DRAFT
WSP&R
1/10/96
PACIFIC TELECOM, INC.
U.S. $200,000,000
Medium-Term Notes, Series C
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
------------------------
Dated [_____], 1996
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center, North Tower
New York, New York 10281
Ladies and Gentlemen:
Pacific Telecom, Inc., a Washington corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale
by the Company of up to U.S. $200,000,000 (or the equivalent thereof in
other currencies) aggregate principal amount of its
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Medium-Term Notes, Series C (the "Notes"). The Notes will be offered at
varying maturities of nine months or more from their dates of issue. The
Notes will be issued under an Indenture dated as of September 20, 1991, as
amended and supplemented, between The First National Bank of Chicago, as
trustee (the "Trustee"), and the Company (the "Indenture"). The Notes will
be issued in minimum denominations of U.S. $1,000 and in denominations
exceeding such amount by integral multiples of U.S. $1,000, will be issued
only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement to
the Prospectus (as defined in Section 1(i) hereof). The Notes will be
issued, and the terms thereof established, in accordance with the Indenture
and, in the case of Notes sold pursuant to Section 2(a) hereof, the
Medium-Term Notes Administrative Procedures attached as Exhibit A hereto
(the "Procedures"). The Procedures may only be amended by written agreement
of the Company and you after notice to, and with the approval of, the
Trustee. If the Company determines that it shall offer Notes denominated in
a foreign currency or currency unit, the Company and you agree that an
amendment to the Procedures (which shall be substantially in the form of
Exhibit B hereto) shall be entered into that shall contain modifications
mutually acceptable to the Company and you. For the purposes of this
Agreement, the term "Agent" shall mean any of you acting solely in the
capacity as agent for the Company pursuant to Section 2(a) hereof and not
as principal (collectively, the "Agents"), the term "Purchaser" shall mean
any one of you acting solely as principal pursuant to Section 2(b) hereof
and not as agent, and the term "you" shall mean you collectively whether or
not at any time any of you is acting in both such capacities or in either
such capacity.
Section 1. Representations and Warranties. The Company represents
and warrants to, and agrees with, you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (i) 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: 33-[_____]),
including a prospectus, which has become effective, for the
registration under the Act of U.S. $200,000,000 aggregate principal
amount of debt securities (the "Securities"), including the Notes.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in paragraph (a)(1)(ix) or (a)(1)(x)
of Rule 415 and complies in all other material respects with Rule 415.
The Company has included in such registration statement, or has filed
or will file with the Commission pursuant to the applicable paragraph
of Rule 424(b), 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) further amendments
or supplements to the Prospectus Supplement specifying the interest
rates, maturity dates and, if appropriate, other terms of the Notes
sold pursuant hereto or describing the offering thereof (each such
amendment or supplement, a "Pricing Supplement").
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(b) On the Effective Date, as of the Execution Time, when any
supplement to the Prospectus is filed with the Commission, as of the
date of any Terms Agreement (as defined in Section 2(b) hereof) and at
the date of delivery by the Company to you 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 did, does and will, as the case may be, comply
in all material respects with the requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the respective rules thereunder; (ii) the Registration Statement, as
amended as of any such time, did not, does not and will not, as the
case may be, contain an untrue statement of a material fact or omit to
state a 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, did not, does not and
will not, as the case may be, include an 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 (A) that part of
the Registration Statement that shall constitute the Statement of
Eligibility on Form T-1 under the Trust Indenture Act of the Trustee
or (B) the information contained in or omitted from the Registration
Statement or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with information furnished in
writing to the Company by any of you specifically for inclusion in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally or by
equitable principles affecting the availability of remedies, and such
Notes will have been duly authorized, executed, authenticated and,
when paid for by the purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture, except as limited by bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors' rights generally
or by equitable principles affecting the availability of remedies.
(d) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial condition and
operations of the Company at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved except as otherwise indicated in the Prospectus; and Deloitte
& Touche LLP, who examined the audited financial statements, are
independent public accountants as required by the Act and the rules
thereunder.
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(e) Except as reflected in, or contemplated by, the Registration
Statement and the Prospectus, as they may be amended or supplemented,
since the respective most recent dates as of which information is
given in the Registration Statement and the Prospectus, as so amended
or supplemented, there has not been any material adverse change in the
business, affairs, business prospects, property or financial condition
of the Company, whether or not arising in the ordinary course of
business, and since such dates there has not been any material
transaction entered into by the Company other than transactions
contemplated by the Registration Statement and the Prospectus, as so
amended or supplemented, and transactions in the ordinary course of
business; and the Company has no material contingent obligation that
is not disclosed in the Registration Statement and the Prospectus, as
they may be amended or supplemented.
(f) The Company is not in violation of its Restated Articles of
Incorporation, as amended, or Bylaws, as amended, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, agreement or other
instrument to which it is a party or by which it may be bound, the
effect of which, singly or in the aggregate, is material to the
Company, and neither the execution or delivery of this Agreement or
any Terms Agreement, the consummation of the transactions herein or
therein contemplated, the fulfillment of the terms hereof or thereof,
nor compliance with the terms and provisions hereof or thereof will
conflict with, or result in a breach of, or constitute a default under
(i) such Restated Articles of Incorporation or Bylaws, or any
contract, agreement or other instrument to which the Company is a
party or by which it may be bound or (ii) any order, rule or
regulation applicable to the Company of any court or any federal or
state governmental body having jurisdiction over the Company or over
its properties, the effect of which, singly or in the aggregate, is
material to the Company.
(g) This Agreement has been, and any Terms Agreement will be,
duly authorized, executed and delivered by the Company and this
Agreement is, and any such Terms Agreement will be, a legal, valid and
binding agreement of the Company enforceable against the Company,
except as limited by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally or by
equitable principles affecting the availability of remedies and
subject to any principles of public policy limiting the right to
enforce the indemnification and contribution provisions contained
herein.
(h) The statements made in the Prospectus within the coverage of
Rule 175(b) under the Act were made by the Company with a reasonable
basis and in good faith.
(i) The terms that follow, when used in this Agreement, shall
have the meanings indicated: "Effective Date" shall mean, at any time,
the later of (i) the date that the Registration Statement or any post-
effective amendment or amendments thereto became or become effective
(the "Initial Effective Date") and (ii) the date that the Company's
Annual Report on Form 10-K for its most recently completed fiscal year
was
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or is filed with the Commission under the Exchange Act, in each
case at such time; "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the Company and the
Agents; "Basic Prospectus" shall mean the form of prospectus relating
to the Securities contained in the Registration Statement at the
Effective Date; "Prospectus" shall mean the Basic Prospectus as
amended or supplemented, including by the Prospectus Supplement or any
Pricing Supplement; "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
exhibits and financial statements thereto, as amended at the Execution
Time; and "Rule 415" and "Rule 424(b)" shall mean such rules under the
Act. Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act that were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Prospectus; and any
reference herein to the terms "amend," "amended," "amendment" or
"supplement" or "supplemented" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include any document filed
under the Exchange Act after, in the case of the Registration
Statement, the Initial Effective Date and, in the case of the
Prospectus, the issue date thereof and deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Act
(together with such documents filed on or before the Effective Date or
issue date, as the case may be, "Incorporated Documents").
Section 2. Solicitations as Agent; Purchases as Principal.
(a) Appointment of Agents; Solicitation by the Agents of Offers
to Purchase. Subject to the terms and conditions set forth herein, the
Company hereby authorizes each of the Agents to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties and subject to
the terms and conditions set forth herein, each of the Agents agrees, as
agent of the Company, to use its reasonable best efforts to solicit offers
to purchase the Notes from the Company upon the terms and conditions set
forth in the Prospectus (and any amendment or supplement thereto) and in
the Procedures. In soliciting offers as agents, each Agent is acting
individually, and not jointly, solely as agent of the Company and not as
principal. Each Agent shall use its reasonable best 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) hereof,
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 for its own account as Purchaser pursuant to Section
2(b) hereof or otherwise.
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The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon receipt
of instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time
as the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of such
Notes sold by the Company. Such commission shall be payable as specified in
the Procedures.
