▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
$1,000,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
----------------------
April 15, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company of its Medium-Term Notes due from nine months
or more from date of issue (the "Notes") at an aggregate initial offering
price of up to $1,000,000,000 (or the equivalent thereof in one or more
foreign currencies or currency units), which amount may be subject to
reduction as a result of the sale of other debt securities or preferred stock
issued by the Company after the date hereof, whether within or without the
United States ("Other Securities") pursuant to the registration statement
referred to below, and agrees with you (the "Agent", and together with any
additional agents appointed from time to time pursuant to Section 13, the
"Agents") as set forth in this Agreement. The Notes will be issued under an
indenture dated as of June 8, 1998 (the "Indenture") between the Company and
The Chase Manhattan Bank, as Trustee (the "Trustee"). The Notes shall have the
maturities, interest rates, redemption provisions, if any, and other terms set
forth in the Prospectus referred to below as it may be amended or supplemented
from time to time. The Notes will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions stated herein, including
the right of the Company to appoint additional Agents from time to time
pursuant to Section 13 of this Agreement, and to the reservation by the
Company of the right (A) to sell Notes directly to investors (other than
broker-dealers) in those jurisdictions in which the Company is so permitted
and (B) to accept (but not solicit) offers to purchase Notes from time to time
through one or more purchasers on substantially the terms set forth in Exhibit
C hereto, provided that the Company shall provide the Agents with written
notice of each such acceptance within two business days thereof, the Company
hereby (i) appoints the Agents as the exclusive agents of the Company for the
purpose of soliciting and receiving offers to purchase Notes from the Company
by others pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Notes directly
to any Agent as principal, it will enter into a separate agreement (each such
agreement a "Terms Agreement"), substantially in the form of Exhibit A hereto,
relating to such sale in accordance with Section 2(b) hereof. In connection
with the Company's reservation pursuant to clause (B) above, it is understood
that the Company may respond to inquiries and requests for information from
any such agents or dealers.
The Company has prepared and filed a registration statement on
Form S-3 (No. 333-73405) in respect of the Notes with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined) is hereinafter referred to as the
"Registration Statement" and the prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus supplement
or supplements (each a "Prospectus Supplement") specifically relating to the
Notes in the form filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act is hereinafter referred to as
the "Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus 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 Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Notes (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
1. Representations. The Company represents and warrants to, and
agrees with, each Agent as of the Commencement Date, as of each date on which
the Company accepts an offer to purchase Notes (including any purchase by an
Agent as principal pursuant to a Terms Agreement), as of each date the Company
issues and sells Notes and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being understood
that such representations and warranties shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has been declared effective
by the Commission under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission;
and the Registration Statement and Prospectus comply and, as
amended or supplemented, if applicable, will comply, in all
material respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act");
each part of the Registration Statement filed with the Commission
pursuant to the Securities Act, when such part became effective,
did not contain, and each such part, as amended or supplemented,
if applicable, will not contain, any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and the Prospectus did not, as of the date of the
Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and the Prospectus, as amended or
supplemented at such date, if applicable, will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except
that the foregoing representations and warranties shall not apply
to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Agent furnished to the Company in writing by such Agent expressly
for use therein.
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents, when they were filed with the Commission,
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with
the Commission will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not
contain 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.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development known by
the Company (after diligent inquiry) involving a prospective
material adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as
set forth, incorporated by reference or contemplated in the
Prospectus; and except as set forth, incorporated by reference or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the
Company and its subsidiaries taken as a whole.
(d) The Company and each of its "significant subsidiaries"
as such term is defined in Rule 1-02 of Regulation S-X under the
Securities Act (collectively, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation and has the corporate power and authority to carry
on business as it is currently being conducted and to own, lease
and operate its properties, all as described in the Prospectus,
and each is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to
be so qualified would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Subsidiaries have been
duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of
any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(f) The Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers thereof
in accordance with this Agreement and any applicable Terms
Agreement, will be entitled to the benefits of the Indenture, and
will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(g) This Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company enforceable in
accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by applicable law).
(h) The Indenture has been duly qualified under the Trust
Indenture Act, and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(i) The Notes will conform to the description thereof
contained in the Prospectus as amended or supplemented, if
applicable, in connection with the issuance of Notes.
(j) Neither the Company nor any of its Subsidiaries is in
violation of its respective certificate of incorporation or bylaws
or in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the Company
and its Subsidiaries, taken as a whole, to which the Company or
any of its Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, and compliance by the Company with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as
such may be required under the Securities Act or state securities
or Blue Sky laws) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under,
the certificate of incorporation or bylaws of the Company or any
of its Subsidiaries or any agreement, indenture or other
instrument to which it or any of its Subsidiaries is a party or by
which it or any of its Subsidiaries or their property is bound, or
violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to the Company any of its
Subsidiaries or their respective properties.
(l) Except as otherwise set forth or incorporated by
reference in the Prospectus, there are no material legal or
governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any of their respective
property is the subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated. No
contract or document of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement is not so described, filed
or incorporated by reference as required.
(m) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), nor any federal or state
law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder,
which in each case might result in any material adverse change in
the business, prospects, financial condition or results of
operation of the Company and its Subsidiaries, taken as a whole.
(n) The Company and each of its Subsidiaries has such
permits, licenses, franchises and authorizations of governmental
or regulatory authorities ("permits"), including, without
limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its respective properties and
to conduct its business; the Company and each of its Subsidiaries
has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of
the rights of the holder of any such permit; and, except as
described or incorporated by reference in the Prospectus, such
permits contain no restrictions that are materially burdensome to
the Company and its Subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on
the business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(p) Except as otherwise set forth or incorporated by
reference in the Prospectus or such as are not material to the
business, prospects, financial condition or results of operation
of the Company and its Subsidiaries, taken as a whole, the Company
and each of its Subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions
except liens for taxes not yet due and payable, to all property
and assets described in the Registration Statement as being owned
by it. All leases to which the Company or any of its Subsidiaries
is a party are valid and binding and no default has occurred or is
continuing thereunder, which might result in any material adverse
change in the business, prospects, financial condition or results
of operation of the Company and its Subsidiaries, taken as a
whole, and the Company and its Subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them
is a party as lessee with such exceptions as do not materially
interfere with the use made by the Company or such Subsidiary.
(q) The Company and each of its Subsidiaries maintains
reasonably adequate insurance.
(r) KPMG LLP are independent public accountants with respect
to the Company as required by the Securities Act.
(s) The financial statements, together with related
schedules and notes forming part of or incorporated by reference
in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated
or incorporated by reference in the Registration Statement at the
respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and
statistical information and data set forth or incorporated by
reference in the Registration Statement and the Prospectus (and
any amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and
its subsidiaries.
(t) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(u) Except as described in the Prospectus, no holder of any
security of the Company has any right to require registration of
shares of common stock or any other security of the Company.
(v) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) or is
exempt therefrom.
(w) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(x) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or
any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided.
2. Solicitations by Agents of Offers to Purchase; Purchases by
Agent as Principal. (a) On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent of the
Company, to use its reasonable efforts to solicit offers to purchase the Notes
from the Company upon the terms and conditions set forth herein and in the
Prospectus as amended or supplemented from time to time.
So long as this Agreement shall remain in effect with respect
to any Agent, and subject to Section 13 of this Agreement and the reservations
set forth in clauses (A) and (B) of the second paragraph of this Agreement,
the Company shall not, without the consent of such Agent, solicit or accept
offers to purchase, or sell, Notes or any other debt securities with a
maturity at the time of original issuance of nine months or more except
pursuant to this Agreement and any Terms Agreement, or except pursuant to a
private placement not constituting a public offering under the Securities Act
or except in connection with a firm commitment underwriting pursuant to an
underwriting agreement that does not provide for a continuous offering of
medium-term debt securities.
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 Notes. Upon receipt of at
least one business day's prior notice from the Company, each Agent will
suspend solicitation of offers to purchase Notes from the Company until such
time as the Company has advised such Agent or Agents that such solicitation
may be resumed. During the period of time that such solicitation is suspended,
the Company shall not be required to deliver any opinions, letters or
certificates in accordance with Sections 4(i), 4(j) and 4(k); provided that if
the Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered for the Notes or for a change that the Agents
deem to be immaterial), no Agent shall be required to resume soliciting offers
to purchase Notes until the Company has delivered such opinions, letters and
certificates as such Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note in an amount equal to the following applicable
percentage of the principal amount of such Note sold:
Commission
(percentage of
aggregate
principal amount
Maturities of Notes Sold of Notes sold)
------------------------ --------------
From 9 months to less than 1 year.......... .125%
From 1 year to less than 18 months......... .150%
From 18 months to less than 2 years........ .200%
From 2 years to less than 3 years.......... .250%
From 3 years to less than 4 years.......... .350%
From 4 years to less than 5 years.......... .450%
From 5 years to less than 6 years.......... .500%
From 6 years to less than 7 years.......... .550%
From 7 years to less than 10 years......... .625%
From 10 years to less than 12 years........ .650%
From 12 years to less than 15 years........ .675%
From 15 years to less than 20 years........ .750%
From 20 years to and including 30 years.... .875%
The Agents are authorized to solicit offers to purchase Notes
only in the principal amount of $1,000 (or, if Notes are denominated in
currencies, currency units or composite currencies other than U.S. dollars,
such other minimum denomination specified in the applicable Pricing
Supplement) or any amount in excess thereof which is an integral multiple of
$1,000 (or, if Notes are denominated in currencies or currency units other
than U.S. dollars, integrals in excess of the minimum denomination specified
in the applicable Pricing Supplement). Each Agent shall communicate to the
Company, orally or in writing, each offer to purchase Notes received by such
Agent as agent that in its judgment should be considered by the Company. The
Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the
right, in its sole discretion, to reject any offer to purchase Notes, as a
whole or in part, that it reasonably considers to be unacceptable and any such
rejection shall not be deemed a breach of its agreements herein contained. The
procedural details relating to the issue and delivery of Notes sold by an
Agent as agent and the payment therefor are set forth in the Administrative
Procedures (as hereinafter defined).
