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Exhibit 1(b)
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
Medium-Term Notes, Series B
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
, 1997
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, N.Y. 10048
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
World Financial Center, North Tower
New York, NY 10281
Dear Sirs:
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, an Ohio corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to the aggregate principal amount set forth in Schedule I
hereto of its Medium-Term Notes, Series B, Due Nine Months or More from Date of
Issue (the "Notes"). The Notes will be issued under an indenture dated as of
February 1, 1996 between the Company and The Chase Manhattan Bank (formerly
Chemical Bank), as trustee (the "Trustee") (the "Indenture"). Unless otherwise
specifically provided for and set forth in a supplement to the Prospectus
referred to below, the Notes in minimum denominations of $1,000 and in
denominations exceeding such amount by integral multiples of $1,000, will be
issued only in fully registered form and will have the maturities, annual
interest rates and, if appropriate, other terms set forth in such supplement to
the Prospectus. The Notes will be issued, and the terms thereof established, in
accordance with the Indenture and the Medium-Term Notes Administrative
Procedures attached hereto as Exhibit A (the "Procedures"). The Procedures may
only be amended by written agreement of the Company and each of you after notice
to, and with the approval of, the Trustee. For the purposes of this Agreement,
the term "Agent" shall refer to any of you acting solely in the capacity as
agent for the Company pursuant to Section 2(a) and not as principal
(collectively, the "Agents"), the term the "Purchaser" shall refer to one of you
acting solely as principal pursuant to Section 2(b) and not as agent, and the
term "you" shall
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refer to collectively whether at any time any of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not jointly.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each of you as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (File Number: 333- ), including the same basic prospectus, which
has become effective, for the registration under the Act of $150,000,000
aggregate principal amount of debt securities (the "Securities"), including the
Notes. The Terms Agreement referred to in Section 2 for any offering of
Securities will specify the registration statement under which such Securities
are registered or, if portions of such Securities are registered under each of
such registration statements, the respective portions thereof. Such registration
statements, as amended as of the Execution Time, meet the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and comply in all other material
respects with said Rule. The Company has included in such registration
statements, or has filed or will file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act, a supplement to the form of
prospectus included in such registration statement relating to the Notes and
the plan of distribution thereof (the "Prospectus Supplement"). In connection
with the sale of Notes the Company proposes to file with the Commission pursuant
to the applicable paragraph of Rule 424(b) under the Act further supplements to
the Prospectus Supplement (each a "Pricing Supplement"), specifying the interest
rates, maturity dates and, if appropriate, other similar terms of the Notes sold
pursuant hereto or the offering thereof. If the Rule 434 Delivery Alternative is
used, the Company will also file the Rule 434 Term Sheet in accordance with Rule
434. As filed, such Rule 434 Term Sheet shall contain all the information
required by Rule 434, and except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included or
made therein. Upon your request, but
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not without your agreement, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b).
(b) As of the Execution Time, on the respective Effective Date of the
registration statement referred to in paragraph (a) above, on the date of any
post-effective amendment thereto, when any supplement to the Prospectus is filed
with the Commission, as of the date of a Terms Agreement and at the date of
delivery by the Company of any Notes sold hereunder (a "Closing Date"), (i) the
registration statement, as amended as of any such time, and the Prospectus, as
supplemented as of any such time, and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust Indenture Act of
1939 (the "Trust Indenture Act"), as amended and the Securities Exchange Act of
1934 (the "Exchange Act") and the respective rules thereunder; (ii) the
registration statement, as amended as of any such time, does not or will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and (iii) the Prospectus, as supplemented as of any such
time, will not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any or all of you specifically for use in connection with the preparation of
the Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms and such Notes will have been
duly authorized, and, when issued to and paid for by the purchasers thereof,
will constitute legal, valid and binding obligations of the Company entitled to
the benefits of the Indenture.
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(d) The Company has complied with the provisions of the Laws of
Florida, Chapter 92-198 Securities Business with Cuba.
(e) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean, with respect to
the registration statement referred to in paragraph (a) above, the date that
such registration statement, any post-effective amendment or amendments thereto
and any Rule 462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Basic Prospectus" shall mean the form of
basic prospectus relating to the Securities contained in the Registration
Statement at the Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. If the Rule 434 Delivery Alternative
is used, such term shall also include the Basic Prospectus and the Rule 434 Term
Sheet, taken together. "Registration Statement" shall mean, collectively, the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time, in the form in which
it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended. Such
term shall include any Rule 430A Information and Rule 434 Information deemed to
be included therein at the Effective Date as provided by Rule 430A and Rule 434,
respectively. "Rule 415", "Rule 424", "Rule 430A", "Rule 434", "Rule 462(b)" and
"Regulation S-K" refer to such rules under the Act. "Rule 430A Information"
means information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. "Rule 434 Delivery Alternative" shall mean the
delivery alternative permitted by Rule 434. "Rule 434 Information" shall mean
any information to be included in a Rule 434 Term Sheet. "Rule 434 Term Sheet"
shall mean the term sheet or abbreviated term sheet delivered by the
Underwriters to investors and filed by the Company with the Commission pursuant
to Rule 434. "Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the final Delayed Offering covered by the initial Registration Statement (file
number 333- ). Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
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refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS OF OFFERS TO
PURCHASE; SALES OF NOTES TO 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. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not, except as otherwise provided in this
Agreement, have any liability to the Company in the event any such purchase is
not consummated for any reason. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes for its own
account. It is understood and agreed, however, that any Agent may purchase Notes
as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
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The Company agrees to pay each Agent a commission, on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent, in an amount equal to that percentage specified in Schedule
I hereto of the aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers
for the purchase of Notes may be solicited by an agent as agent for the Company
at such time and in such amounts as such Agent deems advisable. The Company may
from time to time offer Notes for sale otherwise than through an Agent;
PROVIDED, HOWEVER, that so long as this Agreement shall be in effect the Company
shall not solicit or accept offers to purchase Notes through any agent
(excluding the Company's or its subsidiaries' employees) other than an Agent.
(b) Subject to the terms and conditions set forth herein, whenever the
Company and any of you determines that the Company shall sell Notes directly to
any of you as principal, each such sale of Notes shall be made in accordance
with the terms of this Agreement and, a supplemental agreement relating to such
sale. Each such supplemental agreement (which may be either an oral agreement
confirmed in writing or a written agreement) is herein referred to as a "Terms
Agreement". Each Terms Agreement shall describe the Notes to be purchased by the
Purchaser pursuant thereto and shall specify the principal amount of each such
Note, the aggregate principal amount of all such Notes, the maturity date of
such Notes, the rate at which interest will be paid on such Notes, the dates on
which interest will be paid on such Notes and the record date with respect to
each such payment of interest, the Closing Date for such Notes, the place of
delivery of the Notes and payment therefor, the method of payment and any
requirements for the delivery of opinions of counsel, certificates from the
Company or its officers or a letter from the Company's independent public
accountants, as described in Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The Purchaser's
commitment to purchase Notes shall be deemed to have been made on the basis of
the representation and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to a Terms Agreement shall be made not
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later than the Closing Date agreed to in such Terms Agreement, against payment
of funds to the Company in the net amount due to the Company for such Notes by
the method and in the form set forth in the Procedures unless otherwise agreed
to between the Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Agent at varying prices from
time to time or, if set forth in the applicable Terms Agreement and Pricing
Supplement, at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may reallow
any portion of the discount or commission payable pursuant hereto to dealers or
purchasers.
3. OFFERING AND SALE OF NOTES. Each Agent shall communicate to the
Company, orally or in writing, each offer (unless previously rejected by such
Agent as provided below) to purchase Notes on terms previously communicated by
the Company to such Agent, and the Company shall have the sole right to accept
such offers to purchase Notes and may refuse any proposed purchase of Notes in
whole or in part for any reason. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any such offer received by it in
whole or in part. Each Agent and the Company agree to perform the respective
duties and obligations specifically provided to be performed by them in the
Procedures.