Subject to the provisions of this Section 2(a) and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent
as agent of the Company at such time and in such amounts as such Agent
deems advisable. The Company may from time to time offer and sell Notes
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect, (i) the Company shall not solicit offers to
purchase Notes through any agent without (A) amending this Agreement to
appoint such agent as an additional Agent hereunder on the same terms and
conditions as provided herein for the Agents and (B) giving the Agents
prior notice of such appointment and (ii) the Company may accept any offer
to purchase Notes through any agent other than an Agent, provided that (A)
the Company shall not have solicited such offer, (B) the Company and such
agent shall have entered into an agreement with respect to such purchase
having terms and conditions (including, without limitation, any commissions
with respect thereto) in substance identical to the terms and conditions
that would apply to such purchase under this Agreement if such agent were
an Agent hereunder, which may be effected by incorporating the terms and
conditions of this Agreement by reference into such agreement in the form
of Exhibit C hereto, and (C) the Company shall provide the Agents with
notice of such offer to purchase, together with a copy of such agreement,
promptly following the acceptance thereof.
If the Company shall default in its obligations to deliver Notes
to a purchaser whose offer it has accepted, the Company shall hold each of
you harmless against any loss, claim or damage arising from or as a result
of such default.
(b) Sales of Notes to a Purchaser. Subject to the terms and
conditions stated herein, whenever the Company and one of you determines
that the Company shall sell Notes directly to you as Purchaser, each such
sale of Notes shall be made in accordance with the terms of this Agreement
and, if requested by such Agent, any supplemental agreement relating
thereto between the Company and the Purchaser. Each such supplemental
agreement (which may be an oral agreement confirmed in writing (including
facsimile transmission), so long as such oral agreement and written
confirmation contain all the information, as applicable, specified in
Exhibit D hereto) is herein referred to as a "Terms Agreement" and, if
written (or if a written confirmation of any such oral agreement), shall be
substantially in the form of Exhibit D hereto. The Purchaser's commitment
to purchase Notes pursuant to any Terms Agreement shall be
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deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth except as otherwise may be set forth therein.
Each Terms Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto, specify the principal amount of such Notes, the price to
be paid to the Company for such Notes, the rate at which interest will be
paid on the Notes, the Closing Date for such Notes, the place of delivery
of the Notes and payment therefor, the method of payment and any
modification of the requirements for the delivery of the opinions of
counsel, the certificate from the Company and the letter from the Company's
independent public accountants, pursuant to Sections 5(d), 5(e), 5(f) and
5(g), respectively, hereof. In connection with the resale of any Notes, the
Purchaser thereof may utilize a selling or dealer group and may reallow to
any broker or dealer any portion of the discount or commission payable
pursuant hereto. Such Terms Agreement shall also specify the period of time
referred to in Section 4(l) hereof.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made as agreed to between the
Company and the Purchaser as set forth in such Terms Agreement, not later
than the Closing Date set forth in such Terms Agreement, against payment of
funds to the Company in the net amount due to the Company for such Notes by
the method and in the form set forth in such Terms Agreement. If a Terms
Agreement does not contain such settlement details, the settlement details
specified in the Procedures shall apply with the Purchaser filling the
roles specified therein of the Agent and the beneficial owner.
Section 3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
Section 4. Covenants of the Company. The Company covenants and
agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes purchased pursuant
to a Terms Agreement), the Company will not file any amendment or
supplement to the Registration Statement or the Prospectus (except for
an amendment or supplement to the Basic Prospectus relating to an
offering of Securities other than the Notes) unless the Company has
furnished to Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("Counsel for the
Agents") a copy for review prior to filing and will not file any such
proposed amendment or supplement to which any of you reasonably
objects; the Company will cause each such amendment or supplement
(other than any Incorporated Document) 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 Counsel
for the Agents of such filing; the Company will also furnish to
Counsel for the Agents copies of all other material press releases or
announcements to the general public relating to the financial affairs
or condition of the Company; the Company will promptly advise Counsel
for the Agents (i) when the Prospectus, and any amendment or
supplement thereto, shall have been filed with the
8
Commission pursuant to Rule 424(b), (ii) when, prior to the termination
of the offering of the Notes, any amendment or supplement to the
Registration Statement shall have been filed or become effective, (iii)
of any request by the Commission for any amendment or supplement to the
Registration Statement or 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 proceeding for such purpose;
and the Company will use its reasonable 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 in the opinion of Counsel for the Agents
a prospectus relating to the Notes is required to be delivered under
the Act and no suspension of solicitation of offers to purchase Notes
from the Company pursuant to the third paragraph of Section 2(a)
hereof or this Section 4(b) shall be in effect (any such time and any
other time when either (i) any of you as Purchaser shall own any Notes
purchased pursuant to a Terms Agreement with the intention of
reselling them or (ii) an offer to purchase any of the Notes has been
accepted by the Company but the Closing Date therefor has not
occurred, a "Marketing Period"), any event occurs as a result of which
the Prospectus as then amended and supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Registration Statement
or the Prospectus to comply with the Act, the Exchange Act or the
Trust Indenture Act or the respective rules and regulations
thereunder, the Company promptly will (A) 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 amended or supplemented), (B)
prepare and file with the Commission, subject to the first clause of
Section 4(a) hereof, an amendment or supplement that will correct such
statement or omission or effect such compliance and (C) supply any
amended or supplemented Prospectus to each of you in such quantities
as you may reasonably request; and, if such amendment or supplement,
and the certificate, legal opinion and accountant's letter delivered
to you pursuant to Sections 4(i), 4(j) and 4(k), respectively, hereof
in connection with the filing of such amendment or supplement, are
satisfactory in all respects to you and Counsel for the Agents, 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, so long as delivery of a prospectus relating to
the Notes may be required by 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 the Company will promptly
notify each of you of any written notice given to the
9
Company of any intended or potential decrease in any rating of the Notes
or any other debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
15c3-1 under the Exchange Act) 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 an earning statement or statements
of the Company and its subsidiaries that will satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
(e) The Company will furnish to each of you and Counsel for the
Agents, without charge, a signed copy of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus
relating to the Notes may be required by the Act, as many copies of
the Prospectus, including all amendments and supplements thereto and
all Incorporated Documents, as you may reasonably request.
(f) The Company will arrange for the qualification of the Notes
for sale under the laws of such jurisdictions as any of you may
reasonably designate, will maintain such qualifications in effect so
long as required for the distribution of the Notes, and will arrange
for the determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including
the fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statement and the Prospectus (including all amendments and supplements
thereto), the Indenture, this Agreement, such Terms Agreement and all
other documents relating to the offering of the Notes, the cost of
preparing, printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in compliance with
Section 4(f) hereof, the fees and disbursements of the Trustee, the
fees and disbursements of the Calculation Agent (as defined in the
Prospectus) and its counsel and the fees of any agencies that rate the
Notes, (ii) reimburse each of you on a monthly basis for all
out-of-pocket expenses (including without limitation any advertising
expenses in respect of advertising determined to be appropriate by the
Company and the Agents in accordance with the Procedures) incurred by
you in connection with this Agreement and (iii) pay the reasonable
fees and expenses of Counsel for the Agents incurred in connection
with this Agreement and the offering from time to time of the Notes.
(h) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in the most
recent certificate theretofore given to you pursuant hereto are true
and correct at the time of such acceptance, and an undertaking that
such representations and warranties will be true and correct at the
Closing Date for
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such Notes as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended or
supplemented to each such time); and 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 such Closing Date, after giving effect to the
issuance of such Notes, of any other Notes to be issued on or prior to
such Closing Date and of any other Securities to be issued and sold by
the Company on or prior to such Closing Date, the aggregate amount of
Securities (including any Notes) that have been issued and sold by the
Company will not exceed the amount of Securities registered pursuant
to the Registration Statement.