(b) Each sale of Notes by the Company directly to any of you as
principal for resale to others shall be made in accordance with the terms of
this Agreement and (unless any such Agent shall otherwise agree) a Terms
Agreement which will provide for the sale and purchase of such Notes. For the
purposes of this Agreement, the term "Purchaser" shall refer to an Agent
acting as principal hereunder and not as agent for the Company, and the terms
"Agent", "Agents" and "you" shall refer to each of you acting in both such
capacities or in either such capacity, as the context requires. Each Terms
Agreement will take the form of either (i) a written agreement substantially
in the form of Exhibit A hereto or (ii) an exchange of any standard form of
written telecommunication between a Purchaser and the Company, and may also
specify certain provisions relating to the reoffering of such Notes by such
Purchaser. The commitment of any Purchaser to purchase Notes shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein and in the applicable Terms Agreement set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by such Purchaser
pursuant thereto, the price to be paid to the Company for such Notes, the
maturity date of such Notes, the interest rate or interest rate basis, if any,
applicable to such Notes, any other terms of such Notes, the time and date and
place of delivery of and payment for such Notes (the time and date of any and
each such delivery and payment, the "Time of Delivery"), any provisions
relating to rights of, and default by, underwriters acting together with such
Purchaser in the reoffering of Notes, and shall also specify any modification
of the requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. Unless otherwise
specified in a Terms Agreement, the procedural details relating to the issue
and delivery of Notes purchased by a Purchaser and the payment therefor shall
be as set forth in the Administrative Procedures.
(c) The Company acknowledges that the obligations of the Agents
are several and not joint and, subject to the provisions of this Section 2,
each Agent shall have complete discretion as to the manner in which it
solicits purchasers for the Notes and as to the identity thereof.
(d) The Agents and the Company agree to perform their
respective duties and obligations specifically provided to be performed in the
Medium-Term Notes Administrative Procedures (the "Administrative Procedures")
attached hereto as Exhibit B, as the same may be amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(e) The Company agrees to notify each Agent of sales by the
Company of Other Securities.
3. Commencement Date. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date shall be delivered to
the Agents at the offices of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 11:00 a.m., New
York City time, on the date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents and the Company but
in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Notes is commenced or the first date on
which the Company accepts an offer by any Agent to purchase Notes as principal
(such time and date being referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees
with each Agent:
(a)(i) To make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the
offering of the Notes pursuant to this Agreement or any Terms
Agreement which shall be disapproved by any Agent after reasonable
opportunity to comment thereon, provided, however, that the
foregoing shall not apply to any of the Company's periodic filings
with the Commission described in subsection (iii) below, copies
of which filings the Company will cause to be delivered to the
Agents promptly after their transmission to the Commission for
filing; (ii) subject to the foregoing clause (i), promptly to
cause each Prospectus Supplement to be filed with or transmitted
for filing to the Commission in accordance with Rule 424(b) under
the Securities Act and to prepare, with respect to any Notes to be
sold through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously
approved by such Agent and to file such Pricing Supplement in
accordance with Rule 424(b) under the Securities Act; and (iii)
promptly to file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a Prospectus is
required in connection with the offering or sale of the Notes. The
Company will promptly advise each Agent (i) of the filing of any
amendment or supplement to the Basic Prospectus or any amendment
to the Registration Statement and of the effectiveness of any such
amendment to the Registration Statement, (ii) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or any order preventing or suspending
the use of any Prospectus relating to the Notes or the initiation
or threatening of any proceeding for that purpose, or of any
request by the Commission for any amendment or supplement of the
Registration Statement or Prospectus or for additional
information; and (iii) of the receipt by the Company of any
notification with respect to any suspension of the qualification
of the Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose.
The Company agrees to use its best efforts to prevent the issuance
of any such stop order or of any such order preventing or
suspending the use of any such prospectus or of any notification
suspending any such qualification and, if issued, to use promptly
its best efforts to obtain withdrawal thereof as soon as possible.
If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document incorporated by
reference in the Prospectus, no Agent shall be obligated to
solicit offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) To endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to continue such qualification
in effect so long as reasonably required in connection with the
distribution of the Notes and to pay all fees and expenses
(including fees and disbursements of counsel to the Agents)
reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Notes
for investment under the laws of such jurisdictions as such Agent
may designate; provided that the Company shall not be required to
file a general consent to service of process in any jurisdiction
or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified.
(c) To furnish each Agent and counsel to the Agents, at the
expense of the Company, a signed copy of the Registration
Statement (as originally filed) and each amendment thereto, in
each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph
(d) below, to furnish each Agent as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a Prospectus relating to the Notes
is required to be delivered under the Securities Act, any event
shall occur as a result of which the Prospectus, as then amended
or supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances when
such Prospectus is delivered to a purchaser, not misleading, or,
if in the opinion of the Agents or the Company, it is necessary at
any time to amend or supplement the Prospectus to comply with law,
to immediately notify the Agents by telephone (with confirmation
in writing) and request each Agent (i) in its capacity as agent of
the Company, to suspend solicitation of offers to purchase Notes
from the Company; and (ii) to cease sales of any Notes such Agent
may then own as principal (and, if so notified in either case,
such Agent shall immediately cease such solicitations or sales and
cease using the Prospectus as soon as practicable, but in any
event not later than one business day later). If the Company shall
decide to amend or supplement the Registration Statement or the
Prospectus, as then amended or supplemented, it shall so advise
each Agent promptly by telephone (with confirmation in writing)
and, at its expense, shall prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus, as then amended or supplemented, that
will correct such statement or omission or effect such compliance
and will supply such amended or supplemented Prospectus to the
Agents in such quantities as they may reasonably request. If any
such amendment or supplement and any documents, opinions, letters
and certificates furnished to the Agents pursuant to Sections
4(e), 4(i), 4(j) and 4(k) in connection with the preparation and
filing of such amendment or supplement are satisfactory in all
respects to the Agents, upon the filing with the Commission of
such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, the
Agents will resume the solicitation of offers to purchase Notes
hereunder. Notwithstanding any other provision of this Section
4(d), until the distribution of any Notes any Agent may own as
principal has been completed or in the event such Agent, in the
opinion of its counsel, is otherwise required to deliver a
Prospectus in respect of a transaction in the Notes, if any event
described in this Section 4(d) occurs the Company will, at its own
expense, promptly prepare and file with the Commission an
amendment or supplement, satisfactory in all respects to such
Agent, that will correct such statement or omission or effect such
compliance, will supply such amended or supplemented Prospectus to
such Agent in such quantities as such Agent may reasonably request
and shall furnish to such Agent pursuant to Sections 4(e), 4(i),
4(j) and 4(k) such documents, certificates, opinions and letters
as it may request in connection with the preparation and filing of
such amendment or supplement.
(e) To furnish to the Agents during the term of this
Agreement such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of
the Company, the Registration Statement, the Basic Prospectus, any
amendments or supplements thereto, the Indenture, the Notes, this
Agreement, the Administrative Procedures, any applicable Terms
Agreement and the performance by the Company of its obligations
hereunder or thereunder as the Agents may from time to time
reasonably request and shall notify the Agents promptly in writing
of any downgrading, or on its receipt of any notice of (i) any
intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement in the rating accorded
any of securities of, or guaranteed by, the Company by any
"nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(f) To make generally available to its security holders and
to such Agent as soon as practicable earnings statements which
shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder covering
periods of at least twelve months beginning in each case with the
first fiscal quarter of the Company occurring after the "effective
date" (as defined in Rule 158) of the Registration Statement with
respect to each sale of Notes.
(g) So long as any Notes are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or
other) furnished to holders of Notes and copies of any reports and
financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities
of the Company is listed.
(h) That, from the date of any applicable Terms Agreement
with such Agent or other agreement by such Agent to purchase Notes
as principal and continuing to and including the business day
following the related Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the
Notes, without the prior written consent of such Agent.