4. AGREEMENTS. The Company agrees with each of you that:
(a) Prior to the termination of the offering of the Notes (including by
way of resale by a Purchaser of Notes), the Company will not file any amendment
of the Registration Statement or supplement to the Prospectus (except for (i) a
periodic or current report filed under the Exchange Act, (ii) a Supplement
relating to any offering of, or a change in the maturity dates, interest rates,
issuance prices or other similar terms of, any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) or any Rule 462(b)
Registration Statement unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable opportunity to
comment on any such proposed amendment or supplement or Rule 462(b) Registration
Statement. Subject
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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. If the Rule 434 Delivery Alternative is
used, the Company will also cause the Rule 434 Term Sheet, properly completed,
to be filed with the Commission pursuant to Rule 434 within the time period
prescribed and will provide evidence satisfactory to the Agents of such timely
filing. Upon your request, the Company will cause the Rule 462(b) Registration
Statement, properly completed, to be filed with the Commission pursuant to Rule
462(b) and will provide evidence satisfactory to the Agents of such filing. The
Company will promptly advise each of you (i) when the Prospectus, any supplement
thereto (except for a supplement relating to an offering of Securities other
than the Notes), any Rule 434 Term Sheet or any Rule 462(b) Registration
Statement, shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when, prior to the termination of the offering of the Notes, any amendment
of the Registration Statement shall have been filed or become effective, (iii)
of any request by the Commission for any amendment of the Registration Statement
or supplement to the Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any reasonable proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof;
(b) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement or
to supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so notified by the
Company, each of you shall forthwith suspend such solicitation and cease using
the Prospectus as then supplemented), (ii) prepare and file with the Commission,
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subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in such
quantities as you may reasonably request. If such amendment or supplement, and
any documents, certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation or filing of
such amendment or supplement are reasonably satisfactory in all respects to you,
you will, upon the filing of such amendment or supplement with the Commission
and upon the effectiveness of an amendment to the Registration Statement, if
such an amendment is required, resume your obligation to solicit offers to
purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, on or prior to the date on which the Company makes
any announcement to the general public concerning earnings or concerning any
other event which is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be contained in such
announcement. The Company also will furnish to each of you copies of all
material press releases or material announcements furnished to news or wire
services. The Company will promptly notify each of you by telephone or telecopy
of (i) any decrease in the rating of the Notes or any other debt securities of
the Company by ▇▇▇▇▇'▇ Investors Service Inc. ("Moody's") or Standard & Poor's
Corporation ("S&P") or (ii) any written notice received from S&P or Moody's of
any intended or contemplated decrease in any such rating or of a possible change
in any such rating that does not indicate the direction of the possible change;
(d) As soon as practicable, the Company will make generally available
to its security holders and to each of you an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act;
(e) The Company will furnish to each of you and your counsel, without
charge, copies of the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus may be required by the Act, as many
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copies of the Prospectus and any supplement thereto as you
may reasonably request;
(f) The Company will use its best efforts to arrange for the
qualification of the Notes for sale under the laws of such jurisdictions as any
of you may designate, and to maintain such qualifications in effect so long as
required for the distribution of the Notes and, if requested by you, will
arrange for the determination of the legality of the Notes for purchase by
institutional investors;
(g) The Company shall furnish to each of you such documents,
certificates of officers of the Company and opinions of counsel for the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indenture, the Notes, this Agreement, the Procedures
and the performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to time and at
any time prior to the termination of this Agreement reasonably request;
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expense incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the reasonable fees and disbursements, including fees of counsel, incurred in
compliance with Section 4(f), the fees and disbursements of the Trustee and the
fees of any agency that rates the Notes, (ii) reimburse each of you, upon
request, on a monthly basis for all out-of-pocket expenses, if any, incurred by
you and approved by the Company in advance, in connection with this Agreement
and (iii) pay the reasonable fees and expenses of your counsel incurred in
connection with this Agreement and approved by the Company in advance (which
approval may be oral);
(i) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties contained
in Section 1 of this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of delivery
to the purchaser of
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the Notes relating to such acceptance, as though made at and as of such time (it
being understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to constitute an additional representation, warranty and agreement by the
Company that, as of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be issued on or
prior to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the Registration
Statement. The Company will inform you promptly upon your inquiry of the
aggregate amount of Securities registered under the Registration Statement which
remain unsold;
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i) relating
to any offering of Securities other than the Notes or (ii) providing solely for
the specification of or a change in the maturity dates, the interest rates, the
issuance prices, the redemption dates (whether pursuant to a sinking fund or
otherwise) or other similar terms of any Notes sold pursuant hereto), the
Company will deliver or cause to be delivered promptly to each of you a
certificate of the Company, signed by the Senior Vice President - Finance,
Treasurer and Chief Financial Officer and Vice President and Assistant Treasurer
or other vice president of the Company, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in Section
5(d) but modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the Commission and to
the Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement;
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i) relating
to any offering of Securities other than the Notes or (ii) providing solely for
the specification of or a change in the maturity dates, the interest rates, the
issuance prices, the redemption dates or other similar terms of any Notes sold
pursuant hereto), the Company shall furnish or cause to be furnished promptly to
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each of you a written opinion of counsel of the Company in form reasonably
satisfactory to each of you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in lieu of
such opinion, counsel last furnishing such an opinion to you may furnish each of
you with a letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement);
(1) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause Ernst & Young LLP, its independent public accountants, promptly to furnish
each of you a letter, dated the date of the effectiveness of such amendment or
the date of the filing of such supplement, in form reasonably satisfactory to
each of you, of the same tenor as the letter referred to in Section 5(e) with
such changes as may be necessary to reflect the amended and supplemental
financial information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of such
letter; PROVIDED, HOWEVER, that, if the Registration Statement or the Prospectus
is amended or supplemented solely to include or incorporate by reference
financial information as of and for a fiscal quarter, Ernst & Young LLP may
limit the scope of such letter, which shall be reasonably satisfactory in form
to each of you, to the unaudited financial statements, the related "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
any other information of an accounting, financial or statistical nature included
in such amendment or supplement, unless, in the reasonable judgment of any of
you, such letter should cover other information; and
(m) During the period, if any, specified in any Terms Agreement, the
Company shall not, without the prior consent of the Purchaser, issue or announce
the proposed issuance of any of its debt securities, including Notes, with terms
substantially similar to the Notes being purchased pursuant to such Terms
Agreement, other than
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borrowings under its revolving credit agreements and lines of credit and
issuances of its commercial paper.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
in all material respects of the representations and warranties on the part of
the Company contained in Section 1 hereof as of the Execution Time, on the
Effective Date, as of the date any supplement to the Prospectus is filed with
the Commission and as of each Closing Date, to the accuracy in all material
respects of the statements of the Company made in any certificates pursuant to
the provisions of this Section 5, to the performance in all material respects by
the Company of its obligations hereunder and to satisfaction of the following
additional conditions in all material respects:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b), or if the filing of the Rule 434 Term
Sheet is required pursuant to Rule 434, the Rule 434 Term Sheet will be
filed in the manner and within the time period required by Rule 434;
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened;
(b) The Company shall have furnished to each Agent the opinion
of the Vice President, General Counsel and Secretary of the Company,
dated the Execution Time, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Ohio, with full corporate power to own
its properties and conduct its business as described in the
Prospectus and is qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business
except where the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole. The Company's significant subsidiaries (as
defined in Rule 405 under the Securities Act) (the
"Subsidiaries") are duly incorporated and validly existing as
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corporations in good standing under the laws of the
jurisdiction in which it is organized, each with full
corporate power and authority to own its properties and
conduct business as described in the Prospectus, and are duly
qualified to do business as foreign corporations and are in
good standing under the laws of each jurisdiction which
requires such qualification wherein each such Subsidiary owns
or leases material properties or conducts material business
except where the failure to so qualify would not have a
material adverse effect on the operations of the Company and
its subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of
the Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares
of capital stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge
of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as incorporated in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section l(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); and the Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the purchasers thereof, will constitute legal, valid and
binding obligations of
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the Company entitled to the benefits of the
Indenture;
(v) to the knowledge of such counsel, after due
inquiry, there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus pursuant
to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b), or if the Rule 434 Delivery
Alternative was used, the required filing of the Rule 434 Term
Sheet has been made in the manner and time period required by
Rule 434; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Prospectus (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; and nothing has caused such
counsel to believe that the Registration Statement at the
Effective Date or at the Execution Time contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the
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circumstances under which they were made, not misleading
(except for the financial statements and other financial and
statistical information contained therein, as to which such
counsel need not express an opinion);
(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 Amended Articles of Incorporation or Code of
Regulations, as amended, of the Company or the terms of any
indenture or other material agreement or instrument known to
such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any judgment, order or
decree 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 Statement.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Ohio or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are reasonably satisfactory to counsel for the Agents and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible officers of
the Company and public officials.
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(c) The Agents shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Agents, such opinion or opinions, dated the
Execution Time, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus and other related
matters as the Agents may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably
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;
(d) The Company shall have furnished to the Agents a
certificate of the Company, signed by the Senior Vice President -
Finance, Treasurer and Chief Financial Officer and Vice President and
Assistant Treasure or other vice president of the Company, dated the
Execution Time, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties in Section 1
hereof of the Company in this Agreement are true and correct
in all material respects on and as of the date hereof with the
same effect as if made on the date hereof and the Company has
substantially complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as
a condition to the obligation of the Agents to solicit offers
to purchase the Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus;
(e) At the Execution Time, ▇▇▇▇▇ & Young LLP shall have
furnished to the Agents a letter or letters
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(which may refer to letters previously delivered to the Agents), dated
as of the Execution Time, in form and substance reasonably satisfactory
to the Agents, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Prospectus and reported on
by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the amounts
included or incorporated in the Registration Statement and the
Prospectus in response to Item 301 of Regulation S-K and of
the latest unaudited financial statements made available by
the Company and its subsidiaries; their limited review in
accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited
interim financial information as indicated in their reports
incorporated in the Registration Statement and the Prospectus;
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the
Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Registration Statement and the Prospectus, nothing came
to their attention which caused them to believe that:
(1) the amounts in the "Selected Financial Data", if
any, included or incorporated in the Registration Statement
and the Prospectus do not agree with the corresponding amounts
in the
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audited financial statements from which such amounts were
derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus;
(3) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule information), audited or unaudited, in or incorporated
in the Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five business
days prior to the date of the letter, in the aggregate
long-term debt due within one year and long-term debt
(exclusive of current portion) of the Company and its
consolidated subsidiaries or common stock of the Company or
decreases in the shareholders' equity of the Company and its
consolidated subsidiaries as compared with the amounts shown
on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus,
or for the period from the date of the most recent financial
statements included or incorporated in the Registration
Statement and the Prospectus to the date of the most recently
available monthly unaudited financial information there were
any decreases relating to continuing operations, as compared
with the corresponding period in the preceding year in total
revenue or earnings before income taxes or in the total or per
share amounts of net earnings of the Company and its
consolidated subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Agents; or
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(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information included or
incorporated in Items 1, 2, 5, 6, 7 and 11 of the Company's Annual
Report on Form 10-K, incorporated in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included
or incorporated in the Registration Statement and the Prospectus, on
the basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain
officials of the Company and the acquired company who have
responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro forma
financial statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of such statements; and
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(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled 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 the Agents and their counsel, this agreement and all
obligations of any Agent hereunder may be canceled at any time by such Agent.
Notice of such cancelation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the Agents, at
Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, on the date hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Company in Section 1 of this Agreement as of the date of the Terms Agreement and
as of the Closing Date for such Notes, to the performance and observance in all
material respects by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to satisfaction of the
following additional conditions precedent in all material respects:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement and except to the extent modified by
such Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(d) (except that references
to the Prospectus shall be to the Prospectus as supplemented at the
time of execution of the Terms Agreement), (ii) the opinion of counsel
for the Company, dated as of the Closing Date, to the effect set forth
in Section 5(b), (iii) the opinion of ▇▇▇▇▇▇▇, Swaine & ▇▇▇▇▇, counsel
for the Agents, dated
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as of the Closing Date, to the effect set forth in Section 5(c), and
(iv) letter of ▇▇▇▇▇ & Young LLP, dated as of the Closing Date, to the
effect set forth in Section 5(e); and
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request, including any
further items specified in Exhibit B.
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 an applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective Closing Date
by the Purchaser. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO PURCHASE. (a)
The Company agrees that any person who has agreed to purchase and pay for any
Note, including the Purchaser and any person who purchases pursuant to a
solicitation by any of the Agents, shall have the right to refuse to purchase
such Note if (a) at the Closing Date therefor, any condition set forth in
Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such note if, subsequent to the agreement to
purchase such Note, any change, condition or development specified in any of
Sections 9(b)(i) through (v) shall have occurred (with the judgment of the Agent
which presented the offer to purchase such Note being substituted for any
judgment of a Purchaser required therein), the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical to proceed with the sale and
delivery of such Note (it being understood that under no circumstance shall any
such Agent have any duty or obligation under this Agreement to the Company or to
any such person to exercise
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the judgment permitted to be exercised under this
Section 7(b) and Section 9(b)).
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each of you, the directors, officers and employees of each of you
and each person who controls each of you within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which you, they or any of you or them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in the Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
as incurred each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any of you specifically for use in connection
with the preparation thereof, and (ii) such indemnity with respect to the
Prospectus or any preliminary Prospectus shall not inure to the benefit of any
of you (or any person controlling any of you) from whom the person asserting any
such loss, claim, damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Prospectus or any
preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall indemnify and
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hold each of you harmless against any loss, claim or damage arising from or as a
result of such default by the Company.
