Procedures "A" through "C" set forth
above shall be completed on or before the
respective times (New York City time) set
forth below:
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement
date
F 5:00 P.M. on settlement
date
Failure to Settle: If a purchaser fails to accept delivery
of and make payment for any Certificated
Note, the selling Agent will notify the
Company and CB by telephone and return
such Note to CB. Upon receipt of such
29
notice, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited thereto in respect of such Note.
Such wire transfer will be made on the
settlement date, if possible, and in any
event not later than the day following
the settlement date. If the failure
shall have occurred for any reason other
than a default by such Agent in the
performance of its obligations hereunder
and under the Agency Agreement with the
Company, then the Company will reimburse
such Agent or CB, as appropriate, on an
equitable basis for its loss of the use
of the funds during the period when they
were credited to the account of the
Company. Immediately upon receipt of the
Certificated Note in respect of which
such failure occurred, CB will mark such
Note "cancelled," make appropriate
entries in CB's records and send such
Note to the Company.
Procedure for Rate When the Company has determined to change
Changes: the interest rates of Notes being
offered, it will promptly advise the
Agents and the Agents will forthwith
suspend solicitation of offers. 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 offers. Until such time
only "indications of interest" may be
recorded. Within two business days after
any sale of Notes, the Company will file
with the Securities and Exchange
Commission a pricing supplement to the
prospectus and prospectus supplement
relating to such Notes that reflects the
applicable interest rates and other terms
and will deliver copies of such pricing
supplement to the Agents.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the
Amendments or Agency Agreement, the Company may
Supplement: instruct each Agent to suspend
solicitation of purchases of Certificated
Notes at any time. Upon receipt of such
30
instructions, each Agent will forthwith
suspend such solicitations until such
time as it has been advised by the
Company that such solicitations may be
resumed. If the Company decides to amend
or supplement the registration statements
filed by the Company with the Securities
and Exchange Commission with respect to
the Notes or the prospectus and
prospectus supplement relating to the
Notes, it will promptly advise each Agent
and will furnish it with the proposed
amendment or supplement, all consistent
with the Company's obligations under the
Agency Agreement. The Company will,
consistent with such obligations,
promptly advise each Agent and CB whether
orders outstanding at the time each Agent
suspends solicitation may be settled and
whether copies of such prospectus and
prospectus supplement as in effect at the
time of the suspension, together with the
appropriate pricing supplement, may be
delivered in connection with the
settlement of such orders. The Company
will have the sole responsibility for
such decision and for any arrangements
that may be made in the event that the
Company determines that such orders may
not be settled or that copies of such
prospectus, prospectus supplement and
pricing supplement may not be so
delivered.
Delivery of A copy of the prospectus and prospectus
Prospectus: supplement relating to the Notes and a
pricing supplement relating to a
Certificated Note must accompany or
precede the earlier of any written offer
of such Note, delivery of such Note,
confirmation of the purchase of such Note
and payment for such Note by its
purchaser. If notice of a change in the
terms of the Certificated Notes is
received by an Agent between the time an
order for a Certificated Note is placed
and the time written confirmation thereof
is sent by such Agent to a customer or
his agent, such confirmation shall be
accompanied by a prospectus, prospectus
supplement and pricing supplement setting
forth the terms in effect when the order
31
was placed. Subject to the preceding
paragraph, each Agent will deliver a
prospectus, prospectus supplement and
pricing supplement as herein described
with respect to each Note sold by it.
32
EXHIBIT B
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
Medium Term Notes, Series C
Due from 9 Months to Thirty Years from Date of Issue
TERMS AGREEMENT
, 1992
Attention:
Subject in all respects to the terms and
conditions of the Selling Agency Agreement (the "Agreement")
dated December , 1992, among Salomon Brothers Inc, ▇▇▇▇▇▇▇
--
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
Shearson ▇▇▇▇▇▇ Brothers Inc., and you, the undersigned agrees to
purchase the following Notes of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.:
Aggregate Principal Amount:
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount [plus
accrued interest from 199 ]
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 Section
6(b) of the Agreement:
Other Terms:
Period during which additional
Notes may not be sold pursuant
to Section 4(1) of the Agreement:
[Purchaser]
By:
-------------------
Accepted:
By:
--------------------
Title:
2
Additional Information Applicable to
Offers to Purchase Original Issue Discount Notes
------------------------------------------------
Total amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
EXHIBIT C
AGENCY AGREEMENT
----------------
Dated:
--------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and Treasurer
Re: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc.
Medium-Term Notes, Series C
Dear ▇▇. ▇▇▇▇▇
We hereby agree to act as an Agent pursuant to the Selling Agency
Agreement, dated as of December , 1992 (the "Selling Agency
--
Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc., Salomon Brothers
Inc, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and Shearson ▇▇▇▇▇▇ Brothers Inc., all of the terms
and conditions of which (except as provided below) are
incorporated herein by reference.
Our agreement hereunder is subject to the conditions set forth in
the Selling Agency Agreement other than the conditions set forth
in paragraphs (i), (j) and (k) of Section 4 thereof and
paragraphs (b), (c), (d), (e), (f), and (g) of Section 5 thereof.
Notices and other communications to us hereunder should be
directed to Attention:
----------------------------------------
Medium-Term Note Department.
This agreement shall terminate days after the date hereof.
-----
If the foregoing correctly sets forth our agreement, please
indicate your acceptance in the space provided for that purpose
below.
Very truly yours,
By:
-----------------
Title:
Accepted and agreed to as of the date set forth above.
▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANIES INC.
By:
----------------------