(i) That each time that (i) the Registration Statement or
the Prospectus is amended or supplemented (other than by an
amendment or supplement providing solely for the specification of
or a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), the Company shall
furnish or cause to be furnished forthwith to the Agents the
written opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the General Counsel of the
Company, or other counsel for the Company satisfactory to such
Agent, each dated the date of such amendment or supplement, in
form satisfactory to the Agents, of the same tenor as the opinion
referred to in Section 6(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the date of such opinion; or, in lieu of such
opinion, counsel last furnishing such an opinion, may furnish to
the Agents a letter to the effect that such Agents may rely on the
opinion of such counsel which was last furnished to such Agents to
the same extent as though it were dated the date of such letter
(except that the statements in such last opinion shall be deemed
to relate to the Registration Statement and the Prospectus as
amended or supplemented to date of delivery of such letter).
(j) That each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or
supplemental financial information or such amended or supplemental
information is incorporated by reference in the Registration
Statement or the Prospectus, the Company shall cause its
independent public accountants, forthwith to furnish each Agent a
letter, dated the date of the effectiveness of such amendment or
the date of filing of such supplement, in form satisfactory to
such Agent, of the same tenor as the letter referred to in Section
6(d) with such changes as may be necessary to reflect the amended
and supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter, provided 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, such
independent public accountants may limit the scope of such letter,
which shall be satisfactory in form to each Agent, to the
unaudited financial statements and the related "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included in such amendment or supplement, unless any
other information included or incorporated by reference therein of
an accounting, financial or statistical nature is of such a nature
that, in the reasonable judgment of any Agent, such letter should
cover such other information; provided further that, if during the
period from the date hereof to and including November 15, 1999, no
purchase of Notes by a Purchaser pursuant to a Terms Agreement
shall have taken place, then the obligation of the Company's
certified public accountants to furnish such letters pursuant to
this paragraph (j) shall be suspended. Thereafter, upon the
purchase of any Notes by a Purchaser pursuant to a Terms
Agreement, the Company's certified public accountants shall
furnish such letter as would most recently have been issued
pursuant to this paragraph (j) if no suspension had occurred, and
such accountants' obligations under this paragraph (i) shall
resume.
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the
interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to
be immaterial), the Company shall furnish or cause to be furnished
forthwith to the Agents a certificate signed by an executive
officer of the Company, dated the date of such amendment or
supplement in form satisfactory to the Agents, of the same tenor
as the certificates referred to in Section 6(e) but modified to
relate to the Registration Statement and the Prospectus as amended
and supplemented to the date of delivery of such certificate or to
the effect that the statements contained in the certificate
referred to in Section 6(e) hereof which was last furnished to
such Agent are true and correct at such date as though made at and
as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended
or supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with
each Agent that the Company will, whether or not any sale of Notes is
consummated, pay all costs and expenses incident to the performance of its
obligations hereunder and under any applicable Terms Agreement, including
without limiting the generality of the foregoing, all costs and expenses: (i)
incident to the preparation, issuance, execution, authentication and delivery
of the Notes, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Notes under the laws of such jurisdictions
as the Agents (or in connection with any Terms Agreement, the applicable
Agent) may designate (including fees of counsel for the Agents (or such Agent)
and their disbursements), (iv) in connection with the listing of the Notes on
any stock exchange, (v) related to any filing with National Association of
Securities Dealers, Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Indenture, any Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to the Agents and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein provided, (vii)
payable to rating agencies in connection with the rating of the Notes, (viii)
the fees and disbursements of counsel for the Agents incurred in connection
with the offering and sale of the Notes, including any opinions to be rendered
by such counsel hereunder and (ix) any advertising and out-of-pocket expenses
incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to purchase the
Notes, the obligation of any Purchaser to purchase Notes pursuant to any Terms
Agreement, and the obligation of any other purchaser to purchase Notes shall
in each case be subject (1) to the condition that all representations and
warranties of the Company herein and all statements of officers of the Company
made in any certificate furnished pursuant to the provisions hereof are true
and correct (i) in the case of an Agent's obligation to solicit offers to
purchase Notes, at and as of such Solicitation Time and (ii) in the case of
any Purchaser's or any other purchaser's obligation to purchase Notes, at and
as of the time the Company accepts the offer to purchase such Notes and, as
the case may be, at and as of the related Time of Delivery or time of
purchase; (2) to the condition that at or prior to such Solicitation Time,
time of acceptance, Time of Delivery or time of purchase, as the case may be,
the Company shall have complied with all its agreements and all conditions on
its part to be performed or satisfied hereunder; and (3) to the following
additional conditions when and as specified (it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
discretionary judgment on behalf of the Company or any purchaser in respect of
the fulfillment of any such condition):
(a) Prior to such Solicitation Time or corresponding Time of
Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement)
with respect to such Notes shall have been filed with
the Commission pursuant to Rule 424(b) under the
Securities Act within the applicable time period
prescribed for such filing by the rules and
regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings
for that purpose shall have been commenced or shall
be pending before or contemplated by the Commission;
(ii) there shall not have been any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or any review or possible change
that does not indicate the direction of the possible
change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical
rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act
subsequent to the date hereof;
(iii) there shall not have been any change, or any
development involving a prospective adverse change, in
the capital stock or in the long-term debt of the
Company or any of its Subsidiaries from that set forth
or incorporated by reference in the Registration
Statement and Prospectus which would, in the opinion
of the Agents, materially impair the investment quality
of the Notes;
(iv) the Company and its Subsidiaries shall have no
liability or obligation, direct or contingent, which
is material to the Company and its Subsidiaries, taken
as a whole, other than those reflected or incorporated
by reference in the Registration Statement and the
Prospectus;
(v) there shall not have been any adverse change or
development involving a prospective adverse change, in
the condition, financial or otherwise, of the Company
or any of its Subsidiaries or the earnings, affairs,
or business prospects of the Company or any of its
Subsidiaries, whether or not arising in the ordinary
course of business, which would, in the opinion of the
Agents, materially impair the investment quality of
the Notes; and
(vi) there shall not have been any (A) outbreak or
escalation of hostilities or other national or
international calamity or crisis or change in economic
conditions or in the financial markets of the United
States or elsewhere that, in the judgment of the
applicable Agent, is material and adverse and would,
in the judgment of the applicable Agent, make it
impracticable to market the Notes on the terms and in
the manner contemplated in the Prospectus, (B)
suspension or material limitation of trading in
securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market
System or limitation on prices for securities on any
such exchange or National Market System, (C)
enactment, publication, decree or other promulgation
of any federal or state statute, regulation, rule or
order of any court or other governmental authority
which in the opinion of the Agents materially and
adversely affects, or will materially and adversely
affect, the business or operations of the Company or
any Subsidiary, (D) declaration of a banking
moratorium by either federal or New York State
authorities or (E) taking of any action by any federal,
state or local government or agency in respect of its
monetary or fiscal affairs which in the opinion of the
Agents has a material adverse effect on the financial
markets in the United States.
(b) On the Commencement Date, and in the case of a purchase
of Notes by a Purchaser pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or
other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, General Counsel of the Company, or such other counsel
acceptable to the Agents, shall have furnished to the Agents or the
Purchaser, as the case may be, his written opinion, dated the
Commencement Date or Time of Delivery, as the case may be, in form
and substance satisfactory to such Agents or such Purchaser, as
the case may be, to the effect that:
(i) the Company and each of the Subsidiaries has been
duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate
power and authority required to carry on its business
as described in the Prospectus and to own, lease and
operate its properties;
(ii) each of the Company and the Subsidiaries is duly
qualified and is in good standing as a foreign
corporation authorized to do business in each
jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so
qualified would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of
the Company have been duly authorized and validly
issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock
of, or other ownership interests in, each of the
Subsidiaries have been duly and validly authorized and
issued, are fully paid and non-assessable and are
owned by the Company, free and clear of any security
interest, claim, lien, encumbrance or adverse interest
of any nature;
(v) the statements (A) incorporated by reference in the
Prospectus from Item 3 of the Company's Annual Report
on Form 10-K for the year ended December 31, 1998 and
(B) incorporated in the Prospectus from Item 1 of Part
II of the Company's Quarterly Reports on Form 10-Q
filed since such Annual Report, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly
present the information called for with respect to
such legal matters, documents and proceedings;
(vi) to the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or
threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of
their respective property is or could be subject that
are required to be described in the Registration
Statement or the Prospectus and are not so described or
incorporated by reference, or any statutes, regulations,
contracts or other documents that are required to be
described in the Registration Statement or the
Prospectus or are required to be filed as an exhibit to
the Registration Statement that are not so described or
filed or incorporated by reference as required;
(vii) to the best of such counsel's knowledge, neither
the Company nor any of the Subsidiaries is in
violation of its respective certificate of
incorporation or by-laws except for such violations
that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and,
neither the Company nor any of its Subsidiaries is in
default in the performance of any obligation,
agreement, covenant or condition contained in any
bond, debenture, indenture, loan agreement, mortgage,
lease or any other agreement or instrument that is
material to the Company and its subsidiaries, taken as
a whole, to which the Company or any of its
Subsidiaries is a party or by which the Company or any
of its Subsidiaries or their respective property is
bound;
(viii) neither the Company nor any of the Subsidiaries
has violated any Environmental Law or any provisions
of the Employee Retirement Income Security Act of
1974, as amended, or the rules and regulations
promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a
material adverse effect on the business, prospects,
financial condition or results of operation of the
Company and its subsidiaries, taken as a whole;
(ix) each of the Company and the Subsidiaries has such
Authorizations of, and has made all filings with and
notices to, all governmental or regulatory authorities
and self-regulatory organizations and all courts and
other tribunals, including, without limitation, under
any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective
properties and to conduct its business, except where
the failure to have any such Authorization or to make
any such filing or notice would not, singly or in the
aggregate, have a material adverse effect on the
business, prospects, financial condition or results of
operations of the Company and its Subsidiaries, taken
as a whole; each such Authorization is valid and in
full force and effect and each of the Company and its
Subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations
of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt
of any notice from any authority or governing body)
which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or
termination of any such Authorization or results or,
after notice or lapse of time or both, would result in
any other impairment of the rights of the holder of
any such Authorization; and such Authorizations
contain no restrictions that are materially burdensome
to the Company and its subsidiaries, taken as a whole;
except where such failure to be valid and in full
force and effect or to be in compliance, the
occurrence of any such event or the presence of any
such restriction would not, singly or in the
aggregate, have a material adverse effect on the
business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken
as a whole;
(x) the execution, delivery and performance by the
Company of this Agreement, any applicable Terms
Agreement, the Indenture and the Notes and compliance
by the Company with all the provisions hereof and
thereof will not conflict with or constitute a breach
of any of the terms or provisions of, or a default
under, the certificate of incorporation or by-laws of
the Company or any of its Subsidiaries or any
indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the
Company and its subsidiaries, taken as a whole, to
which the Company or any of its Subsidiaries is a
party or by which the Company or any of its
Subsidiaries or their respective property is bound,
except for any such conflict, breach or default which
would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or violate or
conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or
any governmental body or agency having jurisdiction
over the Company, any of its Subsidiaries or their
respective property;
(xi) to the best of such counsel's knowledge, all leases
to which the Company or any of its Subsidiaries is a
party are valid and binding and no default has occurred
or is continuing thereunder which might result in any
material adverse change in the business, prospects,
financial condition or results of operation of the
Company and its subsidiaries, taken as a whole, and the
Company and its Subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which
any of them is a party as lessee with such exceptions as
do not materially interfere with the use made by the
Company or such Subsidiary;
(xii) each document incorporated by reference in the
Registration Statement and the Prospectus (except for
the financial statements included therein as to which no
opinion need be expressed) complied as to form when
filed with the Commission in all material respects with
the Securities Exchange Act of 1934, as amended.