(i) During each Marketing Period, each time that the Registration
Statement or the Prospectus is amended or supplemented (other than by
(i) an amendment or supplement relating to any offering of Securities
other than the Notes, (ii) the filing of a Pricing Supplement by the
Company with the Commission under the Act or (iii) the filing of a
Current Report on Form 8-K by the Company with the Commission under
the Exchange Act that is filed solely (A) under Item 5 of Form 8-K and
not required to be filed to comply with Section 4(b) hereof or (B)
under Item 7 of Form 8-K for the purpose of filing exhibits pursuant
to Item 601 of Regulation S-K, unless in the case of clause (iii)(A)
above, in the reasonable judgment of any of you or Counsel for the
Agents, such information is of such a nature that a certificate of the
Company should be delivered), the Company will deliver or cause to be
delivered promptly to each of you a certificate of the Company, signed
by the Chairman of the Board, the President, the Executive Vice
President and Chief Financial Officer, the Vice President, Treasurer
or the Controller, dated the date of the effectiveness of or the date
of the filing with the Commission of, as the case may be, such
amendment or supplement, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 5(f) hereof
but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of such
effectiveness or filing.
(j) During each Marketing Period, each time that the Registration
Statement or the Prospectus is amended or supplemented (other than by
(i) an amendment or supplement relating to any offering of Securities
other than the Notes, (ii) the filing of a Pricing Supplement by the
Company with the Commission under the Act or (iii) the filing of a
Current Report on Form 8-K by the Company with the Commission under
the Exchange Act that is filed solely (A) under Item 5 of Form 8-K and
not required to be filed to comply with Section 4(b) hereof or (B)
under Item 7 of Form 8-K for the purpose of filing exhibits pursuant
to Item 601 of Regulation S-K, unless, in the case of this clause
(iii), in the reasonable judgment of any of you, such information is
of such a nature that an opinion of counsel should be furnished), the
Company shall furnish or cause to be furnished promptly to each of you
a written opinion of Counsel for the Company (as defined in Section
5(d) hereof) satisfactory to each of you, dated the date of the
effectiveness of or the date of the filing with the Commission of, as
the case may be, such amendment or supplement, in form satisfactory to
each of you, of the same
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tenor as the opinion referred to in paragraph (vii) of Section 5(d)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of such
effectiveness or filing or, in lieu of such opinion, Counsel for the
Company may furnish each of you with a letter to the effect that you
may rely on the last opinion furnished to you by Counsel for the
Company 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 such
effectiveness or filing).
(k) During each Marketing Period, each time that the Registration
Statement or the Prospectus is amended or supplemented to set forth
amended or supplemental financial statements or other financial
information (other than such financial information as of and for, and
derived from, a fiscal quarter of the Company contained in a Current
Report on Form 8-K filed by the Company with the Commission under the
Exchange Act, provided that such financial information shall be
included in a Quarterly Report on Form 10-Q for such fiscal quarter
filed thereafter by the Company with the Commission under the Exchange
Act, unless in the reasonable judgment of any of you or Counsel for
the Agents, such information is of such a nature that a letter of
Deloitte & Touche LLP should be furnished at the time such Form 8-K is
so filed), the Company shall cause Deloitte & Touche LLP promptly to
furnish each of you a letter, dated the date of the effectiveness of
or the date of the filing of, as the case may be, such amendment or
supplement, in form satisfactory to each of you, of the same tenor as
the letter referred to in Section 5(g) hereof with such changes as may
be necessary to reflect the amended and supplemental financial
statements and other information included or incorporated by reference
in the Registration Statement and the Prospectus, as amended or
supplemented to the time of such effectiveness of filing; 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, Deloitte &
Touche LLP may limit the scope of such letter, which shall be
satisfactory in form to each of you, to the unaudited financial
statements, the related "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included
in such amendment or supplement, unless, in the reasonable judgment of
any of you or Counsel for the Agents, such letter should cover other
information or changes in specified financial statement line items.
(l) During the period, if any, specified in any Terms Agreement,
the Company shall not, without the prior consent of the Purchaser
thereunder, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company that have terms
substantially similar to the Notes being sold pursuant to such Terms
Agreement (other than such Notes).
(m) The Company shall not use or authorize the use of any
Prospectus containing the name of any Agent in connection with sales of
Notes (i) made directly by
12
the Company to any purchaser, unless such purchaser executes and delivers
to the Company an acknowledgment substantially in the form of Exhibit E
hereto, or (ii) through any agent of the Company other than an Agent,
unless the name of such agent is contained in the Prospectus (including
any Pricing Supplement); provided, however, that, subject to the fifth
paragraph of Section 2(a) hereof, the foregoing shall not be deemed to
prevent the distribution of the Prospectus by the Company to brokers or
dealers registered under the Exchange Act who are not Agents or to
institutional investors for the purpose of generating inquiries with
respect to the Notes.
Section 5. Conditions to the Obligations of the Agents and any
Purchaser. The obligations of each Agent to solicit offers to purchase the
Notes as agent of the Company and the obligations of each Purchaser to
purchase any Notes as principal shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein
on the Effective Date, as of the Execution Time, as of the date of any
Terms Agreement, when any amendment or supplement to the Prospectus is
filed with the Commission and as of each Closing Date (in each case with
the same effect as if made at such time), to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof,
to the performance and observance by the Company of its obligations
hereunder and covenants and agreements herein contained and to the
following additional conditions (other than, in the case of any such Terms
Agreement, paragraph (h) of this Section 5):
(a) If filing of the Prospectus, or any amendment or supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such amendment or supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); 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; and the Company shall have delivered to you
a certificate of the Company signed by the Chairman of the Board, the
President, the Executive Vice President and Chief Financial Officer,
the Vice President, Treasurer or the Controller, dated the Execution
Time, of evidence of qualification of the Company to transact business
as a foreign corporation in each jurisdiction in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial condition of
the Company and its subsidiaries taken as a whole.
(b) None of you shall have discovered and disclosed to the
Company that the Registration Statement or the Prospectus contains an
untrue statement of a fact that, in the opinion of Counsel for the
Agents, is material or omits to state a fact that, in the opinion of
Counsel for the Agents, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Notes, the
Indenture, the form of the Registration Statement, the Prospectus
(other than financial statements and other
13
financial data), each such Terms Agreement and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all respects to Counsel for the Agents, and
the Company shall have furnished to Counsel for the Agents all
documents and information that it may reasonably request to enable
them to pass upon such matters.
(d) The Company shall have furnished to each of you the opinion
of Stoel Rives LLP ("Counsel for the Company"), dated the Execution
Time and, if specified in any such Terms Agreement, on the Closing
Date therefor, in form and substance satisfactory to Counsel for the
Agents, to the effect that:
(i) the Company is a duly organized and validly existing
corporation under the laws of the State of Washington;
(ii) the Company has due corporate right and corporate
authority to own its properties and to carry on the business in
which it is engaged as described in the Prospectus;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding
instrument of the Company enforceable against the Company in
accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally or by equitable
principles affecting the availability of remedies;
(iv) the Notes conform as to legal matters to the
description thereof and the statements in regard thereto
contained in the Registration Statement and the Prospectus
(subject to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof that will be
described in Pricing Supplements);
(v) the Notes have been duly authorized and, when issued in
accordance with the Board Resolution (as defined in the
Indenture) and when authenticated and delivered in accordance
with the provisions of the Indenture and paid for by the
purchasers thereof, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally or by equitable
principles affecting the availability of remedies;
(vi) to the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened against the Company or its subsidiaries
that are required to be disclosed in the Registration Statement
14
or the Prospectus other than those disclosed therein;
(vii) the Registration Statement, at the Effective Date, and
the Prospectus, at the time it was filed pursuant to Rule 424(b)
(except in each case as to the financial statements and other
financial and statistical data contained therein, upon which such
opinion need not pass and except for Incorporated Documents),
complied or complies, as the case may be, as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the respective rules and regulations
thereunder; each Incorporated Document as originally filed
pursuant to the Exchange Act (except as to financial statements
and other financial and statistical data contained therein, upon
which such opinion need not pass) complied as to form when so
filed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; the
Registration Statement has become effective under the Act and, to
the best of the knowledge of such counsel, no proceedings for a
stop order with respect thereto are threatened or pending under
Section 8 of the Act; and nothing has come to the attention of
such counsel that has caused them to believe that the
Registration Statement (except as to financial statements and
other financial and statistical data contained therein, upon
which such opinion need not pass), at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus (except as to financial statements and other financial
and statistical data contained therein, upon which such opinion
need not pass), at the time it was filed pursuant to Rule 424(b),
at the Execution Time and, in the case of such Terms Agreement,
at the Closing Date therefor, included or includes, as the case
may be, an untrue statement of a material fact or omitted or
omits, as the case may be, 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;
(viii) this Agreement and such Terms Agreement have been
duly authorized, executed and delivered by the Company;
(ix) no approval, authorization, consent or order of any
governmental body is legally required for the authorization of
the issuance and sale of the Notes by the Company pursuant to the
terms of this Agreement, except such as may be required under the
Act or under state or other securities or blue sky laws; and
(x) the sale of all or any of the Notes herein contemplated
and the fulfillment of the terms hereof will not result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other
material agreement for borrowed money the terms of which are
known to such counsel to which the Company is a party (except as
to financial covenants contained in any such instruments and
agreements, upon which such
15
opinion need not pass).