(b) Each of you agrees to indemnify and hold harmless the Company, each
of its employees and directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of either
the Act or the Exchange Act, against any and all losses, claims, damages, or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other Federal or state statutory
law of regulation, as 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 material fact in
written information relating to such of you furnished to the Company by or on
behalf of such of you specifically for inclusion in the Registration Statement
as originally filed or in any amendment thereof, or in the Prospectus or any
preliminary Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state in such
written information a material fact required be to stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. 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 "Underwriting" or "Plan of Distribution", of any preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of any of you for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Agents, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
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
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therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; PROVIDED, HOWEVER, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and an additional
local counsel, if needed, approved by you in the case of paragraph (a) of this
Section 8, representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party or (iv) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
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proceeding. Any indemnifying party shall not be liable for any settlement,
compromise or consent of any proceeding effected by the indemnified party
without the written consent of the indemnifying party (which consent shall not
be unreasonably withheld), unless the indemnifying party has waived its right to
appoint counsel to represent the indemnified party in such proceeding in which
case the indemnified party may effect such a settlement, compromise or consent
without the consent of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 8 is due in accordance with its terms, but is held by a court to
be unavailable in whole or in part to hold harmless an indemnified party for any
reason (other than an act or omission or such indemnified party), the Company
and each of you agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively, "Losses") to which the
Company and one or more of you may be subject in such proportion so that each of
you is responsible for that portion as is appropriate to reflect the relative
benefits received by the Company and each of you from the offering of the Notes
from which such Losses arise; PROVIDED, HOWEVER, that in no case shall any of
you be responsible for any amount in excess of the commissions received by such
of you in connection with the Notes from which such Losses arise (or, in the
case of Notes sold pursuant to a Terms Agreement, the aggregate commissions that
would have been received by such of you if such commissions had been payable).
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and each of you shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of each of you in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) of the Notes from which such Losses arise, and benefits received by
each of you shall be deemed to be equal to the total commissions received by
such of you in connection with the Notes from which such Losses arise (or, in
the case of Notes sold pursuant to a Terms Agreement, the aggregate commissions
that would have been received by such of you if such commissions had been
payable). Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the
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Company or any of you. The Company and each of you agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls any of you within the meaning of the
Act or the Exchange Act and each director, officer and employee of any of you
shall have the same rights to contribution as you and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director, officer and employee of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from other obligation it or they may have hereunder
or otherwise than under this paragraph (d).
9. TERMINATION. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated by
either the Company as to any of you insofar as this Agreement relates to such of
you, giving written notice of such termination to such of you or the Company, as
the case may be. This Agreement shall so terminate at the close of business on
the first business day following the receipt of such notice by the party to whom
such notice is given. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in Section 2(a), Section
4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of any payment for any Note to be purchased thereunder, if prior to
such time (i) there shall have occurred, subsequent to the agreement to purchase
such Note, any change, or any development involving a prospective change, in or
affecting
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the business or properties of the Company and its subsidiaries, taken as a
whole, the effect of which is, in the judgment of the Purchaser, so material and
adverse as to make it impractical to proceed with the offering or delivery of
such Note, (ii) there shall have been, subsequent to the agreement to purchase
such Note, any decrease in the rating of any of the Company's debt securities by
▇▇▇▇▇'▇ or S&P or any formal notice given of any intended or contemplated
decrease in any such rating, (iii) trading in the Company's Common Stock shall
have been suspended by the Commission or the New York Stock Exchange (other than
temporarily pending an announcement or development) or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (iv) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (v) there shall have occurred any material outbreak or material
escalation of hostilities, declaration by the United States of war or other
calamity or crisis, the effect of which on financial markets is such as to make
it, in the judgment of the Purchaser, impracticable to proceed with the offering
or delivery of such Notes as contemplated by the Prospectus (exclusive of any
supplement subsequent to such event).
10. SURVIVAL OF CERTAIN PROVISIONS. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall
survive the termination or cancelation of this Agreement. The provisions of this
Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If at the
time of termination of this Agreement any Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of selling them, the
provisions of Section 4 shall remain in effect until such Notes are resold.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telegraphed and confirmed to such of you, at the address specified in
Schedule I hereto; or, if sent to the Company, will be
29
29
mailed, delivered or telecopied and confirmed to it at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Vice President, General Counsel and
Secretary.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the directors,
officers, employees, and controlling persons referred to in Section 8 hereof
and, to the extent provided in Section 7, any person will have any right or
obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which shall together constitute
one and the same instrument.
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,
THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-COMPANY,
by
-------------------------------
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
hereof.
SALOMON BROTHERS INC,
by
-------------------------------
Title:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
by
30
30
-------------------------------
Title:
31
SCHEDULE I
Selling Agency Agreement dated , 1997
Registration Statement No. 333-
Amount of the Securities registered under Registration
Statement: $150,000,000
Aggregate Amount of the Securities Registered: $150,000,000
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by each Agent:
MATURITY RANGE OF NOTES % 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%
20 years up to and including 30 years. .750%
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on the basis
of the commission schedule set forth above.
Address for notices:
Notices to Salomon Brothers Inc shall be directed to it at Seven World
Trade Center, New York, New York 10048, Attention: Medium Term Notes Department.
Notices to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. shall be directed to it at ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center, North Tower,
10th Floor, New York, New York 10281-1311, Attention: MTN Product Management.
Notices to The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company shall be directed to it at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
The Company may satisfy its obligation under subsection (c) of Section
4 of the Selling Agency Agreement to furnish to each of the Agents copies of all
documents
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filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act by promptly furnishing such documents to Cravath,
Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
33
EXHIBIT A
THE ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
------------------------------------------
, 1997
----------------------------
Medium-Term Notes, Series B, Due Nine Months or More from Date of Issue
(the "Notes") are to be offered on a continuing basis by The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company (the "Company"). Salomon Brothers Inc and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as agents
(individually, an "Agent" and collectively, the "Agents"), have agreed to
solicit purchases of Notes issued in fully registered form. The Agents will not
be obligated to purchase Notes for their own accounts. The Notes are being sold
pursuant to a Selling Agency Agreement among the Company and the Agents dated
, 1997 (the "Agency Agreement"). The Notes will rank equally with all
other unsecured and unsubordinated debt of the Company and have been registered
with the Securities and Exchange Commission (the "Commission"). The Chase
Manhattan Bank (formerly Chemical Bank) (the "Trustee") is the trustee under the
Indenture dated as of February 1, 1996 (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by an
Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to The Chase Manhattan Bank ("Chase"), 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"). Only
Notes denominated and payable in U.S. dollars may be issued as Book-Entry Notes.
An owner of a Book-Entry Note will not be entitled to receive a certificate
representing such Note, except in the event that use of the book-entry system
for the Notes is discontinued.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its
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Treasury Department. The Company will advise the Agents and the Trustee in
writing of those persons handling administrative responsibilities with whom the
Agents and the Trustee are to communicate regarding offers to purchase Notes and
the details of their delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the indenture and the
Notes shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes". Notes for which interest is calculated
on the basis of a floating interest rate are referred to herein as "Floating
Rate Notes". To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture, DTC's operating requirements or the
Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC's
operating requirements and the Agency Agreement shall control.
PART I
ADMINISTRATIVE PROCEDURES FOR
-----------------------------
BOOK-ENTRY NOTES
----------------
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Chase will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and Chase to DTC dated as of the date hereof and a Medium-Term
Note Certificate Agreement between Chase and DTC and its obligations as a
participant in DTC, including DTC's Same Day Funds Settlement System ("SDFS").
ISSUANCE: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$150,000,000 principal amount of all such Book-
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3
Entry Notes that have the same original issue date, original
issue discount provisions, if any, Interest Payment Dates,
Record Dates, reset, extension, repayment, sinking fund and
redemption provisions, if any, Maturity Date and, in the
case of Fixed Rate Notes, interest rate, or, in the case of
Floating Rate Notes, initial interest rate, Base Rate, Index
Maturity, Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier, if any, minimum interest rate,
if any, and maximum interest rate, if any (all of the
foregoing are collectively referred to as the "Terms"). Each
Global Security will be dated and issued as of the date of
settlement and authenticated by the Trustee. Each Global
Security will bear an original issue date, which will be (i)
with respect to an original Global Security (or any portion
thereof), the original issue date specified in such Global
Security and (ii) following a consolidation of Global
Securities, with respect to the Global Security resulting
from such consolidation, the most recent Interest Payment
Date to which interest has been paid or duly provided for on
the predecessor Global Securities, regardless of the date of
authentication of such resulting Global Security. No Global
Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note.
IDENTIFICATION The Company has arranged with the CUSIP Service
NUMBERS: Bureau of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP numbers,
which series consists of approximately 900 CUSIP numbers and
relates to Global Securities representing Book-Entry Notes
and book-entry medium-term notes issued by the Company with
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4
other series designations. Chase, the Company and DTC have
obtained from the CUSIP Service Bureau a written list of
such reserved CUSIP numbers. The Company will assign CUSIP
numbers to Global Securities as described below under
Settlement Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Company
has assigned to Global Securities. Chase will notify the
Company at any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, and,
if it deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Global Securities. Upon
obtaining such additional CUSIP numbers, the Company shall
deliver a list of such additional CUSIP numbers to Chase and
DTC.
REGISTRATION: Global Securities will be issued only in fully registered
form without coupons. Each Global Security will be
registered in the name of Cede & Co., as nominee for DTC, on
the securities register for the Notes maintained under the
Indenture. The beneficial owner of a Book-Entry Note (or one
or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with
respect to such Book-Entry Note, the "Participants") to act
as agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
beneficial owner of such Book-Entry Note in the account of
such Participants. The ownership interest of such beneficial
owner (or such participant) in such Book-Entry Note will be
recorded through the records of such Participants or through
the separate records of such Participants
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and one or more indirect participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Note.
EXCHANGES: Chase may deliver to DTC and the CUSIP Service Bureau at any
time a written notice of consolidation (a copy of which
shall be attached to the resulting Global Security described
below) specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed-Rate
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, or (B) Floating
Rate Book-Entry Notes having the same terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is
delivered and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which such
Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number,
obtained from the Company, to be assigned to such
replacement Global Security. Upon receipt of such a notice,
DTC will send to its participants (including Chase) a
written reorganization notice to the effect that such
exchange will occur on such date. Prior to the specified
exchange date, Chase will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date and
such new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified exchange
date, Chase will exchange
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6
such Global Securities for a single Global Security bearing
the new CUSIP number and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $150,000,000 in aggregate
principal amount, one Global Security will be authenticated
and issued to represent each $150,000,000 of principal
amount of the exchanged Global Securities and an additional
Global Security will be authenticated and issued to
represent any remaining principal amount of such Global
Securities (see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature on a date (the "Maturity
Date") not less than 9 months after the Original Issue Date
for such Note.