(xiii) (1) the Registration Statement and the
Prospectus (except for the financial statements,
including the notes thereto, and supporting schedules
and other financial, statistical and accounting data
contained or incorporated by reference therein and the
statements of eligibility of the Trustees on Form T-1,
as to which no opinion need be expressed) comply as to
form in all material respects with the requirements of
the Securities Act and the rules and regulations of
the Commission thereunder; and (2) nothing has come to
the attention of such counsel that would lead such
counsel to believe that (except for the financial
statements, including the notes thereto, and
supporting schedules and other financial, statistical
and accounting data contained or incorporated by
reference therein and the statements of eligibility
of the Trustees on Form T-1 as to which no belief need
be expressed) (x) any part of the Registration
Statement when such part became effective or on the
date of this Agreement contained any 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 (y) the
Prospectus on the date hereof contains any untrue
statement of a material fact or omits 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 opinion and belief set forth in
clauses (1) and (2) above shall be deemed not to cover
information concerning an offering of particular Notes
to the extent such information will be set forth in a
supplement to the Prospectus.
The opinion described in Section 6 (b) above shall be rendered
to you at the request of the Company and shall so state therein.
(c) On the Commencement Date, and in the case of a purchase
of Notes by a Purchaser pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or
other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel to the Agents, shall have furnished to the
Agents or such Purchaser, as the case may be, their opinion, dated
the Commencement Date or Time of Delivery, as the case may be, to
the effect that:
(i) the forms of the Notes have been duly authorized
and, when the terms of a particular Note and its
issuance and sale have been duly established in
conformity with the Indenture, and when such Note has
been duly executed and authenticated in accordance
with the provisions of the Indenture and delivered to
and paid for by the purchasers thereof in accordance
with the terms of this Agreement and any applicable
Terms Agreement, such Note will be entitled to the
benefits of the Indenture and will be a valid and
binding obligation of the Company, enforceable against
the Company in accordance with its terms except (a) as
such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and
(b) as such enforcement may be limited by general
principles of equity, regardless of whether
enforcement is sought in a proceeding at law or in
equity;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended and has been
duly authorized, executed and delivered by the Company
and (assuming the due authorization, execution and
delivery thereof by the Trustee) is a valid and
binding agreement of the Company, enforceable in
accordance with its terms except (a) as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally and (b) as
such enforcement may be limited by general principles
of equity, regardless of whether enforcement is sought
in a proceeding at law or in equity;
(iii) each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding
agreement of the Company, except as rights to
indemnity and contribution thereunder may be limited
by applicable law;
(iv) the Registration Statement has become effective
under the Act, no stop order suspending its
effectiveness has been issued and no proceedings for
that purpose are, to the best of such counsel's
knowledge after due inquiry, pending before or
contemplated by the Commission;
(v) the statements (A) in the Basic Prospectus under
the captions "Description of Debt Securities" and
"Plan of Distribution" and in the Prospectus
Supplement under the captions "Description of Notes"
and "Plan of Distribution" and (B) in the Registration
Statement in Item 15 of Part II, insofar as such
statements constitute a summary of legal matters or
documents referred to therein, fairly present the
information called for with respect to such legal
matters and documents;
(vi) the execution, delivery and performance by the
Company of this Agreement, any applicable Terms
Agreement, the Notes and the Indenture and compliance
by the Company with all the provisions hereof and
thereof will not, to the best of our knowledge require
any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or
other governmental body (except such as may be
required under the Securities Act, the Trust Indenture
Act of 1939, as amended or state securities or Blue
Sky laws or by the National Association of Securities
Dealers, Inc.), except where the failure to obtain
such consents, approvals, authorizations or other
orders would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(vii) the Company is not an "investment company" as
such term is defined in the Investment Company Act of
1940, as amended;
(viii) to the best of such counsel's knowledge based
solely upon due inquiry of responsible officers of the
Company, there are no contracts, agreements or
understandings between the Company and any person
granting such person the right to require the Company
to include securities of the Company with the
securities registered pursuant to the Registration
Statement; and
(ix) (1) the Registration Statement and the Prospectus
(except for the financial statements, including the
notes thereto, and supporting schedules and other
financial, statistical and accounting data contained
or incorporated by reference therein and the
statements of eligibility of the Trustees on Form T-1,
as to which no opinion need be expressed) comply as to
form in all material respects with the requirements of
the Securities Act and the rules and regulations of
the Commission thereunder; and (2) nothing has come to
the attention of such counsel that leads such counsel
to believe that (except for the financial statements,
including the notes thereto, and supporting schedules
and other financial, statistical and accounting data
contained or incorporated by reference therein and the
statements of eligibility of the Trustees on Form T-1
as to which no belief need be expressed) (x) any part
of the Registration Statement when such part became
effective or on the date of this Agreement contained
any 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 (y) the Prospectus on the date hereof
contains any untrue statement of a material fact or
omits 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 opinion and
belief set forth in clauses (1) and (2) above shall be
deemed not to cover information concerning an offering
of particular Notes to the extent such information
will be set forth in a supplement to the Prospectus.
In giving such opinions with respect to the matters covered by
Section 6(c) above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto (other than the documents incorporated therein by reference) and
review and discussion of the contents thereof (including the documents
incorporated therein by reference), but are without independent check or
verification except as specified.
(d) On the Commencement Date, the Company's independent
certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus, as then amended or supplemented, shall have furnished
to the Agents a letter, dated the Commencement Date, in form and
substance satisfactory to the Agents, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information relating to the
Company contained in or incorporated by reference in the
Registration Statement and the Prospectus, as then amended or
supplemented.
(e) On the Commencement Date, and in the case of a purchase
of Notes by a Purchaser pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or
other agreement, at the corresponding Time of Delivery, the Agents
or such Purchaser, as the case may be, shall have received a
certificate or certificates signed by an executive officer of the
Company, dated the Commencement Date or Time of Delivery, as the
case may be, to the effect set forth in Section 6(a)(i), (ii),
(iii), (iv) and (v) above and to the further effect that (1) the
representations and warranties of the Company contained herein are
true and correct on and as of the Commencement Date or Time of
Delivery, as the case may be, as if made on and as of such date
and (2) the Company has complied with all agreements and all
conditions on its part to be performed or satisfied hereunder or
under the applicable Terms Agreement or other agreement at or
prior to the Commencement Date or Time of Delivery, as the case
may be.
(f) On the Commencement Date, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
tax counsel to the Company, shall have furnished an opinion
dated the Commencement Date confirming that the information set
forth in the Prospectus under the caption "United States Tax
Considerations" is accurate in all material respects.
(g) On the Commencement Date and at each Time of Delivery,
the Company shall have furnished to the Agents or the Purchaser,
as the case may be, such further certificates, information and
documents as such Agents or such Purchaser, as the case may be,
may reasonably request.
7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any Agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Agents furnished in writing to
the Company by or on behalf of any Agent expressly for use therein.