In rendering such opinion, Counsel for the Company may rely (A) as
to matters involving the application of laws of the State of New
York, upon the opinion of 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.
References to the Registration Statement and the Prospectus in
this Section 5(d) include any amendment or supplement thereto at
the date such opinion is rendered.
(e) Each of you shall have received the opinion of Counsel for
the Agents, dated the Execution Time and, if specified in any such
Terms Agreement, the Closing Date therefor, as the case may be, with
respect to the matters set forth in paragraphs (i), (iii), (iv), (v),
(vii) (except as to Incorporated Documents) and (viii) of Section 5(d)
hereof and other related matters as such of you may reasonably
require, and the Company shall have furnished to Counsel for the
Agents such documents as they request for the purpose of enabling them
to pass upon such matters. In rendering such opinion, Counsel for the
Agents may rely (A) as to matters involving the application of the
laws of Washington upon the opinion of Counsel for the Company and (B)
as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
(f) The Company shall have furnished to each of you a certificate
of the Company, signed by the Chairman of the Board, the President,
the Executive Vice President and Chief Financial Officer, the Vice
President, Treasurer or the Controller, dated the Execution Time and,
if specified in any such Terms Agreement, the Closing Date therefor,
stating that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects and,
in the case of such Terms Agreement, with the same effect as if
made on such Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation of each
of you to solicit offers to purchase the Notes or purchase the
Notes, as the case may be;
(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) such signer of such certificate has examined the
Registration Statement and the Prospectus (as they may then be
amended and supplemented) and, to the best of such signer's
knowledge, (A) the Registration Statement (as so amended and
supplemented) does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (B) the Prospectus (as so amended
16
and supplemented) does not include an 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 and (C) since the Effective Date
there has not occurred any event required to be set forth in the
Prospectus (as so amended and supplemented) that has not been so
set forth.
(g) Deloitte & Touche LLP shall have furnished to each of you a
letter or letters (which may refer to letters previously delivered to
the Agents), dated as of the Execution Time and, if specified in such
Terms Agreement, the Closing Date therefor, in form and substance
satisfactory to such of you, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective rules thereunder and stating in effect that:
(i) in their opinion, the consolidated financial statements
and schedules included or incorporated by reference in the
Registration Statement and the Prospectus and audited by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
rules and regulations thereunder;
(ii) on the basis of a reading of the unaudited consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, if any, and the latest
available interim unaudited consolidated financial statements of
the Company, if any, the performance of the procedures specified
by the American Institute of Certified Public Accountants for a
review of any such unaudited consolidated financial information
as described in Statement on Auditing Standards No. 71, inquiries
of officials of the Company responsible for financial and
accounting matters and a reading of the minutes of meetings of
the shareholders and the Company's Board of Directors through a
specified date not more than five business days prior to the date
of their letter, nothing came to their attention that caused them
to believe that: (A) any material modification should be made to
the unaudited consolidated financial statements included or
incorporated by reference in the Prospectus, if any, for them to
be in conformity with generally accepted accounting principles or
any such unaudited consolidated financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
thereunder; (B) for the period from the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus to the date of the latest available
financial statements of the Company, there were any decreases in
operating revenues, net income applicable to common stock as
compared with the comparable period of the preceding year; or (C)
at the date of the latest available interim consolidated balance
sheet read by them and at a subsequent date not more than five
business days prior to the date of such letter, there was any
change in the capital stock or long-term debt of the Company or
any decrease in
17
its net assets as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by
reference in the Prospectus, except in all instances for changes
or decreases that the Registration Statement or the Prospectus
discloses have occurred or may occur, or for changes or decreases
that are described in such letter that are reasonably satisfactory
to each of you; and
(iii) if unaudited pro forma financial statements are
included or incorporated by reference in the Registration
Statement and the Prospectus, on the basis of a reading of such
unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the company acquired or to be acquired 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 such pro forma financial
statements, nothing came to their attention that caused them to
believe that such 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 such pro
forma adjustments have not been properly applied to such
historical amounts in the compilation of such pro forma financial
statements.
Such letter would also cover such other matters as any of you shall
reasonably request, including but not limited to the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" contained in the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus and any other information of an accounting, financial or
statistical nature included therein.
References to the Registration Statement and the Prospectus in this
Section 6(g) include any amendment or supplement thereto at the date
of such letter.
(h) Subsequent to the execution of this Agreement, there shall
not have occurred and be continuing any of the following: (i) the
suspension of trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such Exchange, (ii)
the declaration of a banking moratorium by either Federal or New York
State authorities, (iii) the occurrence of any outbreak or material
escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make
it, in the judgment of the Agents, impracticable to market the Notes,
(iv) a decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined in Rule 15c3-1 under the Exchange Act), any written notice to
the Company or any public announcement of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of such possible change or (v)
the failure to provide the certificate, legal opinion or accountant's
letter required pursuant to Sections 4(i), 4(j) and 4(k),
respectively, hereof.
(i) Prior to the Execution Time and the Closing Date for any such
Terms
18
Agreement, as the case may be, the Company shall have furnished
to each of you such further information, documents, certificates and
opinions of counsel as any of you 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 and, if applicable, such Terms Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement or
such Terms Agreement, as the case may be, shall not be in all material
respects reasonably satisfactory in form and substance to each of you and
Counsel for the Agents, this Agreement and such Terms Agreement, as the
case may be, and all of the obligations of each of you hereunder or
thereunder, as the case may be, may be canceled at any time by such of you.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph promptly confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel for
the Agents, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other
location as may be agreed upon in writing by the Company and the Agents, at
the Execution Time or the Closing Date for such Terms Agreement, as the
case may be.
Section 6. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to purchase and
pay for any Note, including any of you and any person who purchases
pursuant to a solicitation by any of the Agents, shall have the right to
refuse to purchase such Note if, at the Closing Date therefor, (a) any
condition set forth in Section 5 hereof (other than paragraph (h) thereof)
shall not be satisfied or (b) subsequent to the agreement to purchase such
Note, any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
shall have occurred the effect of which is, in the judgment of the
Purchaser or the Agent that presented the offer to purchase such Note, as
applicable, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery of such Note or (c) subsequent to
the agreement to purchase such Note, there shall have been any decrease in
the rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined in Rule 15c3-1
under the Exchange Act) or any written notice given to the Company or any
public announcement of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate
the direction of such possible change.
Section 7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of you
and each person, if any, who controls any of you within the meaning of
Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus relating to the Notes (if used prior to the
19
Effective Date), including all documents then incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, in the Incorporated
Documents, in the Registration Statement or the Prospectus, or in the
Registration Statement or the Prospectus as amended or supplemented
(if any amendments or supplements thereto shall have been furnished),
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading unless such untrue statement or omission or
such alleged untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by
any of you expressly for use in the Registration Statement or the
Prospectus (or any amendment or supplement to either thereof) or
arising out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the Statement
of Eligibility on Form T-1 of the Trustee; provided, however, any such
indemnity with respect to a Prospectus shall not inure to the benefit
of any of you (or of any person controlling such of you) on account of
any loss, claim, damage or expense arising from the sale of Notes to
any person if any amendments or supplements to such Prospectus shall
have been furnished to such of you on a timely basis and in such
quantities to permit such of you to send or give to such person, and
it shall be established that such of you shall have failed to send or
give to such person, (i) with or prior to the written confirmation of
such sale, a copy of such amendment or supplement, except the
Incorporated Documents, and the untrue statement or omission of a
material fact contained in such Prospectus and giving rise to such
loss, liability, claim, damage or expense was corrected in such
amendment or supplement or (ii) with or prior to the delivery of such
Notes to such person, a copy of such amendment or supplement that
shall have been furnished subsequent to such written confirmation and
prior to such delivery, except the Incorporated Documents, and the
untrue statement or omission of a material fact contained in such
Prospectus and giving rise to such loss, liability, claim, damage or
expense was corrected in such amendment or supplement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above.