PRICE TO PUBLIC: Each Book-Entry Note will be issued at the
percentage of principal amount specified in the Prospectus
Supplement (as defined in Section l(c) of the Agency
Agreement) or in a Pricing Supplement as defined in the
Prospectus Supplement relating to such Note.
DENOMINATIONS: The denomination of any Book-Entry Note will be a minimum of
$1,000 or any amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be denominated in
principal amounts not in excess of $150,000,000. If one or
more Book-Entry Notes having an aggregate principal amount
in excess of $150,000,000 would, but for the preceding
sentence, be represented by a single Global Security, then
one Global Security will be authenticated and issued to
represent each $150,000,000 principal amount of such
Book-Entry Note or Notes and an
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additional Global Security will be authenticated and issued
to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or Notes shall
be assigned the same CUSIP number.
INTEREST: GENERAL. Except as set forth in the Book-Entry Note,
interest, if any, on each Book-Entry Note will accrue from
the original issue date for the first interest period or the
last date to which interest has been paid, if any, for each
subsequent interest period, on the Global Security
representing such Book-Entry Note, and will be calculated
and paid in the manner described in such Book-Entry Note and
in the Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date or to but
excluding the maturity of any payment of principal
(hereinafter referred to as "Maturity"), other than a
Maturity of a Fixed Rate Book-Entry Note occurring on the
31st day of a month, in which case such payment of interest
will include interest accrued to but excluding the 30th day
of such month, or to but excluding the date of redemption or
repayment in full of such Book-Entry Note (hereinafter
referred to as "Redemption"). Interest payable at the
Maturity or upon Redemption of a Book-Entry Note will be
payable to the person to whom the principal of such Note is
payable. Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order to
include the amount of any interest payable and certain other
information regarding the related
40
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Global Security in the appropriate (daily or weekly) bond
report published by Standard & Poor's Corporation.
RECORD DATES. The Record Date with respect to any Interest
Payment Date shall be the date 15 calendar days immediately
preceding such Interest Payment Date (whether or not a
Business Day).
INTEREST PAYMENT DATES ON FIXED RATE BOOK-ENTRY NOTES.
Unless otherwise specified pursuant to Settlement Procedure
"A" below, interest payments on Fixed Rate Book-Entry Notes
will be made semi-annually on May 1 and November 1 of each
year and at Maturity or upon Redemption; PROVIDED, HOWEVER,
that in the case of a Fixed Rate Book-Entry Note issued
between a Record Date and an Interest Payment Date, the
first interest payment will be made on the Interest Payment
Date following the next succeeding Record Date. If any
Interest Payment Date for a Fixed Rate Book-Entry Note is
not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after
such Interest Payment Date.
INTEREST PAYMENT DATES ON FLOATING RATE BOOK-ENTRY NOTES.
Interest Payments will be made on Floating Rate Book-Entry
Notes monthly, quarterly, semi-annually or annually, or as
specified in the applicable Pricing Supplement. Unless
otherwise set forth in the Note, interest will be payable,
in the case of Floating Rate Book-Entry Notes with a monthly
Interest Payment Period, on the third Wednesday of each
month; with a quarterly Interest Payment Period, on the
third Wednesday of March, June, September and December of
each year;
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with a semi-annual Interest Payment Period, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and with an annual Interest Payment
Period, on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below; PROVIDED,
HOWEVER, that if an Interest Payment Date for a Floating
Rate Book-Entry Note would otherwise be a day that is not a
Business Day with respect to such Floating Rate Book-Entry
Notes, such Interest Payment Date will be the next
succeeding Business Day with respect to such Floating Rate
Book-Entry Note, except in the case of a Floating Book-Entry
Note for which the Base Rate is LIBOR, if such Business Day
is in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day;
and PROVIDED FURTHER that in the case of a Floating Rate
Book-Entry Note issued between a Record Date and an Interest
Payment Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. At the written
request of the Company, Chase will deliver to the Company
and DTC a written list of Record Dates and Interest Payment
Dates that will occur with respect to Book-Entry Notes.
Promptly after each Interest Determination Date for Floating
Rate Book-Entry Notes, Chase, as Calculation Agent, will
notify Standard & Poor's Corporation of the interest rates
determined on such Interest Determination Date.
CALCULATION FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed
OF INTEREST: Rate Book-Entry Notes (including interest for partial
periods) will be calculated on the
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basis of a 360-day year of twelve 30-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in
the form of Notes. Interest on Floating Rate Book-Entry
Notes, except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and a year of
360 days, except that in the case of a Floating Rate
Book-Entry Note for which the Base Rate is the Treasury
Rate, interest will be calculated on the basis of the actual
number of days in the year.
PAYMENT OF PAYMENT OF INTEREST ONLY. Promptly after each Record Date,
PRINCIPAL AND Chase will deliver to the Company and DTC a written notice
INTEREST: setting forth, by CUSIP number, to the extent then
ascertainable, the amount of interest to be paid on each
Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
Maturity or Redemption) and the total of such amounts. DTC
will confirm the amount payable on each Global Security on
such Interest Payment Date by reference to the appropriate
bond reports published by Standard & Poor's Corporation. The
Company will pay to Chase, as paying agent, the total amount
of interest due on such Interest Payment Date (other than at
Maturity or upon Redemption), and Chase will pay such amount
to DTC, at the times and in the manner set forth below under
"Manner of Payment".
PAYMENTS AT MATURITY OR UPON REDEMPTION. On or about the
first Business Day of each month, Chase will deliver to the
Company, DTC and the Trustee a written list of principal and
to the extent then ascertainable, interest to be paid on
each Global Security maturing (at
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Maturity or upon Redemption or otherwise) in such month.
Chase, the Company and DTC will confirm the amounts of such
principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding
the Maturity Date or Redemption Date, as the case may be, of
such Global Security. On or before the Maturity Date or
Redemption Date, as the case may be, the Company will pay to
Chase, as paying agent, the principal amount of such Global
Security, together with interest due at such Maturity Date
or Redemption Date, as the case may be. Chase will pay such
amount to DTC at the times and in the manner set forth below
under "Manner of Payment". If any Maturity Date or
Redemption Date of a Global Security representing Book-Entry
Notes is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from
and after such Maturity Date or Redemption Date. Promptly
after payment to DTC of the principal and interest due at
Maturity or upon Redemption of such Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company. On the first
Business Day of each month, if Chase is not the Trustee,
then Chase will deliver to the Trustee a written statement
indicating the total principal amount of Outstanding Global
Securities as of the immediately preceding Business Day.
MANNER OF PAYMENT. The total amount of any principal and
interest due on Global Securities on any Interest Payment
Date or at Maturity or upon Redemption shall be paid by the
Company to Chase in immediately available funds no later
than 9:30 A.M. (New York City time) on
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such date, or as soon as possible thereafter. The Company
will make such payment on such Global Securities by
instructing Chase to withdraw funds from an account
maintained by the Company at Chase or by wire transfer to
Chase. The Company will confirm any such instructions in
writing to Chase. Prior to 10 A.M. (New York City time) on
the Maturity Date or Redemption Date or as soon as possible
thereafter, Chase will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve Bank
of New York previously specified by DTC, in funds available
for immediate use by DTC, each payment of principal
(together with interest thereon) due on a Global Security on
such date. On each Interest Payment Date (other than at
Maturity or upon Redemption), interest payments shall be
made to DTC, in funds available for immediate use by DTC, in
accordance with existing arrangements between Chase and DTC.
On each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants
in whose names the Book-Entry Notes represented by such
Global Securities are recorded in the book-entry system
maintained by DTC. None of the Company (as issuer or as
paying agent), the Trustee or Chase 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
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DTC or other Person responsible for forwarding payments and
materials directly to the beneficial owner of such Note.
PROCEDURES UPON COMPANY NOTICE TO TRUSTEE REGARDING EXERCISE OF OPTIONAL
COMPANY'S RESET. Not less than 50 or more than 60 days before an
EXERCISE OF Optional Reset Date as set forth in a Book-Entry Note, the
OPTIONAL RESET OR Company will notify the Trustee whether it is exercising its
OPTIONAL option to reset the Interest Rate or Spread or Spread
EXTENSION OF Multiplier, as the case may be, for such Book-Entry Note,
MATURITY: and if so, (i) the new Interest Rate or Spread or Spread
Multiplier, as the case may be, for such Book-Entry Note
during the period from such Optional Reset Date to the next
Optional Reset Date as set forth in such Book-Entry Note or,
if there is no such next Optional Reset Date, to the Stated
Maturity of such Book-Entry Note (the "Subsequent Interest
Period"); and (ii) the provisions, if any, for redemption of
such Book-Entry Note during such Subsequent Interest Period,
including the date or dates on which or the period or
periods during which such redemption may occur during such
Subsequent Interest Period.
COMPANY NOTICE TO TRUSTEE REGARDING EXERCISE OF OPTIONAL
EXTENSION OF MATURITY. If the Company elects to exercise an
option, as set forth in a Book-Entry Note, to extend the
Stated Maturity of such Note, it will so notify the Trustee
no less than 50 or more than 60 days before the Stated
Maturity of such Book-Entry Note, and will further indicate
(i) the new Stated Maturity; (ii) the Interest Rate or
Spread or Spread Multiplier, as the case may be, applicable
to such extension period and (iii) the provisions, if any,
for redemption of such Book-Entry Note during such extension
period, including the date or dates on which or the period
or
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periods during which such redemption may occur during such
extension period.
TRUSTEE NOTICE TO DTC REGARDING COMPANY'S EXERCISE OF
OPTIONAL EXTENSION OR RESET. Upon receipt of notice from the
Company regarding the Company's exercise of either an
optional extension of maturity or an optional reset, the
Trustee will hand-deliver a notice to DTC not less than 40
days before the Optional Reset Date (in which case a "Reset
Notice") or the old Stated Maturity (in which case an
"Extension Notice"), as the case may be, which Reset Notice
or Extension Notice shall identify such Book-Entry Note by
CUSIP number and shall contain the information required by
the terms of the Book-Entry Note.
TRUSTEE NOTICE TO COMPANY REGARDING OPTION TO BE REPAID. If,
after receipt of either a Reset Notice or an Extension
Notice, DTC exercises the option for repayment by tendering
the Global Security representing the Book-Entry Note to be
repaid as set forth in such Note, the Trustee shall give
notice to the Company not less than 22 days before the
Optional Reset Date or the old Stated Maturity, as the case
may be, of the principal amount of Book-Entry Notes to be
repaid on such Optional Reset Date or old Stated Maturity,
as the case may be.