(b) In case any action shall be brought against any Agent or
any person controlling such Agent, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company,
such Agent shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses.
Any Agent or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Agent or such controlling person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel reasonably
satisfactory to such indemnified person or (iii) the named parties to any such
action (including any impleaded parties) include both such Agent or such
controlling person and the Company and such Agent or such controlling person
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the right
to assume the defense of such action on behalf of such Agent or such
controlling person, it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Agents and controlling persons, which firm shall be designated in writing by
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, subject to approval by a
majority of such Agents, and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Agent and any such controlling person from and
against any loss or liability by reason of such settlement. Notwithstanding
the immediately preceding sentence, if in any case where the fees and expenses
of counsel are at the expense of the indemnifying party and an indemnified
party shall have requested the indemnifying party to reimburse the indemnified
party for such fees and expenses of counsel as incurred, such indemnifying
party agrees that it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered into more than
ten business days after the receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Agent
but only with reference to information relating to such Agent furnished in
writing by or on behalf of such Agent expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any such officer
or any person controlling the Company based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which indemnity may
be sought against any Agent, such Agent shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, such Agent shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Agent), and the
Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Agent, by Section 7(b)
hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Agents in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Agents shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Company, and the total underwriting discounts and commissions
received by the Agents from the offering of the Notes, bear to the total price
to the public of the Notes. The relative fault of the Company and the Agents
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the Agents and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, no
Agent shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by or sold through such
Agent and distributed to the public exceeds the amount of any damages which
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective principal amount of Notes purchased by or through each of the
Agents hereunder and not joint.
8. Termination. (a) This Agreement may be terminated at any
time (i) by the Company with respect to any or all of the Agents or (ii) by
any Agent with respect to itself only, in each case upon the giving of written
notice of such termination to each other party hereto. Any Terms Agreement
shall be subject to termination in the absolute discretion of the Agent or
Agents that are parties thereto on the terms set forth or incorporated by
reference therein. The termination of this Agreement shall not require
termination of any agreement by an Agent to purchase Notes as principal
(whether pursuant to a Terms Agreement or otherwise) and the termination of
such an agreement shall not require termination of this Agreement. In the
event this Agreement is terminated with respect to any Agent, (x) this
Agreement shall remain in full force and effect with respect to any Agent as
to which such termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes which are already
issued, agreed to be issued or the subject of a pending offer at the time of
such termination and (z) in any event, the provisions of the fourth paragraph
of Section 2(a), Section 2(c), the last sentence of Section 4(d) and Sections
4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall survive; provided that if at the time
of termination an offer to purchase Notes has been accepted by the Company but
the time of delivery to the purchaser or its agent of such Notes has not yet
occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(h)
through 4(k) and 6 shall also survive. If any Terms Agreement is terminated,
the provisions of the last sentence of Section 4(d) and Sections 2(b), 2(d),
4(a), 4(b), 4(e), 4(g) through 4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall
have been incorporated by reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be
terminated by an Agent or Agents because of any failure or refusal on the part
of the Company to comply with the terms or to fulfill any of the conditions of
this Agreement or any Terms Agreement or if for any reason the Company shall
be unable to perform its obligations under this Agreement or any Terms
Agreement or any condition of any Agent's obligations cannot be fulfilled, the
Company agrees to reimburse each Agent or such Agents as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably
incurred by such Agent or Agents in connection with this Agreement or the
offering of Notes.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Notes from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Notes. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company
was solicited by such Agent and has been accepted by the Company, but such
Agent shall not have any liability to the Company in the event such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Notes.
11. Notices. Except as otherwise specifically provided herein
or in the Administrative Procedures, all statements, requests, notices and
advices hereunder shall be in writing, and effective only on receipt, and will
be delivered by hand, by mail (postage prepaid), by telegram (charges
prepaid), telex or telecopier. Communications to the Agents will be sent, in
the case of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, to ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇ and, if sent to the Company, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Senior Vice
President and Treasurer.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by
the Company and each Agent; provided that the Company may from time to time,
on 2 days prior written notice to the Agents but without the consent of any
Agent, amend this Agreement to add as a party hereto one or more additional
firms registered under the Exchange Act, whereupon each such firm shall become
an Agent hereunder on the same terms and conditions as the other Agents that
are parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day"
shall mean any day which is not a Saturday or Sunday or legal holiday or a day
on which banks in New York City are required or authorized by law, regulation
or executive order to close.
15. Applicable Law. This Agreement and any Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding,
please sign and return to us 16 counterparts hereof, whereupon this letter and
the acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
& Treasurer
Accepted in New York, New York,
as of the date first above written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
EXHIBIT A
---------
[Principal Amount]
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
____________ ___, 199_
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Distribution Agreement dated as of
April 15, 1999 (the "Distribution Agreement")
The undersigned agrees to purchase Medium-Term Notes having the
following terms:
FLOATING RATE FIXED RATE AMORTIZING DUAL CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
---------- ------------- ---------- ---------- ------------- --------------
Principal Amount: Interest Rate Basis or Interest Rate: % Amortization Face Amount Currency: Index Currency:
Bases: Schedule
Purchase If LIBOR: Face Amount: Currency Base Rate:
Price: % [ ] LIBOR Reuters
[ ] LIBOR Telerate
Settlement Date Index Maturity: Optional Payment Currency: Determination Agent:
and Time:
Place of Delivery: Spread (plus Designated Exchange Rate:
or minus): %
Original Issue Spread Option Election Date(s):
Date: Multiplier: %
Specified Currency: Initial Interest Option Value Calculation
[ ] U.S. dollars Rate: % Agent:
[ ] Other:
Authorized Initial Interest
Denomination: Reset Date:
[ ] $1,000 and Interest Reset
integral Date(s)
multiples thereof
[ ] Other:
Maturity Date: Maximum Interest
Rate: %
Interest Minimum Interest
Payments Date(s): Rate: %
Optional Repayment INTEREST
Date(s): CATEGORY:
Initial Redemption [ ] Regular Floating
Date: Rate Note
[ ] Floating Rate/Fixed
Initial Redemption Rate Note
Percentage: % Fixed Rate
Commencement
Annual Redemption Date:
Percentage Fixed Rate
Reduction: % Interest: %
[ ] Inverse Floating
[ ] Original Issue Rate Note
Discount Note Fixed Interest
Issue Price: % Rate:
[ ] Original Issue
Exchange Rate Discount Note
Agent: Issue Price:
Other Provisions:
[The certificate referred to in Section 6(e) of the
Distribution Agreement and the opinions referred to in Sections 6(b) and 6(c)
of the Distribution Agreement will be required.]
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7,
10, 11, 12 and 15 of the Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is subject to termination in our absolute
discretion on the terms incorporated by reference herein. If this Agreement is
so terminated, the provisions set forth in the last sentence of Section 8 of
the Distribution Agreement shall survive for the purposes of this Agreement.
[NAME OF AGENT(S)]
By
---------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
By
--------------------------------
Name:
Title:
EXHIBIT B
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
______________________________________
The Medium-Term Notes (the "Notes"), are to be offered on a
continuous basis by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. (the "Company").
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation (the "Agent", and together
with any additional agents appointed from time to time pursuant to Section 13
of the Agreement (as defined herein), the "Agents") has agreed to solicit
offers to purchase the Notes in registered form. The Notes are being sold
pursuant to a Distribution Agreement dated as of April 15, 1999 (the
"Agreement") between the Company and the Agents. In the Agreement, each Agent
has agreed to use its reasonable efforts to solicit purchases of the Notes.
Each Agent, as principal, may purchase Notes for its own account and if it
does so, the Company and such Agent will enter into a terms agreement (each, a
"Terms Agreement"), as contemplated by the Agreement.
The Notes will be issued under an Indenture dated as of June 8,
1998 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Chase Manhattan Bank (the "Bank") will be the
Registrar, Calculation Agent, Authenticating Agent and Paying Agent for the
Notes, and will perform the duties specified herein. Each Note will bear
interest at either a fixed rate (the "Fixed Rate Notes"), or a floating rate
(the "Floating Rate Notes"). The Notes will be issued in U.S. dollars or other
currencies, currency units or composite currencies (the "Specified Currency").
Each Note will be represented by either a Global Security (as defined below)
delivered to the Bank, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a
certificate issued in definitive form delivered to the holder thereof or a
person designated by such holder (a "Certificated Note"). Certificated Notes
will not be exchangeable for Book-Entry Notes, and Book-Entry Notes will not
be exchangeable for and will not otherwise be issuable as Certificated Notes
except in limited circumstances.
Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may subsequently
be amended as the result of changes in DTC's operating procedures, and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indenture or the Notes shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Bank will perform
the custodial, document control and administrative functions described below,
in accordance with its respective obligations under a Letter of Representation
from the Company and the Bank to DTC, dated as of the date of the Agreement
(the "Letter of Representation"), and a Medium-Term Note Certificate Agreement
between the Bank and DTC, dated as of [December 2, 1988] [March 10, 1989], and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
U.S. $200,000,000 principal amount (or, if the Specified
Currency is other than U.S. dollars, the equivalent thereof
in such Specified Currency) of all such Notes that have the
same Purchase Price, Settlement Date, Maturity Date,
redemption or repayment provisions, Interest Payment
Date(s), Original Issue Date, original issue discount
provisions (if any), and, in the case of Fixed Rate Notes,
Interest Rate, modified payment upon redemption, repayment
or acceleration (if any), amortization schedule (if any) or,
in the case of Floating Rate Notes, Initial Interest Rate,
Interest Payment Period, Calculation Agent, Interest Rate
Basis, Index Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Alternate Rate
Event Spread (if any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any), Index currency (if any) and,
in each case, any other relevant terms (collectively
"Terms"). Each Global Security will be dated and issued as
of the date of its authentication by the Bank. Each Global
Security will bear an "Interest Accrual Date," which will be
(i) with respect to any Global Security (or any portion
thereof) issued on any date of settlement, its original
issuance date and (ii) with respect to any Global Security
(or any portion thereof) issued subsequently upon exchange
of a Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest Payment
Date to which interest had been paid or duly provided for on
the predecessor Global Security or Securities (or if no such
payment or provision has been made, the original issuance
date of the predecessor Global Security), regardless of the
date of authentication of such subsequently issued Global
Security. No Global Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes or (ii) any
Certificated Note.
The Company has arranged with the CUSIP Numbers
Service Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a series
of approximately 900 CUSIP numbers (including tranche
numbers) for assignment to the Global Securities
representing the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a written list of
each series of reserved CUSIP numbers and has delivered
to the Bank and DTC the written list of 900 CUSIP
numbers of such series. The Bank 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 Bank has assigned to Global Securities. At any time
when fewer than 100 of the reserved CUSIP numbers of
either series remain unassigned to Global Securities, the
Bank shall so advise the Company and, if it deems
necessary, the Company will reserve additional CUSIP
numbers for assignment to Global Securities representing
Book-Entry Notes. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to the Bank and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC with respect to
such 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 Note in the
account of such Participants. The ownership interest of
such beneficial owner in such Note will be recorded
through the records of such Participants or through the
separate records of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Bank may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i)
the CUSIP numbers of two or more Outstanding Global
Securities that represent Book-Entry Notes having the same
Terms and for which interest has been paid to the same date,
(ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its Participants
(including the Bank) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, the Bank will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On the
specified exchange date, the Bank will exchange such Global
Securities for a single Global Security bearing the new
CUSIP number and a new Interest Accrual Date, and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. Notwithstanding
the foregoing, if the Global Securities to be exchanged
exceed U.S.$200,000,000 (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in such
Specified Currency) in aggregate principal amount, one
Global Security will be authenticated and issued to
represent each U.S. $200,000,000 principal amount (or, if
the Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) of the
exchanged Global Security and an additional Global Security
will be authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months
or more from its date of issue.
Currency: Book-Entry Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Notice of Redemption The Bank will give notice to DTC prior to each
and Repayment Dates: redemption date or repayment date (as specified in the
Note), if any, at the time and in the manner set forth in
the Letter of Representation.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Book-Entry Notes will be issued in
denominations of $1,000 (or, if the Specified Currency is
other than U.S. dollars, the minimum denomination
thereof specified in the applicable Pricing Supplement) or
any amount in excess thereof which is an integral
multiple of $1,000 (or, if the Specified Currency is other
than U.S. dollars, integral multiples of such minimum
denomination thereof specified in the applicable Pricing
Supplement). Global Securities will be denominated in
principal amounts not in excess of U.S. $200,000,000 (or,
if the Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency). If one or
more Book-Entry Notes having an aggregate principal
amount in excess of U.S. $200,000,000 (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) would, but
for the preceding sentence, be represented by a single
Global Security, then one Global Security will be issued
to represent each U.S. $200,000,000 principal amount (or,
if the Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) of such
Book-Entry Note or Notes and an additional Global
Security will be issued to represent any remaining
principal amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities representing
such Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Interest: General. Unless otherwise specified in the applicable
Pricing Supplement, interest on each Book-Entry Note
will accrue from the Interest Accrual Date of the Global
Security representing such Book-Entry Note. Each
payment of interest on a Book-Entry Note will include
interest accrued from and including the immediately
preceding Interest Payment Date in respect of which
interest has been paid or duly made available for payment
(or from and including the date of issue, if no interest has
been paid with respect to such Book-Entry Note) to but
excluding the related Interest Payment Date or the
Maturity Date, as the case may be. Interest payable at the
maturity or upon redemption or repayment of a
Book-Entry Note will be payable to the person to whom
the principal of such Note is payable. Standard & Poor's
Corporation will use the information received in the
pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other information
regarding the related Global Security in the appropriate
weekly bond report published by Standard & Poor's
Corporation.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the fifteenth
calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Interest Payment Dates for
Fixed Rate Book-Entry Notes will be as specified in the
applicable Pricing Supplement; provided that, in addition
to other amounts due and payable on any Maturity Date,
interest accrued from and including the immediately
preceding Interest Payment Date shall be paid on such
Maturity Date. In the event that any Interest Payment
Date or Maturity Date for a Fixed Rate Book-Entry Note
is not a Business Day, the payment due on such day shall
be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from
and after such Interest Payment Date or Maturity Date to
such next succeeding Business Day. The first payment of
interest on any Fixed Rate Book-Entry Note issued
between a Record Date and an Interest Payment Date will
be made on the Interest Payment Date following the next
succeeding Record Date.
Floating Rate Book-Entry Notes. Except as provided in
the applicable Pricing Supplement, interest will be
payable in the case of Floating Rate Book-Entry Notes
which reset (i) daily, weekly or monthly, on a Business
Day that occurs in each month or that occurs in each
third month, as specified in the applicable Pricing
Supplement; (ii) quarterly, on a Business Day that occurs
in each third month, as specified in the applicable Pricing
Supplement; (iii) semiannually, on a Business Day that
occurs in each of two months of each year, as specified
in the applicable Pricing Supplement; and (iv) annually,
on a Business Day that occurs in one month of each year,
as specified in the applicable Pricing Supplement (each,
an "Interest Payment Date"), and, in each case, on the
Maturity Date. If an Interest Payment Date for Floating
Rate Book-Entry Notes would otherwise be a day that is
not a Business Day, such Interest Payment Date will be
the next succeeding Business Day and no interest shall
accrue for the period from and after such Interest
Payment Date, except that if such Note is a LIBOR Note
and such Business Day falls in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day. In the case of a
Floating Rate Book-Entry Note issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Notice of Interest Payment and Record Dates. On the first
Business Day of January, April, July and October of each
year, the Bank will deliver to the Company and DTC a
written list of Record Dates and Interest Payment Dates
that will occur with respect to Book-Entry Notes during
the three-month period beginning on such first Business
Day.
Calculation of Interest: Fixed Rate Book-Entry Notes. Unless otherwise specified
in the applicable Pricing Supplement, interest on Fixed
Rate Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest
rates on Floating Rate Book-Entry Notes will be
determined as set forth in the form of such Notes. Interest
on Floating Rate Book-Entry Notes will be calculated on
the basis of actual days elapsed and a year of 360 days
except that in the case of Treasury Rate Notes, interest
will be calculated on the basis of the actual number of
days in the year.
Payments of Principal Payments of Interest. Promptly after each Record Date,
and Interest: the Bank will deliver to the Company and DTC a written
notice specifying by CUSIP number the amount of
interest to be paid on each Global Security other than an
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or any earlier redemption or repayment date) and
the total of such amounts. DTC will confirm the amount
payable on each such Global Security on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's Corporation. In the case
of Amortizing Notes, the Bank will provide separate
written notice to DTC prior to each Interest Payment
Date at the time and in the manner set forth in the Letter
of Representation. The Company will pay to the Bank, as
paying agent, the total amount of interest due on such
Interest Payment Date (and, in the case of an Amortizing
Note, principal and interest) (other than at maturity), and
the Bank will pay such amount to DTC at the times and
in the manner set forth below under "Manner of
Payment."
Payments at Maturity or Upon Redemption or Repayment. On or
about the first Business Day of each month, the Bank will
deliver to the Company and DTC a written list of principal
and interest to be paid on each Global Security other than
an Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following month. The
Company and DTC will confirm the amounts of such principal
and interest payments with respect to each such Global
Security on or about the fifth Business Day preceding the
Maturity Date or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Bank will
provide separate written notice to DTC prior to the Maturity
Date and any redemption or repayment date, as the case may
be, at the times and in the manner set forth in the Letter
of Representation. The Company will pay to the Bank, as the
paying agent, the principal amount of such Global Security,
together with interest due at such Maturity Date or
redemption or repayment date. The Bank will pay such amounts
to DTC at the times and in the manner set forth below under
"Manner of Payment." If any Maturity Date or redemption or
repayment date of a Global Security representing Book-Entry
Notes is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day with
respect to such Book-Entry Note. No interest shall accrue
for the period from and after the Maturity Date or
redemption or repayment date to such next succeeding
Business Day. Promptly after payment to DTC of the principal
and interest due on the Maturity Date or redemption or
repayment date of such Global Security, the Bank will cancel
such Global Security in accordance with the terms of the
Indenture and deliver it to the Company with a certificate
of cancellation.
Manner of Payment. Payments on Global Securities denominated
in U.S. dollars will be made in the manner described below.