(b) Each of you severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in Section 7(a) hereof,
20
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus relating to the Notes or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such of you expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party shall not relieve it from any liability on account to this indemnity
agreement except to the extent that it has been prejudiced in any material
respect by such failure or from any liability that it may have to such
indemnified person otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the defense of
such action. If it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it and approved by the indemnified parties defendant in such
action, unless such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses available to them
that are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) hereof in respect of any losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the one hand and you on the other from the relevant offering of the Notes.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law, then such indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and you on the other
in connection with the statements or omissions that resulted in such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and you on the
other shall be deemed to be in the same proportion as the total net
proceeds from the relevant offering of the Notes (before deducting
expenses) received by the Company bear to the total commissions received by
you in respect of such offering (or, in the case of Notes sold pursuant to
a Terms Agreement, the aggregate commissions that would have been received
by such of you
21
if such commissions had been payable), in each case as set forth on the
cover page of the Prospectus Supplement or the applicable Pricing Supplement,
as the case may be. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or you and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and you agree that it
would not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to above
in this Section 7(d). The amount paid or payable by an indemnified party as
a result of the losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to above in this Section 7(d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. 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.
(e) You confirm that the statements with respect to the public
offering of the Notes set forth in the fourth sentence of the last
paragraph on the cover page of the Prospectus Supplement and the statements
with respect to the resale of any Note at a discount in the first
paragraph, and with respect to the market making activities of any Agent
set forth in the fourth paragraph, under the caption "Plan of Distribution
of Notes" therein are correct and complete and were furnished in writing to
the Company by you for inclusion in the Registration Statement and the
Prospectus.
Section 8. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 8. This Agreement may
be terminated by either the Company as to any of you or any of you, insofar
as this Agreement relates to such of you, giving written notice of such
termination to such of you or the Company, as the case may be. This
Agreement shall so terminate at the close of business on the first business
day following the receipt of such notice by the party to whom such notice
is given.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser by notice given to the Company prior
to delivery of any payment for Notes to be purchased thereunder, if prior
to such time (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities, (iii) there
shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of
the United States is such as to make it, in the judgment of the Purchaser,
impracticable to market such Notes or (iv) the Company is unable to provide
the legal opinion, certificate or accountant's letter required under
Sections 5(d), 5(f) and 5(g), respectively, hereof.
(c) In the event of any termination under Section 8(a) or 8(b)
hereof, none of
22
you shall have any liability to the Company and the Company shall not have
any liability to any of you, except that (i) the Agents shall be entitled
to any commission earned in accordance with the fourth paragraph of Section
2(a) hereof, (ii) if at the time of termination (A) any of you as Purchaser
shall own any Notes purchased pursuant to a Terms Agreement with the intention
of reselling them or (B) an offer to purchase any of the Notes has been
accepted by the Company but the Closing Date therefor has not occurred, the
covenants set forth in Section 4 hereof shall remain in effect until such
Notes have been resold or delivered, as the case may be, and (iii) the
covenants set forth in Sections 4(d) and 4(g) hereof, the indemnity and
contribution agreements set forth in Section 7 hereof and the provisions of
Sections 9 and 12 hereof shall remain in effect.
Section 9. 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
officers, directors or controlling persons referred to in Section 7 hereof
and will survive delivery of and payment for the Notes.
Section 10. Notices. All communications hereunder and under any
Terms Agreement will be in writing (which may be by telex or facsimile
transmission) and effective only on receipt, and, if sent to any of you,
will be mailed, delivered or transmitted and confirmed to such of you, at
the address specified in Schedule I hereto; or, if sent to the Company,
will be mailed, delivered or transmitted and confirmed to it at Pacific
Telecom, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of the
Vice President and Treasurer, telephone: ▇▇▇-▇▇▇-▇▇▇▇, telecopy:
▇▇▇-▇▇▇-▇▇▇▇.
Section 11. Successors. This Agreement and any Terms Agreement
will inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and controlling
persons referred to in Section 7 hereof and, to the extent provided in
Section 6 hereof, any person who has agreed to purchase Notes, and no other
person will have any right or obligation hereunder or thereunder.
Section 12. Applicable Law. This Agreement and any Terms
Agreement will be governed by and construed in accordance with the laws of
the State of New York.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Company and each of you.
Very truly yours,
Pacific Telecom, Inc.
By:
--------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By:
--------------------------------------
Name:
Title:
-----------------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
By:
--------------------------------------
Name:
Title:
SCHEDULE I
----------
The Company agrees to pay each of Salomon Brothers Inc
("Salomon"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇") a commission
equal to the following percentage of the principal amount of each Note sold
by the Company as a result of a solicitation made by such Agent:
Term Commission Rate
---- ---------------
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .650%
20 years to less than 30 years .750%
30 years to less than 40 years .875%
40 years or more Negotiated at the
time of sale
Address for Notice to you:
Notices to ▇▇▇▇▇▇▇ shall be directed to it at Seven World Trade
Center, New York, New York 10048, Attention of the Medium-Term Note
Department, telephone: ▇▇▇-▇▇▇-▇▇▇▇, telecopy: ▇▇▇-▇▇▇-▇▇▇▇.
Notices to Goldman shall be directed to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Medium-Term Note Desk, telephone:
212-902- 1482, telecopy: ▇▇▇-▇▇▇-▇▇▇▇.
Notices to ▇▇▇▇▇▇▇ shall be directed to it at World Financial
Center, North Tower, 10th Floor, New York, New York 10281-1310, Attention
of MTN Product Management,
2
telephone: ▇▇▇-▇▇▇-▇▇▇▇, telecopy: ▇▇▇-▇▇▇-▇▇▇▇.
EXHIBIT A
---------
Pacific Telecom, Inc.
MEDIUM-TERM NOTES, SERIES C
ADMINISTRATIVE PROCEDURES
--------------
[_____], 1996
The Medium-Term Notes, Series C (the "Notes") of Pacific Telecom,
Inc. (the "Company") are to be offered on a continuing basis by the Company
pursuant to a Selling Agency Agreement dated [_____], 1996 between each of
Salomon Brothers Inc, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as agents of the Company (each
an "Agent"), and the Company (the "Agency Agreement"). Unless otherwise
defined herein, terms defined in the Indenture (as defined below) and the
Notes shall be used herein as therein defined.
Each Agent has agreed to solicit purchases of Notes issued in
fully registered form. The Agents will not be obligated to purchase Notes
for their own account. Each Agent, as principal, may purchase Notes for its
own account pursuant to the terms of a Terms 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 Notes will be issued under the Indenture dated as of
September 20, 1991, as amended and supplemented, between The First National
Bank of Chicago ("FNBC"), as trustee (the "Trustee"), and the Company (the
"Indenture").
Each Note will be represented by either (i) a Global Security (as
defined under "Issuance" in Part I below) delivered to FNBC, as agent for
The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or (ii) 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.
The procedures to be followed during, and the specific terms of,
the solicitation of orders 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 orders 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. To the extent the administrative procedures are
generally applicable to Book-Entry Notes and Certificated Notes, such
administrative procedures are set forth in Part III hereof. 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, FNBC will perform
the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations dated as of [_____], 1996 from the Company and FNBC to DTC
and a Medium-Term Note Certificate Agreement dated May 26, 1989 between
FNBC 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" in Part III 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 all
such Book-Entry Notes that have the same original
issue date, original issue discount provisions, if
any, Interest Payment Dates, Regular Record Dates,
Interest Payment Period, Redemption Date and other
redemption provisions, if any, Maturity Date and,
in the case of Fixed Rate Notes, Interest Rate
and, 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
(collectively, the "Terms"). Each
A-3
Global Security will be dated and issued as of the
date of its authentication 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 Numbers: The Company and the Agents have arranged
with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the
reservation of a series of CUSIP numbers, which
series consists of approximately 900 CUSIP numbers
and relates to Global Securities representing
Book-Entry Notes. FNBC, the Company and DTC have
obtained from the CUSIP Service Bureau a written
list of such reserved CUSIP numbers. The Trustee
will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B".