COMPANY NOTICE REGARDING NEW INTEREST RATE OR NEW SPREAD OR
SPREAD MULTIPLIER. If the Company elects to revoke the
Interest Rate or Spread or Spread Multiplier and establish a
higher interest rate or Spread or Spread Multiplier for an
Optional Reset Period or extension period, as the case may
be, it shall, not less than 20 days before such Optional
Reset Date or old Stated Maturity, so
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notify the Trustee. The Trustee will immediately thereafter
notify DTC of the new Interest Rate or Spread or Spread
Multiplier applicable to such Book-Entry Note.
TRUSTEE NOTICE TO COMPANY REGARDING DTC REVOCATION OF OPTION
TO BE REPAID. If, after DTC has tendered any Book-Entry
Notes for repayment pursuant to an Extension Notice or an
Optional Reset Notice, DTC then revokes such tender for
repayment, the Trustee shall give notice to the Company not
less than five days prior to the old Stated Maturity or
Optional Reset Date, as the case may be, of such revocation
and of the principal amount of Book-Entry Notes for which
tender for repayment has been revoked.
DEPOSIT OF REPAYMENT PRICE. On or before any old Stated
Maturity where the Maturity has been extended, and on or
before an Optional Reset Date, the Company shall deposit
with the Trustee an amount of money sufficient to pay the
principal amount, plus interest accrued to such old Stated
Maturity or Optional Reset Date, as the case may be, for all
the Book-Entry Notes or portions thereof which are to be
repaid on such old Stated Maturity or Optional Reset Date,
as the case may be. Such Trustee will use such money to
repay such Book-Entry Notes pursuant to the terms set forth
in such Notes.
PROCEDURES UPON COMPANY NOTICE TO TRUSTEE REGARDING EXERCISE OF OPTIONAL
TRUSTEE REGARDING REDEMPTION. At least 45 days prior to the date on which it
COMPANY'S intends to redeem a Book-Entry Note, the Company will
EXERCISE notify the Trustee that it is exercising such option with
REDEMPTION: respect to such Book-Entry Note on such date.
TRUSTEE NOTICE TO DTC REGARDING COMPANY'S EXERCISE OF
OPTIONAL
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16
REDEMPTION. After receipt of notice that the Company is
exercising its option to redeem a Book-Entry Note, the
Trustee will, at least 30 days before the redemption date
for such Book-Entry Note, hand deliver to DTC a notice
identifying such Book-Entry Note by CUSIP number and
informing DTC of the Company's exercise of such option with
respect to such Book-Entry Note.
DEPOSIT OF REDEMPTION PRICE. On or before any redemption
date, the Company shall deposit with such Trustee an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for all the
Book-Entry Notes or portions thereof which are to be repaid
on such redemption date. Such Trustee will use such money to
repay such Book-Entry Notes pursuant to the terms set forth
in such Notes.
PAYMENTS OF TRUSTEE NOTICE TO COMPANY OF OPTION TO BE REPAID. Upon
PRINCIPAL AND receipt of notice of exercise of the option for repayment
INTEREST UPON and the Global Securities representing the Book-Entry Notes
EXERCISE OF so to be repaid as set forth in such Notes, the Trustee
OPTIONAL shall (unless such notice was received pursuant to the
REPAYMENT (EXCEPT Company's exercise of an optional reset or an optional
PURSUANT TO extension of maturity, in each of which cases the relevant
COMPANY'S procedures set forth above are to be followed) give notice
EXERCISE OF to the Company not less than 20 days prior to each Optional
OPTIONAL RESET OR Repayment Date of such Optional Repayment Date and of the
OPTIONAL principal amount of Book-Entry Notes to be repaid on such
EXTENSION): Optional Repayment Date.
DEPOSIT OF REPAYMENT PRICE. On or prior to any Optional
Repayment Date, the Company shall deposit with such Trustee
an amount of money sufficient to pay the optional repayment
price, and accrued interest thereon to such
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17
date, of all the Book-Entry Notes or portions thereof which
are to be repaid on such date. Such Trustee will use such
money to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
PROCEDURE FOR The Company and the Agents will discuss from time to time
RATE SETTING AND the aggregate principal amount of, the issuance price of,
POSTING: and the interest rates to be borne by, Book-Entry Notes that
may be sold as a result of the solicitation of orders by the
Agents. If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which the
Agents are to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if the
Company decides to change prices or rates previously posted
by it, it will promptly advise the Agents of the prices and
rates to be posted.
ACCEPTANCE AND Each Agent will promptly advise the Company by telephone of
REJECTION OF any offers to purchase Book-Entry Notes received by such
OFFERS: Agent. The Company will have the sole right to accept any
such offer to purchase Book-Entry Notes. The Company may
reject any such orders in whole or in part.
Each Agent may, in its discretion reasonably exercised,
reject an offer to purchase Book-Entry Notes received by it
in whole or in part.
PREPARATION OF If an offer to purchase a Book-Entry Note is accepted by or
PRICING on behalf of the Company, the Company, with the approval of
SUPPLEMENT: the Agent that presented such offer (the "Presenting
Agent"), will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Book-Entry Note
and will arrange to have 10 copies thereof filed with the
Commission in
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18
accordance with the applicable paragraph of Rule 424(b)
under the Act and will supply at least 10 copies thereof
(and additional copies if requested) to the Presenting Agent
and one copy to the Trustee. The Presenting Agent will cause
a Pricing Supplement to be delivered to the purchaser of the
Book-Entry Note.
The copies of the Pricing Supplement to be sent to the
Presenting Agent shall be sent by telecopy or overnight
courier to arrive no later than 11:00 a.m., New York City
time, on the second business day following the sale date and
shall be sent:
(a) if to Salomon Brothers Inc, to it at:
Salomon Brothers Inc
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., to it at:
(i) for overnight, express or
special delivery packages:
Tritech Services
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Prospectus Operations/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
(ii) for all other types of
deliveries:
Tritech Services
#▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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19
Attn: Prospectus Operations/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇/2776
and, in each case, please send a
copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
North Tower
10th Floor
New York, NY 10281
Attn: MTN Product Management
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the Presenting Agent may
specify. Receipt of all telecopy transmissions shall be
confirmed by telephone.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Out-dated Pricing
Supplements and the Prospectuses to which they are attached
(other than those retained for files) will be destroyed.
SUSPENSION OF The Company reserves the right, in its sole discretion, to
SOLICITATION instruct the Agents to suspend at any time, for any period
AMENDMENT OR of time or permanently, the solicitation of orders to
SUPPLEMENT: purchase Book-Entry Notes. Upon receipt of such
instructions, the Agents will forthwith suspend solicitation
until such time as the Company has advised them that such
solicitation may be resumed.
If the Company decides to amend or supplement the
Registration Statement (as defined in Section l(c) of the
Agency Agreement) or the Prospectus (except for a supplement
relating to
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20
an offering of securities other than the Notes), it will
promptly advise the Agents and furnish the Agents with the
proposed amendment or supplement and with such certificates
and opinions as are required, all to the extent required by
and in accordance with the terms of the Agency Agreement.
Subject to the provisions of the Agency Agreement, the
Company may file with the Commission any supplement to the
Prospectus relating to the Notes. The Company will provide
the Agents, the Trustee and Chase with copies of any
supplement and confirm to the Agents that such supplement
has been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
In the event that at the time the Company suspends
solicitation of offers to purchase Book-Entry Notes there
shall be any outstanding offers to purchase Book-Entry Notes
that have been accepted by the Company but for which
settlement has not yet occurred, the Company will promptly
advise the Agents, the Trustee and Chase whether such orders
may be settled and whether copies of the Prospectus as
supplemented to the time of the suspension may be delivered
in connection with the settlement of such sales. The Company
will have the sole responsibility for such decision and for
any arrangements that may be made in the event that the
Company determines that such orders may not be settled or
that copies of such Prospectus may not be so delivered.
PROCEDURE FOR When the Company has determined to change the interest rates
RATE CHANGES: of Book-Entry Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend
solicitation of orders. The Agents will telephone the
Company with
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21
recommendations as to the changed interest rates. At such
time as the Company has advised the Agents of the new
interest rates, the Agents may resume solicitation of
orders. Until such time, only "indications of interest" may
be recorded.
DELIVERY OF A copy of the Prospectus and a Pricing Supplement relating
PROSPECTUS: to a Book-Entry Note must accompany or precede the earliest
of any written offer of such Book-Entry Note, confirmation
of the purchase of such Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If notice of a change in
the terms of the Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry Note is placed
and the time written confirmation thereof is sent by the
Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the Presenting
Agent will deliver a Prospectus and Pricing Supplement as
herein described with respect to each Book-Entry Note sold
by it. The Company will make such delivery if such
Book-Entry Note is sold directly by the Company to a
purchaser (other than an Agent).
CONFIRMATION: For each offer to purchase a Book-Entry Note solicited by
an Agent and accepted by the Company, the Presenting Agent
will issue a confirmation to the purchaser, with a copy to
the Company, setting forth the details set forth below and
delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the
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22
Global Security representing such Book-Entry Note shall
constitute "settlement" with respect to such Book-Entry
Note. All orders accepted by the Company will be settled on
the third Business Day following the date of sale of such
Book-Entry Note pursuant to the timetable for settlement set
forth below unless the Company and the purchaser agree to
settlement on another day which shall be no earlier than the
next Business Day following the date of sale.
DETAILS FOR Settlement Procedures with regard to each Book-Entry Note
SETTLEMENT: sold by the Company through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company by
telephone of the following settlement information:
1. Principal amount of the Book-Entry Note.
2. In the case of a Fixed Rate Book-Entry Note, the
interest rate or, in the case of a Floating Rate
Book-Entry Note, the Base Rate, initial interest
rate (if known at such time), Index Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any), minimum
interest rate (if any).
3. Issuance price of the Book-Entry Note.
4. Trade and Settlement dates.
5. Maturity Date and, if applicable, the Extension
Period and Final Maturity Date.
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23
6. Record Dates, Interest Payment Dates and
the Interest Payment Period.
7. Optional Reset Dates, if any.
8. Redemption provisions, if any.
9. Repayment or sinking fund provisions, if
any.
10. Presenting Agent's DTC participant
account number and commission, to be
paid in the form of a discount upon
settlement.
11. Whether such Book-Entry Note is issued
at an original issue discount and, if
so, the total amount of OID, the yield
to maturity and the initial accrual
period OID.
12. Taxpayer identification number of the
purchaser.
13. Net proceeds to the Company.
14. Any other applicable terms.
B. The Company will assign a CUSIP number to the Global
Security representing such Book-Entry Note, assign an
order number to such Book-Entry Note and then advise
Chase by telephone (confirmed in writing at any time on
the same date) or electronic transmission of the
information set forth in Settlement Procedure "A"
above, such CUSIP number, such order number, the name
of the Presenting Agent and any other applicable
information. The Company will also notify the
56
24
Presenting Agent by telephone or electronic
transmission of such CUSIP number as soon as
practicable. The Company will provide Chase with
registration instructions and Taxpayer
Identification Number (if the Note is not to be
registered to DTC or its nominee).
▇. ▇▇▇▇▇ will enter a pending deposit message through
DTC's Participant Terminal System providing the
following settlement information to DTC (which shall
route such information to Standard & Poor's Corporation
and Interactive Data Corporation), the Presenting Agent
and, upon request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Record
Date (which, in the case of Floating
Rate Book-Entry Notes that reset daily
or weekly, shall be the DTC Record Date,
which is the date five calendar days
immediately preceding the applicable
Interest Payment Date and, in the case
of all other Book-Entry Notes, shall be
the Record Date as defined in such
Notes) and amount of interest payable on
such Interest Payment Date.
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25
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
7. Account numbers of participant accounts
maintained by DTC on behalf of the
Presenting Agent and the Trustee.
D. To the extent the Company has not already done so, the
Company will deliver to the Trustee a Global Security
in a form that has been approved by the Company, the
Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp
the appropriate legend, as instructed by DTC, if not
already set forth thereon, and authenticate the Global
Security representing such Book-Entry Note in
accordance with the terms of the written order of the
Company then in effect.
F. DTC will credit such Book-Entry Note to ▇▇▇▇▇'▇
participant account at DTC.
▇. ▇▇▇▇▇ will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i)
debit such Book-Entry Note to ▇▇▇▇▇'▇ participant
account and credit such Book-Entry Note to the
Presenting Agent's participant account and (ii) debit
the Presenting
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26
Agent's settlement account and credit ▇▇▇▇▇'▇
settlement account for an amount equal to the
price of such Book-Entry Note less the Presenting
Agent's commission. The entry of such a deliver
order shall constitute a representation and
warranty by Chase to DTC that (i) the Global
Security representing such Book-Entry Note has
been issued and authenticated and (ii) Chase is
holding such Global Security pursuant to the
Medium-Term Note Certificate Agreement between
Chase and DTC.
H. The Presenting Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Book-Entry Note to the Presenting
Agent's participant account and credit such Book-Entry
Note to the participant accounts of the Participants
with respect to such Book-Entry Note and (ii) to debit
the settlement accounts of such Participants and credit
the settlement account of the Presenting Agent for an
amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
▇. ▇▇▇▇▇ will, upon receipt of funds from the Presenting
Agent in accordance with Settlement Procedure "G",
credit or wire transfer to an account specified by the
Company funds available for immediate use in the amount
transferred to Chase in
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27
accordance with Settlement Procedure "G".
K. The Presenting Agent will confirm the purchase of such
Book-Entry Note to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
SETTLEMENT For orders of Book-Entry Notes solicited by an Agent and
PROCEDURES accepted by the Company for settlement on the first Business
TIMETABLE: Day after the sale date, Settlement Procedures "A" through
"K" set forth above shall be completed as soon as possible
but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day
before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first Business Day after the sale
date and no later than 2:00 P.M. on the Business Day before
the settlement date, respectively. If the initial interest
rate for a Floating Rate Book-Entry Note has not
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28
been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date. Settlement
Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, Chase will, assuming timely notice thereof,
deliver to DTC, through DTC's Participant Terminal System, a
cancelation message to such effect by no later than 2:00
P.M. on the Business Day immediately preceding the scheduled
settlement date.
FAILURE TO If Chase fails to enter an SDFS deliver order with respect
SETTLE: to a Book-Entry Note pursuant to Settlement Procedure "G",
then, upon written request of the Company (which may be by
telecopy) Chase shall deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Book-Entry
Note to ▇▇▇▇▇'▇ participant account. DTC will process the
withdrawal message, provided that ▇▇▇▇▇'▇ participant
account contains a principal amount of the Global Security
representing such Book-Entry Note that is at least equal to
the principal amount to be debited. If a withdrawal message
is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will cancel
such Global Security in accordance with the Indenture and so
advise the Company and Chase, and Chase will make
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29
appropriate entries in its records. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, Chase will exchange
such Book-Entry Note for two Global Securities, one of which
shall represent such Book-Entry Notes and shall be canceled
immediately after issuance and the other of which shall
represent the other Book-Entry Notes previously represented
by the surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and "G" respectively.
Thereafter Chase will deliver the withdrawal message and
take the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than a default by the Presenting Agent in the
performance of its obligations hereunder and under the
Agency Agreement, then the Company will reimburse the
Presenting Agent or Chase, as applicable, on an equitable
basis for the loss of the use of funds during the period
when they were credited to the account of the Company.
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30
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, Chase will provide,
in accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
TRUSTEE AND CHASE Nothing herein shall be deemed to require the Trustee or
NOT TO RISK Chase to risk or expend its own funds in connection with any
FUNDS: payment to the Company, DTC, the Agents or the purchaser, it
being understood by all parties that payments made by the
Trustee or Chase to the Company, DTC, the Agents or the
purchaser shall be made only to the extent that funds are
provided to the Trustee or Chase for such purpose.
AUTHENTICITY OF The Company will cause the Trustee to furnish the Agents
SIGNATURES: from time to time with the specimen signatures of each of
the Trustee's officers, employees or agents who has been
authorized by the Trustee to authenticate Book-Entry Notes,
but neither Chase nor any Agent will have any obligation or
liability to the Company or the Trustee in respect of the
authenticity of the signature of any officer, employee or
agent of the Company or the Trustee on any Book-Entry Note.
PAYMENT OF Each Agent shall forward to the Company, on a monthly basis,
EXPENSES: a statement of the out-of-pocket expenses incurred by such
Agent during that month that are
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reimbursable to it pursuant to the terms of the Agency
Agreement. The Company will remit payment to the Agents
currently on a monthly basis.
PERIODIC Upon the request of the Company, Chase will send to the
STATEMENTS FROM Company a statement setting forth the principal amount of
CHASE: Book-Entry Notes Outstanding as of that date and setting
forth a brief description of any sales of Book-Entry Notes
of which the Company has advised Chase but which have not
yet been settled.
PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
------------------------------------------------
The Trustee will serve as registrar and transfer agent and
authenticating and paying agent in connection with the Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as of the
date of settlement and authenticated by the Trustee. Each
Certificated Note will bear an Original Issue Date, which
will be (i) with respect to an original Certificated Note
(or any portion thereof), its original issuance date (which
will be the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
Original Issue Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully registered
form without coupons.
TRANSFER AND A Certificated Note may be presented for transfer or
EXCHANGES: exchange at the
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32
office of the Trustee at Attn:
The Chase Manhattan Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
authorized denominations without service charge.
Certificated Notes will not be exchangeable for Book-Entry
Notes.
MATURITIES: Each Certificated Note will mature on a date not less than 9
months after the date of delivery by the Company of such
Certificated Note (the "Closing Date").
DENOMINATIONS: The denomination of any Certificated Note denominated in
U.S. dollars will be a minimum of $1,000 or any amount in
excess thereof that is an integral multiple of $1,000.
INTEREST: GENERAL. Interest, if any, on each Certificated Note will
accrue from the original issue date for the first interest
period or the last date to which interest has been paid, if
any, for each subsequent interest period, and will be
calculated and paid in the manner described in such Note and
in the Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Certificated Note will include interest
accrued to but excluding the Interest Payment Date or to but
excluding Maturity, other than a Maturity of a Fixed Rate
Certificated Note occurring on the 31st day of a month, in
which case such payment of interest will include interest
accrued to but excluding the 30th day of such month, or to
but excluding the date of Redemption.
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RECORD DATES. The Record Date with respect to any Interest
Payment Date shall be the date 15 calendar days immediately
preceding such Interest Payment Date whether or not such
date shall be a Business Day.
FIXED RATE CERTIFICATED NOTES. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes will be made
semiannually on May 1 and November 1 of each year and at
Maturity or upon Redemption; PROVIDED, HOWEVER, that in the
case of a Fixed Rate Certificated Note issued between a
Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following
the next succeeding Record Date. If any Interest Payment
Date for or the date of Maturity or Redemption of a Fixed
Rate Certificated Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such payment
for the period from and after such Interest Payment Date or
Maturity or Redemption, as the case may be.
FLOATING RATE CERTIFICATED NOTES. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually or as specified in the applicable
Pricing Supplement. Interest will be payable, in the case of
Floating Rate Certificated Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semiannual Interest Payment Period, on the third Wednesday
of the two months specified pursuant to Settlement Procedure
"A" below; and
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with an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below; PROVIDED, HOWEVER, that if any Interest
Payment Date for a Floating Rate Certificated Note would
otherwise be a day that is not a Business Day with respect
to such Floating Rate Certificated Note, such Interest
Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note, except in
the case of a Floating Rate Certificated Note for which the
Base Rate is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day; and PROVIDED
FURTHER, that in the case of a Floating Rate Certificated
Note issued between a Record Date and an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Record
Date.
CALCULATION OF FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
INTEREST: Certificated Notes (including interest for partial periods)
will be calculated on the basis of a 360-day year or twelve
30-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on Floating
Rate Certificated Notes will be determined as set forth in
the form of Notes. Interest on Floating Rate Certificated
Notes, except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and a year of
360 days, except that in the case of a Floating Rate
Certificated Note for which the Base Rate is the Treasury
Rate, interest will be calculated on the basis of the actual
number of days in the year.
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35
PAYMENTS OF The Trustee or Paying Agent, as the case may be, will pay
PRINCIPAL AND the principal amount of each Certificated Note at Maturity
INTEREST: upon presentation of such Certificated Note to the Trustee
or Paying Agent, as the case may be. Such payment, together
with payment of interest due at Maturity of such
Certificated Note, will be made in funds available for
immediate use by the Trustee and in turn by the Holder of
such Certificated Note. Certificated Notes presented to the
Trustee at Maturity for payment will be canceled by the
Trustee in accordance with the Indenture. All interest
payments on a Certificated Note (other than interest due at
Maturity) will be made by check drawn on the Trustee, the
Paying Agent, as the case may be, or another Person
appointed by the Trustee, mailed by the Trustee to the
Person entitled thereto as provided in such Note and the
Indenture; PROVIDED, HOWEVER, that the holder of $10,000,000
or more of the Certificated Notes with similar tenor and
terms will be entitled to receive such payment by wire
transfer in U.S. dollars, but only if the Trustee, or the
Paying Agent, as the case may be, shall have received
appropriate payment instructions in writing fifteen calendar
days prior to any Interest Payment Date. Within 10 days
after each Record Date, the Trustee will furnish the Company
with a list of interest payments to be made on the following
Interest Payment Date for each Certificated Note and in
total for all Certificated Notes to the extent
ascertainable. The Trustee will provide monthly to the
Company lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing in
the next month. The Company will provide to the Trustee not
later than any payment date sufficient moneys to pay in full
all principal and interest
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36
payments due on the payment date. The Trustee shall make all
such payments in accordance with the terms of the Notes.
The Trustee will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If the Maturity or Redemption of a Certificated Note is not
a Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment date for the period from and after
such Maturity or date of Redemption, as the case may be.
PROCEDURES UPON COMPANY NOTICE TO TRUSTEE REGARDING EXERCISE OF OPTIONAL
COMPANY'S RESET. Not less than 50 or more than 60 days before an
EXERCISE OF Optional Reset Date as set forth in a Certificated Note, the
OPTIONAL RESET OR Company will notify the Trustee whether it is exercising its
OPTIONAL option to reset the Interest Rate or Spread or Spread
EXTENSION OF Multiplier, as the case may be, for such Certificated Note,
MATURITY: and if so, (i) the new Interest Rate or Spread or Spread
Multiplier, as the case may be, for such Certificated Note
during the period from such Optional Reset Date to the next
Optional Reset Date as set forth in such Certificated Note
or, if there is no such next Optional Reset Date, to the
Maturity Date of such Certificated Note (the "Subsequent
Interest Period"); and (ii) the provisions, if any, for
redemption of such Certificated Note during such Subsequent
Interest Period, including the date or dates on which or the
period or periods during which such redemption may occur
during such Subsequent Interest Period.
COMPANY NOTICE TO TRUSTEE REGARDING EXERCISE OF OPTIONAL
EXTENSION OF
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37
MATURITY. If the Company elects to exercise an option, as
set forth in a Certificated Note, to extend the Maturity
Date of such Note, it will so notify the Trustee no less
than 50 or more than 60 days before the Maturity Date of
such Certificated Note, and will further indicate (i) the
new Maturity Date; (ii) the Interest Rate or Spread or
Spread Multiplier, as the case may be applicable to such
extension period, and (iii) the provisions, if any, for
redemption of such Certificated Note during such extension
period, including the date or dates on which or the period
or periods during which such redemption may occur during
such extension period.
TRUSTEE NOTICE TO HOLDERS REGARDING COMPANY'S EXERCISE OF
OPTIONAL EXTENSION OR RESET. Upon receipt of notice from the
Company regarding the Company's exercise of either an
optional extension of maturity or an optional reset, the
Trustee will mail a notice, first class, postage prepaid, to
the Holder not less than 40 days before the Optional Reset
Date (in which case a "Reset Notice") or the old Maturity
Date (in which case an "Extension Notice"), as the case may
be, which Reset Notice or Extension Notice shall contain the
information required by the terms of the Certificated Note.
TRUSTEE NOTICE TO COMPANY REGARDING OPTION TO BE REPAID. If,
after receipt of either a Reset Notice or an Extension
Notice, any Holder of a Certificated Note exercises the
option for repayment by tendering the Certificated Note to
be repaid as set forth in the Certificated Note, the Trustee
shall give notice to the Company not less than 22 days
before the Optional Reset Date or the old Maturity Date, as
the case may be, of the principal amount of Certificated
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38
Notes to be repaid on such Optional Reset Date or old
Maturity Date, as the case may be.
COMPANY NOTICE REGARDING NEW INTEREST RATE OR NEW SPREAD OR
SPREAD MULTIPLIER. If the Company elects to revoke the
Interest Rate or Spread or Spread Multiplier and establish a
higher interest rate or Spread or Spread Multiplier for an
Optional Reset Period or extension period, as the case may
be, it shall, not less than 20 days before such Optional
Reset Date or old Maturity Date, so notify the Trustee. The
Trustee will immediately thereafter notify the Holder of
such Certificated Note, by first class mail, postage prepaid
of the new Interest Rate or Spread or Spread Multiplier
applicable to such Certificated Note.
TRUSTEE NOTICE TO COMPANY REGARDING HOLDERS REVOCATION OF
OPTION TO BE REPAID. If, after the Holder has tendered any
Certificated Notes for repayment pursuant to an Extension
Notice or an Optional Reset Notice, such Holder then revokes
such tender for repayment, the Trustee shall give notice to
the Company not less than five days prior to the old
Maturity Date or Optional Reset Date, as the case may be, of
such revocation and of the principal amount of Certificated
Notes for which tender for repayment has been revoked.
DEPOSIT OF REPAYMENT PRICE. On or before any old Maturity
Date where the Maturity has been extended, and on or before
an Optional Reset Date, the Company shall deposit with the
Trustee an amount of money sufficient to pay the principal
amount, plus interest accrued to such old Maturity Date or
Optional Reset Date, as the case may be, for all the
Certificated Notes or portions thereof which are to be
repaid on such old Maturity
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39
Date or Optional Reset Date, as the case may be. Such
Trustee will use such money to repay such Certificated Notes
pursuant to the terms set forth in such Notes.
PROCEDURES UPON COMPANY NOTICE TO TRUSTEE REGARDING EXERCISE OF OPTIONAL
COMPANY'S REDEMPTION. At least 45 days prior to the date on which it
EXERCISE OF intends to redeem a Certificated Note, the Company will
OPTIONAL notify the Trustee that it is exercising such option with
REDEMPTION: respect to such Certificated Note on such date.
TRUSTEE NOTICE TO HOLDERS REGARDING COMPANY'S EXERCISE OF
OPTIONAL REDEMPTION. After receipt of notice that the
Company is exercising its option to redeem a Certificated
Note, the Trustee will, at least 30 days before the
redemption date for such Certificated Note, mail a notice,
first class, postage prepaid, to the Holder of such
Certificated Note informing such Holder of the Company's
exercise of such option with respect to such Certificated
Note.
DEPOSIT OF REDEMPTION PRICE. On or before any redemption
date, the Company shall deposit with such Trustee an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for all the
Certificated Notes or portions thereof which are to be
repaid on such redemption date. Such Trustee will use such
money to repay such Certificated Notes pursuant to the terms
set forth in such Notes.
PAYMENTS OF TRUSTEE NOTICE TO COMPANY OF OPTION TO BE REPAID. Upon
PRINCIPAL AND receipt of notice of exercise of the option for repayment
INTEREST UPON and the Certificated Notes so to be repaid as set forth in
EXERCISE OF such Notes, the Trustee shall (unless such notice was
OPTIONAL received pursuant to the
REPAYMENT (EXCEPT
PURSUANT TO
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COMPANY'S Company's exercise of an optional reset or an optional
EXERCISE OF extension of maturity, in each of which cases the relevant
OPTIONAL RESET OF procedures set forth above are to be followed) give notice
OPTIONAL to the Company not less than 20 days prior to each Optional
EXTENSION): Repayment Date of such Optional Repayment Date and of the
principal amount of Certificated Notes to be repaid on such
Optional Repayment Date.
DEPOSIT OF REPAYMENT PRICE. On or prior to any Optional
Repayment Date, the Company shall deposit with such Trustee
an amount of money sufficient to pay the optional repayment
price, and accrued interest thereon to such date, of all the
Certificated Notes or portions thereof which are to be
repaid on such date. Such Trustee will use such money to
repay such Certificated Notes pursuant to the terms set
forth in such Notes.
PROCEDURE FOR The Company and the Agents will discuss from time to time
RATE SETTING AND the aggregate principal amount of, the issuance price of,
POSTING: and the interest rates to be borne by Certificated Notes
that may be sold as a result of the solicitation of offers
by the Agents. If the Company decides to set prices of, and
rates borne by, any Notes in respect of which the Agents are
to solicit orders (the setting of such prices and rates to
be referred to herein as "posting") or if the Company
decides to change prices or rates previously posted by it,
it will promptly advise the Agents of the prices and rates
to be posted.
ACCEPTANCE AND Each Agent will promptly advise the Company of any offers to
REJECTION OF purchase Certificated Notes received by such Agent.
OFFERS:
The Company will have the sole right to accept any such
offer to purchase
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41
Certificated Notes. The Company may reject any such offer in
whole or in part.
Each Agent may, in its discretion reasonably exercised,
reject any offer to purchase Certificated Notes received by
it in whole or in part.
PREPARATION OF If any offer to purchase a Certificated Note is accepted by
PRICING the Company, the Company, with the approval of the
SUPPLEMENT: Presenting Agent, will prepare a Pricing Supplement
reflecting the terms of such Certificated Note and will
arrange to have 10 copies thereof filed with the Commission
in accordance with the applicable paragraph of Rule 424(b)
under the Act and will supply at least 10 copies thereof (or
additional copies if requested) to the Presenting Agent and
one copy to the Trustee. The Presenting Agent will cause a
Pricing Supplement to be delivered to the purchaser of the
Certificated Note.
The copies of the Pricing Supplement to be sent to the
Presenting Agent shall be sent by telecopy or overnight
courier to arrive no later than 11:00 a.m., New York City
time, on the business day following the sale date and shall
be sent to:
(a) if to Salomon Brothers Inc, to it at:
Salomon Brothers Inc
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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42
(b) if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., to it at:
(i) for overnight, express or
special delivery packages:
Tritech Services
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Prospectus Operations/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
(ii) for all other types of
deliveries:
Tritech Services
#▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Prospectus Operations/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇/2776
and, in each case, please send a
copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
World Financial Center
North Tower
10th Floor
New York, NY 10281
Attn: MTN Product Management
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the Presenting Agent may
specify. Receipt of all telecopy transmissions shall be
confirmed by telephone.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements and the Prospectuses to which they are attached
(other than
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those retained for files) will be destroyed.
SUSPENSION OF The Company reserves the right, in its sole discretion, to
SOLICITATION; instruct the Agents to suspend at any time, for any period
AMENDMENT OR of time or permanently, the solicitation of offers to
SUPPLEMENT OF purchase Certificated Notes. Upon receipt of such
PROSPECTUS: instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Certificated
Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus (except for a
supplement relating to an offering of securities other than
the Notes), it will promptly advise the Agents and the
Trustee and will furnish the Agents and the Trustee with the
proposed amendment or supplement and with such certificates
and opinions as are required, all to the extent required by
and in accordance with the terms of the Agency Agreement.
Subject to the provisions of the Agency Agreement, the
Company will mail to the Commission for filing therewith any
supplement to the Prospectus relating to the Notes, provide
the Agents and the Trustee with copies of any such
supplement and confirm to the Agents that such supplement
has been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
In the event that at the time the Company suspends
solicitation of offers to purchase Certificated Notes there
shall be any outstanding offers to purchase Certificated
Notes that have been accepted by the Company but for which
settlement has not yet occurred, the Company will promptly
advise the Agents and the Trustee
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whether such sales may be settled and whether copies of the
Prospectus as supplemented to the time of the suspension may
be delivered in connection with the settlement of such
sales. The Company will have the sole responsibility for
such decision and for any arrangements which may be made in
the event that the Company determines that such sales may
not be settled or that copies of such Prospectus may not be
so delivered.
PROCEDURE FOR When the Company has determined to change the interest rates
RATE CHANGES: of Certificated Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend
solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the Agents of
the new interest rates, the Agents may resume solicitation
of orders. Until such time, only "indication of interest"
may be recorded.
DELIVERY OF A copy of the Prospectus and Pricing Supplement relating to
PROSPECTUS: a Certificated Note must accompany or precede the earliest
of any written offer of such Certificated Note, confirmation
of the purchase of such Certificated Note and payment for
such Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is received by
the Agents between the time an order for a Certificated Note
is placed and the time written confirmation thereof is sent
by the Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the
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45
Presenting Agent will deliver a Prospectus and Pricing
Supplement as herein described with respect to each
Certificated Note sold by it. The Company will make such
delivery of such Certificated Note if sold directly by the
Company to a purchaser (other than an Agent).
CONFIRMATION: For each offer to purchase a Certificated Note solicited by
an Agent and accepted by the Company, the Presenting Agent
will issue a confirmation to the purchaser, with a copy to
the Company, setting forth the details set forth below and
delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of
such Certificated Note against receipt of immediately
available funds shall, with respect to such Certificated
Note, constitute "settlement". The Closing Date with respect
to any offer to purchase Certificated Notes accepted by the
Company will be a date on or before the third Business Day
next succeeding the date of acceptance unless otherwise
agreed by the purchaser and the Company and shall be
specified upon acceptance of such offer (but shall be no
earlier than the next Business Day following the date of
acceptance). The Company will instruct the Trustee to effect
delivery of each Certificated Note no later than 1:00 P.M.,
New York City time, on the Closing Date to the Presenting
Agent for delivery to the purchaser.
DETAILS FOR For each offer to purchase a Certificated Note that is
SETTLEMENT: accepted by the Company, the Presenting Agent will provide
(unless provided by the purchaser directly to the Company)
by
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46
telephone the following information
to the Company:
1. Exact name of registered
owner.
2. Exact address of registered owner
and address for payment of
principal and interest.
3. Taxpayer identification number
of registered owner.
4. Principal amount of the
Certificated Note.
5. In the case of a Fixed Rate
Certificated Note, the
interest rate or, in the
case of a Floating Rate
Certificated Note, the
initial interest rate (if
known at such time), Base
Rate, Index Maturity,
Interest Reset Period,
Interest Reset Dates,
Spread or Spread Multiplier
(if any), minimum interest
rate (if any) and maximum
interest rate (if any).
6. Issuance price (including
currency) of the Certificated Note.
7. Trade or Settlement dates.
8. Maturity Date and, if
applicable, the Extension
Period and Final Maturity
Date.
9. Interest Payment Dates and
the Interest Payment
Period.
10. Whether such Certificated
Note is issued at an original
issue discount and, if so, the
total amount of OID, the yield
to maturity and the initial
accrual period OID.
11. Optional Reset Dates, if
any.
12. Redemption provisions, if any.
13. Repayment or sinking fund
provisions, if any.
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14. Presenting Agent's commission,
determined as provided in
Section 2 of the Agency Agreement,
to be paid in the form of a
discount upon settlement.
15. Any other applicable terms.
The Presenting Agent will advise the Company by telephone,
confirmed in writing of the foregoing information (unless
provided by the purchaser directly to the Company) for each
offer to purchase a Certificated Note solicited by such
Agent and accepted by the Company in time for the Trustee to
prepare and authenticate the required Certificated Note.
Before accepting any offer to purchase a Certificated Note
to be settled in less than three Business Days, the Company
shall verify that the Trustee will have adequate time to
prepare and authenticate such Certificated Note.
After receiving from the Presenting Agent the detail for
each offer to purchase a Certificated Note that has been
accepted by the Company, the Company will, after recording
the details and any necessary calculations, provide
appropriate documentation to the Trustee, including the
information provided by the Presenting Agent necessary for
the preparation and authentication of such Certificated Note
by no later than 10:00 A.M. on the Business Day next
preceding the Closing Date. Prior to preparing the
Certificated Note for delivery (but in any case no later
than 10:00 A.M. on the Business Day next preceding the
Closing Date therefor), the Trustee will confirm the details
of such issue with the Presenting Agent by telephone.
NOTE DELIVERIES Upon receipt of appropriate documentation and instructions,
AND CASH PAYMENT: the
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48
Company will cause the Trustee to prepare and authenticate
the pre-printed 4-ply Certificated Note packet containing
the following documents in forms approved by the Company,
the Presenting Agent and the Trustee:
1. Certificated Note with customer
receipt.
2. Stub 1 - For the Presenting
Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be authenticated on the Closing
Date therefor. The Trustee will authenticate each
Certificated Note and deliver it to the Presenting Agent
(and deliver the stubs as indicated above), all in
accordance with written instructions (or oral instructions
confirmed in writing (which may be given by telex or
telecopy) on the next Business Day) from the Company.
Delivery by the Trustee of each Certificated Note will be
made upon confirmation from the Company that it has received
payment therefor (provided that the Company shall have
previously notified the Presenting Agent that delivery will
not occur until such confirmation).
Upon verification ("Verification") by the Presenting Agent
that a Note has been prepared and properly authenticated by
the Trustee and registered in the name of the purchaser in
the proper principal amount and other terms in accordance
with the aforementioned written instructions or
confirmation, payment will be made to the Company by the
Presenting Agent the same day as the Presenting Agent's
receipt of the Certificated Note in immediately available
funds. Such payment shall be made by the Presenting Agent
81
49
(i) only upon prior receipt by the Presenting Agent of
immediately available funds from or on behalf of the
purchaser unless the Presenting Agent decides, at its
option, to advance its own funds for such payment against
subsequent receipt of funds from the purchaser and (ii) only
after the Trustee has made the Certificated Note available
for inspection by the Presenting Agent.
Upon delivery of a Certificated Note to the Presenting
Agent, Verification by the Presenting Agent and the giving
of instructions for payment, the Presenting Agent shall
promptly deliver such Note to the purchaser.
In the event any Certificated Note is incorrectly prepared,
the Trustee shall promptly issue a replacement Certificated
Note in exchange for the incorrectly prepared Certificated
Note.
FAILURE If the Presenting Agent, at its own option, has
TO SETTLE: advanced its own funds for payment against subsequent
receipt of funds from the purchaser, and if the purchaser
shall fail to make payment for the Certificated Note on the
Closing Date therefor, the Presenting Agent will promptly
notify the Trustee and the Company by telephone, promptly
confirmed in writing (but no later than the next Business
Day). In such event, the Company shall promptly provide the
Trustee with appropriate documentation and instructions
consistent with these procedures for the return of the
Certificated Note to the Trustee and the Presenting Agent
will promptly return such Note to the Trustee. Upon (i)
confirmation from the Trustee in writing (which may be given
by telex or telecopy) that the Trustee has received such
Note and (ii) confirmation from the Presenting
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50
Agent in writing (which may be given by telex or telecopy)
that the Presenting Agent has not received payment from the
purchaser (the matters referred to in clauses (i) and (ii)
are referred to hereinafter as the "Confirmations"), the
Company will promptly pay to the Presenting Agent an amount
in immediately available funds equal to the amount
previously paid by the Presenting Agent in respect of such
Certificated Note. Assuming receipt of the Certificated Note
by the Trustee and of the Confirmations by the Company, such
payment will be made on the Closing Date, if reasonably
practical, and in any event not later than the Business Day
following the date of receipt of the Certificated Note and
Confirmations. If a purchaser shall fail to make payment for
the Certificated Note for any reason other than the failure
of the Presenting Agent to provide the necessary information
to the Company as described above for settlement or to
provide a confirmation to the purchaser within a reasonable
period of time as described above or otherwise to satisfy
its obligation hereunder or in the Agency Agreement, and if
the Presenting Agent shall have otherwise complied with its
obligations hereunder and in the Agency Agreement, the
Company will reimburse the Presenting Agent on an equitable
basis for its loss of the use of funds during the period
when they were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in respect
of which the failure occurred, the Trustee will cancel such
Certificated Note, make appropriate entries in its records
and dispose of the Certificated Note in accordance with its
customary procedures; and upon such action, the Certificated
Note
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51
will be deemed not to have been issued, authenticated and
delivered.
TRUSTEE NOT TO Nothing herein shall be deemed to require the Trustee to
RISK FUNDS: risk or expend its own funds in connection with any payment
to the Company, the Agents or the purchaser, it being
understood by all parties that payments made by the Trustee
to either the Company or the Agents shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
AUTHENTICITY OF The Company will cause the Trustee to furnish the Agents
SIGNATURES: from time to time with the specimen signatures of each of
the Trustee's officers, employees or agents who has been
authorized by the Trustee to authenticate Certificated Notes
but the Agents will have no obligation or liability to the
Company or the Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the Company
or the Trustee on any Certificated Note.
PAYMENT OF Each Agent shall forward to the Company, on a monthly basis,
EXPENSES: a statement of the out-of-pocket expenses incurred by such
Agent during that month which are reimbursable to it
pursuant to the terms of the Agency Agreement. The Company
will remit payment to the Agents currently on a monthly
basis.
PERIODIC Upon the request of the Company, the Trustee will send to
STATEMENTS FROM the Company a statement setting forth the principal amount
CHASE: of Certificated Notes Outstanding as of that date and
setting forth a brief description of any sales of
Certificated Notes of which the Company has advised the
Trustee but which have not yet been settled.
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52
85
EXHIBIT B
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
Medium Term Notes, Series B
Due 9 Months or More From Date of Issue
TERMS AGREEMENT
, 199
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Cleveland, Ohio 44115
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated , 1997, among Salomon Brothers Inc,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and you, the undersigned agrees to purchase the following
Notes of The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company:
Principal Amount of each Note:
Aggregate Principal Amount of all Notes:
Specified Currency and Minimum Denominations (if Specified
Currency is other than U.S. dollars):
Maturity Date:
Interest Payment Dates:
Interest Rate or Method of Determining:
Record Date:
Interest Reset Dates:
Total Amount of OID:
Initial Redemption Date:
Purchase Price: % of Principal Amount [plus accrued
interest from , 19 ]
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2
Closing 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:
Period during which additional Notes may
not be sold pursuant to Section 4(m) of
the Agreement:
Registration Statements:
$_______ of such Notes are
registered under
Registration Statement
No. 333-
Salomon Brothers Inc,
By:
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▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated,
By:
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Accepted:
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
By:
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