Payments on Global Securities denominated in a Specified
Currency, other than U.S. dollars will be made in accordance
with DTC's "Issuing/Paying Agent General Operating
Procedures and Participant Terminal System Procedures for
Medium-Term Notes (MTNs) Including Deposit Notes and
Medium-Term Bank Notes," subject, further, to the provisions
of the Notes. The total amount of any principal and interest
due on Global Securities on any Interest Payment Date or at
maturity or upon redemption or repayment shall be paid by
the Company to the Bank in funds available for immediate use
by the Bank not later than 9:30 A.M. (New York City time) on
such date. The Company will make such payment on such Global
Securities by instructing the Bank to withdraw funds from an
account maintained by the Company at the Bank. The Company
will confirm such instructions in writing to the Bank.
Payment shall be made prior to 10:00 A.M. (New York City
time) or as soon thereafter as practicable, on each Maturity
Date or redemption or repayment date or, if either such date
is not a Business Day, as soon as possible thereafter, the
Bank 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 Global Securities on any
Maturity Date or redemption or repayment date. On each
Interest Payment Date or, if any such date is not a Business
Day, as soon as possible thereafter, interest payments and,
in the case of Amortizing Notes, interest and principal
payments shall be made to DTC in same day funds in
accordance with existing arrangements between the Bank and
DTC. Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use to
the respective Participants in whose names the Book-Entry
Notes represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the Company
nor the Bank shall have any responsibility or liability for
the payment by DTC to such Participants of the principal of
and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC or
other person responsible for forwarding payments directly
to the beneficial owner of such Note.
Preparation If any order to purchase any Book-Entry Notes is
of Pricing Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and will
arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424 under the Securities Act and will deliver the
number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request by the close
of business on the following Business Day. The relevant
Agent will cause such Pricing Supplement to be delivered
to the purchaser of the Note. In each instance that a
Pricing Supplement is prepared, the Agents receiving
such Pricing Supplement will affix the Pricing
Supplement to Prospectuses prior to their use. Outdated
Pricing Supplements, and the Prospectuses to which they
are attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement" with
respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
pursuant to the timetable for settlement set forth below
unless the Company and the purchaser agree to settlement
on another day, which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent shall
be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such
Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Book-Entry Note, the Initial
Interest Rate (if known at such time),
Interest Payment Dates, Interest Payment
Period, Calculation Agent, Interest Rate
Basis, Index Maturity, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any) and Maximum Interest Rate (if
any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. The Specified Currency
8. Agent's commission, if any, determined as
provided in the Agreement.
9. Whether the Note is an Indexed Note, and if
it is an Indexed Note, the Indexed Currency,
the Currency Interest Rate Basis and the
Determination Agent.
10. Whether the Note is a Dual Currency Note, and
if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
11. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
12. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and if so, the Final Maturity Date
of such Note.
13. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of
OID, the yield to maturity, the initial
accrual period OID and the applicability
of Modified Payment upon Acceleration
(and, if so, the Issue Price).
14. Any other applicable Terms.
B. The Company will advise the Bank by telephone
or electronic transmission (confirmed in
writing at any time on the same date) of the
information set forth in Settlement Procedure
"A" above. The Bank will then assign a CUSIP
number to the Global Security representing
such Note and will notify the Company and the
Agent of such CUSIP number by telephone as
soon as practicable.
C. The Bank will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement
information to DTC, the relevant Agent and
Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for
such Note, the number of days by which
such date succeeds the related DTC Record
Date (which in the case of Floating Rate
Notes which reset daily or weekly, shall
be the date five calendar days
immediately preceding the applicable
Interest Payment Date and, in the case of
all other Notes, shall be the Record Date
as defined in the Note) and, if known,
the amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
5. Whether such Note is an Amortizing Note
(by an appropriate notation in the
comments field of DTC's Participant
Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agents
and the Bank.
D. The Bank will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to the Bank's
participant account at DTC.
F. The Bank will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Bank's participant account and credit
such Note to the relevant Agent's
participant account and (ii) debit such
Agent's settlement account and credit the
Bank's settlement account for an amount
equal to the price of such Note less such
Agent's commission, if any. The entry of
such a deliver order shall constitute a
representation and warranty by the Bank to
DTC that (a) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (b) the Bank is
holding such Global Security pursuant to the
Medium Term Note Certificate Agreement
between the Bank and DTC.
G. Unless the relevant Agent purchased such
Note as principal, such Agent will enter an
SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to such Agent's participant
account and credit such Note to the
participant accounts of the Participants
with respect to such Note and (ii) to debit
the settlement accounts of such Participants
and credit the settlement account of such
Agent for an amount equal to the price of
such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. With respect to Notes denominated in U.S.
dollars, the Bank will credit to the U.S.
dollar account of the Company maintained at a
bank located in New York City (or with
respect to Notes payable in a Specified
Currency other than U.S. dollars, to a bank
notified to such Agent from time to time in
writing, which bank shall be located outside
the United Kingdom in the case of Notes
payable in a Specified Currency other than
pounds sterling and which mature not later
than five years from and including the date
of issue thereof), notified to the Bank from
time to time in writing, in funds available
for immediate use in the amount transferred
to the Bank, in accordance with Settlement
Procedure "F".
J. Unless the relevant Agent purchased such
Note as principal, such Agent will confirm
the purchase of such Note to the purchaser
either by transmitting to the Participants
with respect to such Note a confirmation
order or orders through DTC's institutional
delivery system or by mailing a written
confirmation to such purchaser.
K. Quarterly, the Bank will send to the Company
a statement setting forth the principal
amount of Notes outstanding as of that date
under the Indenture and setting forth a
brief description of any sales of which the
Company has advised the Bank but which have
not yet been settled.
Settlement Procedures For sales by the Company of Book-Entry Notes to or
Timetable: through an Agent for settlement on the first
Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above shall
be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------------
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon
and 2:00 P.M., respectively, on the first Business
Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedure
"B" and "C" shall be completed as soon as such
rate has been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the second
Business Day before the settlement date.
Settlement Procedure "H" is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or cancelled, the
Bank, after receiving notice from the Company or
the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.
on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If the Bank fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Bank may deliver
to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to
the Bank's participant account, provided that
the Bank's participant account contains a
principal amount of the Global Security
representing such Note that is at least equal to
the principal amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Security, the Bank will mark such Global
Security "cancelled," make appropriate entries
in the Bank's records and send such cancelled
Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be cancelled and not immediately reassigned. If
a withdrawal message is processed with respect
to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the Bank
will exchange such Global Security for two
Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be
cancelled immediately after issuance and the
other of which shall represent the remaining
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
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 relevant
Agent may enter SDFS deliver orders through
DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures
"F" and "G", respectively. Thereafter, the Bank
will deliver the withdrawal message and take the
related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes to have been represented by a Global
Security, the Bank will provide, in accordance
with Settlement Procedures "D" and "F", for the
authentication and issuance of a Global Security
representing the Book-Entry Notes to be
represented by such Global Security and will
make appropriate entries in its records.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the
Bank to risk or expend its own funds in
connection with any payments to the Company, the
Agents, DTC or any holders of Notes, it being
understood by all parties that payments made by
the Bank to the Company, the Agents, DTC or any
holders of Notes shall be made only to the
extent that funds are provided to the Bank for
such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Bank will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Bank. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to any Certificated Note
(or any portion thereof) issued on any date of
settlement, such date of settlement and (ii) with respect
to any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a Certificated
Note or in lieu of a destroyed, lost or stolen Certificated
Note, the original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated
Note.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Bank.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine
months or more from its date of issue.
Currency: Certificated Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Certificated Notes will be issued in
principal amounts of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable Pricing
Supplement), or any amount in excess thereof which is
an integral multiple of $1,000 (or, if the Specified
Currency is other than U.S. dollars, integral multiples of
such minimum denomination thereof specified in the
applicable Pricing Supplement).
Interest: General. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest periods.
Unless otherwise specified in the applicable Pricing
Supplement, each payment of interest on a Certificated
Note will include interest accrued from and including
the immediately preceding Interest Payment Date to but
excluding the related Interest Payment Date or the
Maturity Date, as the case may be.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
Fixed Rate Certificated Notes. Interest Payment Dates
for Fixed Rate Certificated Notes will be made on the
dates specified in the applicable Pricing Supplement;
provided that, in addition to other amounts due and
payable on any Maturity Date, interest accrued from and
including the immediately preceding Interest Payment
Date shall be paid on such Maturity Date. In the event
that any Interest Payment Date or Maturity Date for a
Fixed Rate Certificated Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day, and no interest shall accrue
on such payment for the period from and after such
Interest Payment Date or Maturity Date to such next
succeeding Business Day. The first payment of interest
on any Fixed Rate Certificated Note issued between a
Record Date and an Interest Payment Date will be made
on the Interest Payment Date following the next
succeeding Record Date.