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Company
has assigned to Global Securities. FNBC 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
FNBC 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 in such Book-Entry Note in the
A-4
account of such Participants. The ownership
interest of such beneficial owner (or such
participant) in such Book-Entry Note will be
recorded through the records of such Participants
or through the separate records of such
Participants and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees
of such Note.
Exchanges: FNBC 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 30 days after such written notice is
delivered and at least 30 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 FNBC) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, FNBC 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, FNBC will exchange such
Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers
of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
Payments of Principal Payment of Interest Only. Promptly after each Regular
and Interest: Record Date, FNBC will deliver to the Company and
DTC a written notice setting forth, by CUSIP
number, the amount of interest to be paid on each
Global Security on the following Interest Payment
Date (other than an Interest Payment Date
coinciding
A-5
with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global
Security on such Interest Payment Date by
reference to the appropriate (daily or weekly)
bond reports published by Standard & Poor's
Corporation. The Company will pay to FNBC, as
paying agent, the total amount of interest due on
such Interest Payment Date (other than at
Maturity), and FNBC will pay such amount to DTC,
at the times and in the manner set forth below
under "Manner of Payment." If any Interest Payment
Date for a Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date.
Payments at Maturity. On or about the first Business
Day of each month, FNBC will deliver to the Company,
DTC and the Trustee a written list of principal and
interest to be paid on each Global Security at the
Maturity thereof in the following month. FNBC, 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 such Maturity. On or before
such Maturity, the Company will pay to FNBC, as
paying agent, the principal amount of such Global
Security, together with interest due at such
Maturity. FNBC will pay such amount to DTC at the
times and in the manner set forth below under
"Manner of Payment." If any Maturity of a Global
Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the
period from and after such Maturity. Promptly
after payment to DTC of the principal and interest
due at Maturity 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,
FNBC 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 shall be
paid by the Company to FNBC in immediately
available funds no later than Noon (New York City
time) on such date. The Company will make such
payment on such Global Securities by instructing
FNBC to withdraw funds
A-6
from an account maintained by the Company at FNBC
or by wire transfer to FNBC. The Company will
confirm any such instructions in writing to FNBC.
Prior to 12:30 P.M. (New York City time) on the
date of Maturity or as soon as possible
thereafter, FNBC 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), interest
payments shall be made to DTC, in funds available
for immediate use by DTC, in accordance with
existing arrangements between FNBC 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 FNBC shall
have any direct responsibility or liability for
the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through any Agent, as agent,
shall be as follows:
A. The Presenting Agent (as defined under
"Preparation of Pricing Supplement" in Part
III below) will advise the Company by
telephone of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate and, in the case
of a Floating Rate
A-7
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) and Maximum Interest Rate (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Redemption Date and other redemption
provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission,
determined as provided in Section 2(a)
of the Agency Agreement.
9. Whether or not such Book-Entry Note is
an Original Issue Discount Security and,
if so, the total amount of original
issue discount ("OID"), the yield to
maturity and the initial accrual period
OID.
10. Such other terms as shall be applicable
to the Note as agreed upon by the
purchaser and the Company and not
inconsistent with the Indenture.
B. FNBC will assign a CUSIP number to the Global
Security representing such Book-Entry Note
and then advise the Company 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 and the name of
the Presenting Agent. FNBC will also notify
the Presenting Agent by telephone of such
CUSIP number as soon as practicable.
C. FNBC 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), the Presenting Agent and, upon
request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
A-8
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 Regular
Record Date and amount of interest
payable on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether or not such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
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.
F. DTC will credit such Book-Entry Note to
FNBC's participant account at DTC.
G. FNBC will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit such Book-Entry Note to
FNBC's participant account and credit such
Book-Entry Note to the Presenting Agent's
participant account and (ii) debit the
Presenting Agent's settlement account and
credit FNBC's settlement account for an
amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty by
FNBC to DTC that (i) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (ii) FNBC is
holding such Global
A-9
Security pursuant to the Medium Term Note
Certificate Agreement between FNBC 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.
J. FNBC will, upon receipt of funds from the
Agent in accordance with Settlement Procedure
"G", wire transfer to the account of the
Company maintained at SeaFirst Bank, Seattle,
Washington, funds available for immediate use
in the amount transferred to FNBC in
accordance with Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note a confirmation order or orders through
DTC's instructional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by any
and Timetables: Agent accepted by the Company for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but
not later than the respective times (New York City
time) set forth below:
A-10
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 the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A"
and "B" shall be completed as soon as practicable
but no later than 11:00 A.M. and 12:00 Noon,
respectively, and Settlement Procedures "C" and
"D" shall be completed as soon as practicable but
no later than 2:00 P.M. and 3:00 P.M.,
respectively, on the Business Day before the
settlement date. If the Initial Interest Rate for
a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure
"A" is completed, Settlement Procedures "B" and
"C" shall be completed as soon as such rate has
been determined but no later than 12:00 Noon and
2:00 P.M., respectively, on the Business Day
before the settlement date. Settlement Procedures
"I" and "J" are 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, FNBC will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.
on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If FNBC fails to enter an SDFS
deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", FNBC may
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 FNBC's participant account. DTC will
process the withdrawal message, provided that
FNBC's participant account contains a principal
amount of the Global Security representing such
Book-Entry Note that is at
A-11
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 FNBC will make
appropriate entries in its records. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be canceled and not reassigned until the
Book-Entry Notes represented by such Global
Security have matured or been redeemed. 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, FNBC will
exchange such Global Security for two Global
Securities, one of which shall represent such
Book-Entry Notes as to which there has been a
withdrawal 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, FNBC 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 FNBC as
applicable, on an equitable basis for the loss of
the use of the funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee
will provide, in accordance with Settlement
Procedure "E", for the authentication and issuance
of a Global Security representing the other
Book-Entry Notes to
A-12
have been represented by such Global Security and
will make appropriate entries in its records.
PART II
Administrative Procedures for Certificated Notes
FNBC will serve as registrar and transfer agent in connection
with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication 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.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the principal corporate trust office of
the Trustee in Chicago at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-0126 or New York City at First Chicago Trust
Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Administration. 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.
Payments of Principal FNBC will pay the principal amount of each
and Interest: Certificated Note at Maturity upon presentation of
such Certificated Note to FNBC. Such payment,
together with payment of interest due at Maturity
of such Certificated Note, will be made in funds
available for immediate use by FNBC and in turn by
the Holder of such Certificated Note. Certificated
Notes presented to FNBC at Maturity for payment
will be canceled by the Trustee in
A-13
accordance with the Indenture. All interest
payments on a Certificated Note (other than
interest due at Maturity) will be made by check
drawn on FNBC (or another Person appointed by
FNBC) and mailed by FNBC to the Person entitled
thereto as provided in such Note and the
Indenture; provided, however, that the holder of
U.S. $10,000,000 (or the equivalent thereof in
other currencies) or more of Certificated Notes
with similar tenor and terms will be entitled to
receive payment by wire transfer in U.S. dollars.
Following each Regular Record Date and Special
Record Date, FNBC will furnish the Company and the
Trustee with a list of interest payments to be
made on the following Interest Payment Date for
each Certificated Note and in total for all
Certificated Notes. Interest at Maturity will be
payable to the Person to whom the payment of
principal is payable. FNBC will provide monthly to
the Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing (on a Maturity or
Redemption Date or otherwise) in the next month.
FNBC will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any interest Payment Date for or the Maturity
of a Certificated Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date or Maturity, as
the case may be.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note 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. Name in which such Certificated Note is
to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
A-14
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate and, 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).
7. Interest Payment Dates and the Interest
Payment Period.
8. Specified Currency and whether or not
the option to elect payment in a
Specified Currency applies and if the
Specified Currency is not U.S. dollars,
the authorized denominations.
9. Redemption Date and redemption
provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission,
determined as provided in Section 2(a)
of the Agency Agreement.
13. Whether or not such Certificated Note is
an Original Issue Discount Security and,
if so, the total amount of OID, the
yield to maturity and the initial
accrual period OID.
14. Such other terms as shall be applicable
to such Certificated Note as agreed upon
by the purchaser and the Company and not
inconsistent with the Indenture.
B. The Company will advise FNBC by telephone
(confirmed in writing at any time on the sale
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above and the name of the Presenting
Agent.
C. The Company will deliver to FNBC a
pre-printed four-ply
A-15
packet for such Certificated Note, which packet
will contain the following documents in forms
that have been approved by Company, the Agents
and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated
Note and will authenticate such Certificated
Note and deliver it (with the confirmation)
and Stubs One and Two to the Presenting
Agent, and the Presenting Agent will
acknowledge receipt of such Certificated Note
by stamping or otherwise marking Stub One and
returning it to the Trustee. Such delivery
will be made only against such acknowledgment
of receipt and evidence that instructions
have been given by the Presenting Agent for
payment to the account of the Company at
SeaFirst Bank, Seattle, Washington, in funds
available for immediate use, of an amount
equal to the price of such Certificated Note
less the Presenting Agent's commission. In
the event that the instructions given by the
Presenting Agent for payment to the account
of the Company are revoked, the Company will
as promptly as possible wire transfer to the
account of the Presenting Agent an amount of
immediately available funds equal to the
amount of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to
the purchaser thereof against payment in
immediately available funds. The Presenting
Agent will obtain the acknowledgment of
receipt of such Certificated Note by
retaining Stub Two.
F. FNBC will send Stub Three to the Company by
first-class mail.
Settlement Procedures For orders of Certificated Notes solicited by any
Timetables: Agent, as agent, and accepted by the Company,
Settlement Procedures "A" through "F" set forth
above shall be completed on or before the
respective times (New York City time) set forth
below:
A-16
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on the day before the
settlement date
B-C 3:00 P.M. on the day before the
settlement date
D 2:15 P.M. on the settlement date
E 3:00 P.M. on the settlement date
F 5:00 P.M. on the settlement date
Failure to Settle: If a purchaser fails to accept delivery
of and make payment for any Certificated Note, the
Presenting Agent will notify the Company and FNBC
by telephone and return such Certificated Note to
the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the
account of the Presenting Agent an amount equal to
the amount previously credited to the account of
Company in respect of such Certificated Note. Such
wire transfer will be made on the settlement date,
if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other
than a default by the Presenting Agent in the
performance of its obligations hereunder and under
the Agency Agreement, then the Company will
reimburse the Presenting Agent or FNBC, as
appropriate, on an equitable basis for its loss of
the use of the funds during the period when they
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note
in respect of which such failure occurred, the
Trustee will cancel such Certificated Note in
accordance with the Indenture and so advise the
Company and FNBC will make appropriate entries in
its records.
PART III
Administrative Procedures Applicable to
Book-Entry Notes and Certificated Notes
Maturities: Each Note will mature on a date not less than nine
months after the settlement date for such Note.
Denominations: Notes will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000.
A-17
Interest: General. Interest, if any, on each 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 Note, and will be calculated and
paid in the manner described in such Note and in
the Prospectus (as defined in the Agency
Agreement), as supplemented by the applicable
Pricing Supplement (as defined under "Preparation
of Pricing Supplement" below). Unless otherwise
specified therein, each payment of interest on a
Note will include interest accrued to but
excluding the Interest Payment Date (provided
that, in the case of Floating Rate Notes that
reset weekly, interest payments will include
accrued interest to and including the Regular
Record Date immediately preceding the Interest
Payment Date) or to but excluding Maturity (other
than a Maturity of a Fixed Rate Note occurring on
the 31st day of a month, in which case such
payment of interest will include interest accrued
to but excluding the 30th day of such month).
Interest payable at the Maturity of a Book-Entry
Note will be payable to the Person to whom the
principal of such Book-Entry Note is payable. In
the case of Book-Entry Notes, Standard & Poor's
Corporation will use the information received in
the pending deposit message described under
Settlement Procedure "C" in Part I above in order
to include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or
weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date.
Interest Payment Dates on Fixed Rate Notes. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on Fixed
Rate Notes will be made semiannually on March 1
and September 1 of each year and at Maturity;
provided, however, that in the case of a Fixed
Rate Note issued between a Regular Record Date and
an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date
(unless the Company elects, in its sole
discretion, to pay such interest on the first
Interest Payment Date after the Original Issue
Date and, if such Fixed Rate Note is a Book-Entry
Note, such payment is made in accordance with DTC
procedures).
A-18
Interest Payment Dates on Floating Rate Notes.
Interest payments will be made on Floating Rate
Notes monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon, interest
will be payable, in the case of Floating Rate
Notes with a monthly Interest Payment Period, on
the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December
of each year; with a semi-annual Interest Payment
Period on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" in
Part I or II above, as the case may be; and with
an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to
Settlement Procedure "A" in Part I or II above, as
the case may be; provided, however, that, if an
Interest Payment Date for a Floating Rate Note
would otherwise be a day that is not a Business
Day with respect to such Floating Rate Note, such
Interest Payment Date will be the next succeeding
Business Day with respect to such Floating Rate
Note, except in the case of a Floating Rate 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; provided further, however,
that, in the case of a Floating Rate Note issued
between a Regular Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Regular Record Date (unless the
Company elects, in its sole discretion, to pay
such interest on the first Interest Payment Date
after the Original Issue Date and, if such
Floating Rate Note is a Book-Entry Note, such
payment is made in accordance with DTC
procedures).
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, FNBC will
deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates
that will occur with respect to Notes during the
six-month period beginning on such first Business
Day. Promptly after each Interest Determination
Date for Floating Rate Notes, FNBC as Calculation
Agent, will notify Standard & Poor's Corporation
of the interest rates determined on such Interest
Determination Date.
Calculation of Interest: Fixed Rate Notes. Interest on Fixed
Rate Notes (including interest for partial
periods) will be calculated on the basis of a
360-day year of twelve 30-day months.
A-19
Floating Rate Notes. Interest rates on Floating
Rate Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate 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 Note for which the Base Rate is
Treasury Rate, interest will be calculated on the
basis of the actual number of days in the year.
Procedure for Rate The Company and the Agents will discuss from time to
Setting and Posting: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
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 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 Unless otherwise instructed by the Company, each Agent
Rejection of Orders: will advise the Company promptly by telephone of all
orders to purchase Notes received by such Agent,
other than those rejected by it in whole or in
part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and the
Agents, the Company has the right to accept orders
to purchase Notes and may reject any such orders
in whole or in part.
Preparation of If any order to purchase a Note is accepted by or on
Pricing Supplement: behalf of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note and will arrange
to have such Pricing Supplement filed with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities Act
of 1933, as amended (the "Act"), and will furnish
one copy thereof (and additional copies if
requested) to the Agent that presented the order
(the "Presenting Agent") at the addresses set
forth in the next paragraph. The Presenting Agent
will cause a Prospectus and Pricing Supplement to
be delivered to the purchaser of such Note.
The Company will deliver a completed Pricing
Supplement, via next day mail or telecopy to
arrive no later than 11:00 A.M. on the Business
Day following the trade date, to the Presenting
Agent at the following locations:
A-20
If the Presenting Agent is Salomon Brothers Inc:
Salomon Brothers Inc
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If the Presenting Agent is ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If the Presenting Agent is ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Tritech Services
4 Corporate Place
Corporate Park ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Final Prospectus Unit/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇/5/6
also, for record keeping purposes, please send a copy
to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center, North Tower
10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
In each instance that a Pricing Supplement is
prepared, the
A-21
Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files), will be destroyed.
Suspension of Subject to the Company's representations,
Solicitation; warranties and covenants contained in the Agency
Amendment or Agreement, the Company Amendment or may instruct
Supplement: the Agents to suspend at any time, for any period
of time or permanently, the solicitation of orders
to purchase 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.
In the event that at the time the Company suspends
solicitation of purchases there shall be any
orders outstanding for settlement, the Company
will promptly advise the Agents, the Trustee and
FNBC whether or not such orders may be settled and
whether or not copies of the Prospectus as in
effect at the time of the suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus, 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 such supplement
to the Prospectus relating to the Notes. The
Company will provide the Agents, the Trustee and
FNBC 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) under the Act.
Procedures For When the Company has determined to change the
Rate Changes: interest rates of 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
A-22
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
Prospectus: relating to a Note must accompany or precede the
earliest of any written offer of such Note,
confirmation of the purchase of such Note and
payment for such Note by its purchaser. If notice
of a change in the terms of the Notes is received
by the Agents between the time an order for a Note
is placed and the time written confirmation
thereof is sent by the Presenting Agent to a
customer or its 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 Note sold by it. The Company will
make such delivery if such Note is sold directly
by the Company to a purchaser (other than an
Agent).
Confirmation: For each order to purchase a Note solicited by any
Agent and accepted by or on behalf of the Company,
the Presenting Agent will issue a confirmation to
the purchaser, with a copy to the Company, setting
forth the details set forth above and delivery and
payment instructions.
Settlement: The receipt by the Company of immediately available
funds in payment for a Note and the authentication
and issuance of the Global Security representing
such Note shall constitute "settlement" with
respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following the date of sale of such Note pursuant
to the timetable for settlement set forth below
unless the Company and the purchaser agree to
settlement on another day that shall be no earlier
than the next Business Day following the date of
sale.
Trustee Not to Nothing herein shall be deemed to require the
Risk Funds: Trustee to risk or expend its own funds in
connection with any payment to the Company, the
Agents or any purchaser or holder of Notes, it
being understood by all parties that payments made
by the Trustee to the Company, the Agents or the
purchaser shall be
A-23
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
Signatures: Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has authorized by the
Trustee to authenticate Notes, but no 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 Note.
Payment of Each Agent shall forward to the Company, on a
Expenses: monthly basis, a statement of the out-of-pocket
expenses incurred by such Agent during that month
that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly
basis.
Advertising Costs: The Company will determine with the Agents the
amount of advertising that may be appropriate in
soliciting orders to purchase the Notes.
Advertising expenses will be paid by the Company.
Periodic Statements: Periodically, FNBC will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date and setting
forth a brief description of any sales of Notes
that the Company has advised FNBC but that have
not yet been settled.
EXHIBIT B
---------
FOREIGN CURRENCY AMENDMENT NO. [_____]
TO SELLING AGENCY AGREEMENT DATED [_____], 1996
---------------------------------------------------
[Insert Title of Foreign Currency]
The undersigned hereby agree that for the purposes of the
issuance and sale of Notes denominated in [title of currency or currency
unit] (the "Applicable Foreign Currency") pursuant to the Selling Agency
Agreement dated [_____], 1996 between Pacific Telecom, Inc. and each of
Salomon Brothers Inc, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Agency Agreement"), the
following additions and modifications shall be made to the Agency
Agreement. The additions and modifications adopted hereby shall be of the
same effect for the sale under the Agency Agreement of all Notes
denominated in the Applicable Foreign Currency, whether offered on an
agency or principal basis, but shall be of no effect with respect to Notes
denominated in any currency or currency unit other than the Applicable
Foreign Currency.
Except as otherwise expressly provided herein, all terms used
herein that are defined in the Agency Agreement shall have the same
meanings as in the Agency Agreement. The terms Agent or Agents, as used in
the Agency Agreement, shall be deemed to refer only to the undersigned
Agent[s] for purposes of this Amendment.
[Insert appropriate additions and modifications to the Agency
Agreement (for example, to opinions of counsel, conditions to obligations
and settlement procedures, etc.).]
__________, 199_
Pacific Telecom, Inc.
By
---------------------------------
Name:
Title:
[Name(s) of Agent(s) participating in the offering
of Notes in the Applicable Foreign Currency]
B-2
By
---------------------------------
Name:
Title:
EXHIBIT C
---------
AGREEMENT
____________, 199_
[Name and address of agent]
Re: Medium-Term Notes, Series C
Pricing Supplement Number: ___
Settlement Date: ____________, 199_
(See Attached Term Sheet)
------------------------------------
Ladies and Gentlemen:
Reference is made to the Selling Agency Agreement dated [_____],
1996 between Pacific Telecom, Inc. (the "Company") and each of Salomon
Brothers Inc, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Agreement") relating to up to
$200,000,000 aggregate principal amount of Medium-Term Notes, Series C (the
"Notes") to be offered from time to time by the Company. The provisions of
the Agreement (a copy of which has been previously provided to each of you)
are hereby incorporated by reference and each of the representations and
warranties set forth therein shall be deemed to have been made to you as of
the date hereof. Subject to the terms as set forth therein, the Company
hereby appoints you as an Agent (as such term is defined in the Agreement)
of the Company for the purposes of soliciting one offer to purchase Notes
from the Company containing the terms as set forth in the above-referenced
Pricing Supplement. This appointment is effective as to and extends only to
the one transaction that you are presenting to the Company (see attached
Term Sheet) and the Agreement shall automatically be terminated as to you
upon the earlier to occur of (i) payment made in full to the Company for
the Notes sold pursuant to the offer so presented and (ii) the Company or
you determine not to proceed with such transaction. Upon such termination
of the Agreement by the Company, neither you nor the Company shall have any
liability to the other except as provided in those sections of the
Agreement referenced in Section 8(c) thereof. You agree
C-2
to be bound by, and comply with, all of the provisions of the Agreement
applicable to Agents thereunder.
[As a condition precedent to your obligation to consummate the
transaction referred to above, you shall receive the following: (i) a
certificate of the Company dated [insert recent date] pursuant to [Section
5(f)] [Section 4(i)] of the Agreement; (ii) the opinion or opinions of
counsel dated [insert recent date or most recent periodic update] pursuant
to [Sections 5(d) and 5(e)] [Section 4(j)] of the Agreement; (iii) a letter
from Deloitte & Touche LLP dated [insert recent date or most recent
periodic update] delivered pursuant to Section [Section 5(g)] [Section
4(k)] of the Agreement; and (iv) a copy of the resolutions adopted by the
Company with respect to the form of Note evidencing the Notes described in
the above-referenced Pricing Supplement certified by an officer of the
Company.]*
This letter will be governed by and construed in accordance with
the laws of the State of New York.
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 between the Company and you.
Very truly yours,
Pacific Telecom, Inc.
By:
------------------------------
Name:
Title:
The foregoing letter is
hereby confirmed and accepted
as of the date hereof:
By:
------------------------------
Name:
Title:
C-3
-----------------------
* This provision is to be negotiated between the Company and such agent
at the time of the trade.
EXHIBIT D
---------
Pacific Telecom, Inc.
Medium-Term Notes, Series C
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
____________, 199_
Pacific Telecom, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. Box 9901
Vancouver, Washington 98668
Attention:
Subject in all respects to the terms and conditions of the
Selling Agency Agreement dated [_____], 1996 between you and each of
Salomon Brothers Inc, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Agreement"), the
undersigned agrees to purchase the following Notes:
Aggregate Principal Amount: U.S. $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
D-2
Regular Record Dates:
Specified Currencies:
Discount: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued interest
from , 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Sections 5(d),
5(e), 5(f) and 5(g)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(l) of the Agreement:
[Purchaser]
By: _________________________
Accepted:
By:
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Title:
EXHIBIT E
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ACKNOWLEDGMENT
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The undersigned hereby acknowledges that [it] is the purchaser of
U.S. $[__________] of Medium-Term Notes, Series C (the "Notes") of Pacific
Telecom, Inc. (the "Company") and that [it] has been furnished with a
Prospectus dated [_____], 1996 (as supplemented by a Prospectus Supplement
dated [_____], 1996 and a Pricing Supplement dated _____) of the Company
relating to the Notes. The undersigned hereby also acknowledges that none
of Salomon Brothers Inc ("Salomon"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇") (or any affiliate thereof) has acted as agent or underwriter in
connection with the sale of the Notes purchased by the undersigned and that
none of ▇▇▇▇▇▇▇, Goldman and ▇▇▇▇▇▇▇ (or any affiliate thereof) has made
any offer or otherwise solicited the undersigned with respect to the Notes.
IN WITNESS WHEREOF, the undersigned has executed this
Acknowledgment this ___ day of _____, 199_.
[Name of company, if applicable]
By
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[Title, if applicable]