Floating Rate Certificated Notes. Except as provided in
the applicable Pricing Supplement, interest will be
payable in the case of Floating Rate Certificated Notes
which reset (i) daily, weekly or monthly, on a Business
Day that occurs in each month or that occurs in each
third month, as specified in the applicable Pricing
Supplement; (ii) quarterly, on a Business Day that
occurs in each third month, as specified in the
applicable Pricing Supplement; (iii) semiannually, on a
Business Day that occurs in each of two months of each
year, as specified in the applicable Pricing Supplement;
and (iv) annually, on a Business Day that occurs in one
month of each year, as specified in the applicable
Pricing Supplement (each, an "Interest Payment Date"),
and, in each case, on the Maturity Date. If an Interest
Payment Date for Floating Rate Certificated Notes
would otherwise be a day that is not a Business Day,
such Interest Payment Date will be the next succeeding
Business Day and no interest shall accrue for the period
from and after such Interest Payment Date, except that
if such Note is a LIBOR Note and such Business Day
falls in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding
Business Day. In the case of a Floating Rate
Certificated Note issued between a Record Date and an
Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Record Date.
Calculation of Interest: Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest
on Fixed Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
Floating Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement, interest
rates on Floating Rate Certificated Notes will be
determined as set forth in the form of such Notes.
Interest on Floating Rate Certificated Notes will be
calculated on the basis of actual days elapsed and a year
of 360 days except that in the case of Treasury Rate
Notes, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal Payments on Certificated Notes denominated in U.S.
and Interest: dollars will be made in the manner described below.
Payments on Certificated Notes denominated in a
Specified Currency other than U.S. dollars will be made
in the manner described below, except as otherwise
provided in the Notes. The Bank will pay the principal
amount of each Certificated Note at maturity or upon
redemption or repayment upon presentation and
surrender of such Note to the Bank. Such payment,
together with payment of interest due at maturity or
upon redemption or repayment of such Note, will be
made in funds available for immediate use by the Bank
and in turn by the holder of such Note. Certificated
Notes presented for payment to the Bank at maturity or
upon redemption or repayment will be cancelled by the
Bank and delivered to the Company with a certificate of
cancellation. All interest payments on a Certificated
Note (other than interest due at maturity or upon
redemption or repayment) will be made by check drawn
on the Bank (or another person appointed by the Bank)
and mailed by the Bank to the person entitled thereto as
provided in such Note and the Indenture; provided,
however, that the holder of U.S. $5,000,000 (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) or more
in aggregate principal amount of Certificated Notes
(having identical terms and provisions) will be entitled
to receive payments of interest by wire transfer of
immediately available funds to an account maintained
by the holder within the United States. Following each
Record Date, the Bank will furnish the Company with a list
of interest payments to be made on the following
Interest Payment Date for each Certificated Note
and in total for all Certificated Notes. Interest
at maturity or upon redemption or repayment will be
payable to the person to whom the payment of
principal is payable. The Bank will provide monthly
to the Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing or to be redeemed in
the next month. The Bank will be responsible for
withholding taxes on interest paid on Certificated
Notes as required by applicable law. If the
Maturity Date or redemption or repayment date 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, Maturity Date or
redemption or repayment date, as the case may be.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such
Note and will arrange to file such Pricing
Supplement with the Commission in accordance with
the applicable paragraph of Rule 424 under the
Securities Act and will deliver the number of
copies of such Pricing Supplement to the relevant
Agent as such Agent shall request by the close of
business on the following Business Day. The
relevant Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note. In
each instance that a Pricing Supplement is
prepared, the Agents receiving such Pricing
Supplement will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files),
will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such
Agent's delivery of such Note against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note. All offers
accepted by the Company will be settled on or
before the third Business Day next succeeding the
date of acceptance pursuant to the timetable for
settlement set forth below, unless the Company and
the purchaser agree to settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company to or through
an Agent shall be as follows:
A. The relevant Agent will advise the Company
by facsimile transmission or telephone that
such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, the applicability
of Annual Interest Payments and whether
such Note is an Amortizing Note and, if so,
the amortization schedule, or, in the case
of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such
time), Interest Payment Dates, Interest
Payment Period, Calculation Agent, Interest
Rate Basis, Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any), and the Alternate Rate Event
Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined as
provided in the Agreement.
11. Specified Currency
12. Denominations.
13. Whether the Note is an Indexed Note, and if
it is an Indexed Note, the Indexed
Currency, the Currency Interest Rate Basis
and the Determination Agent.
14. Whether the Note is a Dual Currency Note,
and if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
15. If applicable, wire transfer instructions,
including name of banking institution where
transfer is to be made and account number.
16. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
17. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
18. Whether the Note is an OID Note, and if it
is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and, if
so, the Issue Price).
19. Any other applicable terms.
B. The Company will advise the Bank by
telephone or electronic transmission
(confirmed in writing at any time on the
sale date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Bank
a pre-printed fourply packet for such Note,
which packet will contain the following
documents in forms that have been approved
by the Company, the relevant Agent and the
Bank:
1. Note with customer confirmation.
2. Stub One - For the Bank.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Bank will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Bank.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by such Agent for
payment to the U.S. dollar account of the
Company maintained at the Bank, New York, New
York (or, with respect to Notes payable in a
Specified Currency other than U.S. dollars, to
an account maintained at a bank selected by the
Company which bank shall be located outside the
United Kingdom in the case of Notes payable in
a Specified Currency other than pounds sterling
that mature not later than five years from and
including the date of issue thereof) in funds
available for immediate use, of an amount equal
to the price of such Note less such Agent's
commission, if any. In the event that the
instructions given by such Agent for payment to
the account of the Company are revoked, the
Company will as promptly as possible wire
transfer to the account of such Agent an amount
of immediately available funds equal to the
amount of such payment made.
E. Unless the relevant Agent purchased such Note
as principal, such Agent will deliver such Note
(with confirmation) to the customer against
payment in immediately available funds. Such
Agent will obtain the acknowledgment of receipt
of such Note by retaining Stub Two.
F. The Bank will send Stub Three to the Company by
first-class mail. Periodically, the Bank will
also send to the Company a statement setting
forth the principal amount of the Notes
Outstanding as of that date under the Indenture
and setting forth a brief description of any
sales of which the Company has advised the Bank
but which have not yet been settled.
Settlement Procedures For sales by the Company of Procedures Certificated
Timetable: Notes to or through an Agent, Settlement Procedures
"A" through "F" set forth above shall be completed on
or before the respective times (New York City time) set
forth below:
Settlement
Procedure
----------
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant Agent
will notify the Company and the Bank by telephone and
return such Note to the Bank. Upon receipt of such
notice, the Company will immediately wire transfer to
the account of such Agent an amount equal to the
amount previously credited thereto in respect of such
Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Distribution
Agreement with the Company, then the Company will
reimburse such Agent or the Bank, 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 Bank
will mark such Note "cancelled," make appropriate
entries in the Bank's records and send such Note to the
Company.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank to
risk or expend its own funds in connection with any
payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all parties that
payments made by the Bank to the Company, the
Agents, DTC or any holders of Notes shall be made
only to the extent that funds are provided to the Bank
for such purpose.
EXHIBIT C
[Letterhead of Purchaser]
_______, 199_
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter sets forth the terms and conditions upon which
[name of Purchaser] (the "Purchaser") proposes to purchase as principal from
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. (the "Company") the Medium-Term Notes (the
"Purchased Securities") of the Company described in Schedule I hereto and in
the Company's Prospectus dated March 12, 1999, as supplemented by the
Prospectus Supplement dated April 15, 1999 and Pricing Supplement No. [insert
number] relating to the Purchased Securities (collectively, the "Prospectus").
The Company acknowledges that it has entered into a
Distribution Agreement, dated April 15, 1999 (the "Distribution Agreement"),
with ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, (the "Agent", and
together with any additional agents appointed from time to time pursuant to
Section 13 thereof, the "Agents") providing for the sale of its Medium-Term
Notes due nine months or more from date of issue to or through the Agents
acting as principal or agent. The Company represents and warrants to the
Purchaser that the representations and warranties of the Company made in the
Distribution Agreement are true and correct as though made on and as of the
date hereof and will be true and correct on and as of the Time of Delivery;
provided, however, that the following terms have the meanings indicated: (i)
"Agent" means the Purchaser; (ii) "this Agreement" means this letter and (iii)
"Notes" means the Purchased Securities.
The Company and the Purchaser further agree that the following
provisions of the Distribution Agreement shall be incorporated by reference
into and made a part of this letter with respect to the Purchased Securities,
as if the Purchaser were an Agent purchasing Notes as principal pursuant to a
Terms Agreement and this letter were a Terms Agreement (and the Purchaser were
the Agent signatory thereto): (i) Section 4, for so long as the Purchaser
shall be required to deliver a prospectus in connection with the Purchased
Securities; (ii) Section 5; (iii) Section 6; and (iv) Section 7.
Terms used herein without definition have the meanings
specified in the Distribution Agreement.
Very truly yours,
[NAME OF PURCHASER]
By:
-------------------------------------------
Name:
Title:
Agreed and accepted.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
By
---------------------------------
Name:
Title:
Schedule I
Designation:
Principal Amount:
Issue Price:
Original Issue Date:
Interest rate and
other provisions: As described in the Prospectus
Purchase Price:
Time of Delivery:
Place of Delivery:
Manner of payment As described in the Administrative
and delivery: Procedures relating to [Book-Entry]
[Certificated] Notes or as otherwise agreed
by the parties
Other Terms: