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EXHIBIT 1.2
SUNDSTRAND CORPORATION
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
December __, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
First Chicago Capital Markets, Inc.
One First National Plaza
Chicago, Illinois 60670
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code NC 1007-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Continuously Offered Products
Dear Sirs:
Sundstrand Corporation, a Delaware corporation (the "Company"), confirms
its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, First Chicago Capital Markets, Inc. and NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC (each, an "Agent", and collectively, the "Agents") with respect
to the issue and sale by the Company of its Medium-Term Notes Due Nine Months or
More From Date of Issue (the "Notes"). The Notes are to be issued pursuant to
an Indenture, dated as of December 1, 1998, as amended or modified from time to
time (the "Indenture"), between the Company and The First National Bank of
Chicago, as trustee (the "Trustee"). As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $250,000,000 aggregate initial
offering price of Notes (or its equivalent, based upon the exchange rate on the
applicable trade date in such foreign or composite currencies as the Company
shall designate at the time of issuance) to or through the Agents pursuant to
the terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be sold, but are not required to be sold, to or through the
Agents pursuant to the terms of
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this Agreement, all as though the issuance of such additional Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-00801 and 333-66981)
for the registration of debt securities, including the Notes, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statements, including the pre-effective amendments thereto, have
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"),
and the Company has filed such post-effective amendments to the registration
statements as may be required prior to its acceptance of any offer for the
purchase of Notes and each such post-effective amendment has been declared
effective by the Commission. Such registration statements (as so amended, if
applicable) are collectively referred to herein as the "Registration Statement";
and the final prospectus and all applicable amendments or supplements thereto
(including the final prospectus supplement and pricing supplement relating to
the offering of Notes), in the form first furnished to the applicable Agent(s)
for use in confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to any acceptance by the Company of an
offer for the purchase of Notes; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus furnished by the Company after the
registration statement became effective and before any acceptance by the Company
of an offer for the purchase of Notes which omitted information to be included
upon pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations. For purposes of this Agreement, all
references to the Registration Statement, Prospectus or preliminary prospectus
or to any amendment or supplement thereto shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("▇▇▇▇▇").
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All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents. The Company agrees that it will not appoint any other
agents to act on its behalf, or to assist it, in the placement of the Notes.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company may accept or reject any offer for the purchase of Notes, in whole or in
part. Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have
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any liability to the Company in the event that any such purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser which is prepared to consummate the purchase of the
Notes and whose offer has been solicited by such Agent on an agency basis and
accepted by the Company, the Company shall (i) hold such Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) pay to such Agent any commission to which it would otherwise be
entitled absent such default.
(e) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal is referred to herein as a "Settlement Date"), and as of
any time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due Qualification of
the Company. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and to enter into this Agreement and consummate the transactions
contemplated in the Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result in
a material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect").
(ii) Due Incorporation, Good Standing and Due Qualification of
Significant Subsidiaries. Each significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if
any (each, a "Significant Subsidiary"), has been duly organized and is
validly existing as a corporation in good
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standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect; all of the issued and outstanding
shares of capital stock of each Significant Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and none of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Significant Subsidiary.
(iii) Registration Statement and Prospectus. The Company meets
the requirements for use of Form S-3 under the 1933 Act; the Registration
Statement (or any Rule 462(b) Registration Statement) has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement (or any Rule 462(b) Registration Statement) has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with; the Indenture
has been duly qualified under the 1939 Act; at the respective times that
the Registration Statement (including any Rule 462(b) Registration
Statement) and any post-effective amendment thereto (including the filing
of the Company's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement (including any Rule 462(b)
Registration Statement) and any amendments thereto complied and will comply
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; each preliminary prospectus and
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with the 1933
Act Regulations; each preliminary prospectus and the Prospectus delivered
to the applicable Agent(s) for use in connection with the offering of Notes
are identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T; and at the date hereof, at the date of the Prospectus and
each amendment or supplement thereto and at each Representation Date,
neither the Prospectus nor any amendment or supplement thereto included or
will include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in
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or omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company
in writing by the Agents expressly for use in the Registration Statement or
the Prospectus.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Securities Exchange Act of 1934, as
amended (the "1934 Act"), as applicable, and the 1933 Act Regulations and
the rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Agent
expressly for use in the Prospectus relating to such Notes.
(v) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included in
the Registration Statement and the Prospectus, present fairly the
consolidated financial position of the Company and its subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
consolidated statement of operations, stockholders' equity and cash flows
of the Company and its subsidiaries, or such other entity, as the case may
be, for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved; the
supporting schedules, if any, included in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein; the selected financial data and the summary
financial information included in the Registration
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Statement and the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus; and any pro forma consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(vii) No Material Changes. Neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material decrease in the capital
stock or material increase in the long-term debt of the Company or any of
its subsidiaries (other than decreases in the capital stock of the Company
as a result of stock repurchases in the ordinary course of business) or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus.
(viii) Authorization, etc. of this Agreement, the Indenture and
the Notes. This Agreement has been duly authorized, executed and delivered
by the Company; the Indenture has been duly authorized, executed and
delivered by the Company and will be a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law), and except further as enforcement thereof may be
limited by requirements that a claim with respect to any debt securities
issued under the Indenture that are payable in a foreign or composite
currency (or a foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States;
the Notes have been duly authorized by the Company for offer, sale,
issuance and delivery pursuant to this Agreement and, when issued,
authenticated and delivered in the manner provided for in the Indenture and
delivered against payment of the consideration therefor, will constitute
valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement thereof
may be limited by
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bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any Notes
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate or exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes will be
substantially in a form previously certified to the Agents and contemplated
by the Indenture; and each holder of Notes will be entitled to the benefits
of the Indenture.
(ix) Descriptions of the Indenture and the Notes. The
Indenture and the Notes conform and will conform in all material respects
to the statements relating thereto contained in the Prospectus and are
substantially in the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(x) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of the provisions of its
charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement, the
Indenture, the Notes and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company in connection with
the transactions contemplated by the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and
sale of the Notes and the use of proceeds therefrom as described in the
Prospectus) and the compliance by the Company with its obligations
hereunder and under the Indenture, the Notes and such other agreements or
instruments have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or the
passage of time or both, conflict with or constitute a breach of, or
default or event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of its subsidiaries
(a "Repayment Event"), or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments, nor will such action result in
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any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations, except for any such violations (other than violations of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries) that would not result in a Material Adverse Effect.
(xi) Absence of Proceedings. Other than as set forth or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate reasonably be expected
to have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xii) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any applicable statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation
thereof including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of hazardous materials or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of hazardous materials (collectively, "Environmental Laws"), (B)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (C)
there are no events or circumstances that may reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to hazardous
materials or any Environmental Laws.
(xiii) No Filings, Regulatory Approvals etc. No filing with,
or approval, authorization, consent, license, registration, qualification,
order or decree of, any court or governmental authority or agency, domestic
or foreign, is necessary or required for the due authorization, execution
and delivery by the Company of this Agreement, the Indenture and the Notes
or for the performance by the Company of the transactions contemplated in
this Agreement, the Indenture or the Prospectus, except such as have
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been previously made, obtained or rendered, as applicable.
(xiv) Investment Company Act. The Company is not, and upon
the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the ("1940 Act").
(xv) Commodity Exchange Act. The Notes, upon issuance, will
be excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission under the Commodity
Exchange Act (the "Commodity Exchange Act Regulations").
(xvi) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated Baa1 by
▇▇▇▇▇'▇ Investors Service, Inc. and A- by Standard & Poor's Ratings
Services, or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a) hereof.
(b) Additional Certifications. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company by the
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto.
The Agents may engage the
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services of any broker or dealer in connection with the resale of the Notes
purchased by them as principal and may allow all or any portion of the discount
received from the Company in connection with such purchases to such brokers or
dealers. At the time of each purchase of Notes from the Company by one or more
Agents as principal, such Agent or Agents shall specify the requirements for the
officers' certificate, opinion of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Notes from the Company as principal and one
or more of such Agents shall fail at the Settlement Date to purchase the Notes
which it or they are obligated to purchase (the "Defaulted Notes"), then the
nondefaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the nondefaulting
Agents shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective initial
underwriting obligations bear to the underwriting obligations of all
nondefaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so purchased
by all of such Agents on the Settlement Date, such agreement shall
terminate without liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents or the Company shall have the right to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time
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for any period of time or permanently. As soon as practicable after receipt of
instructions from the Company, such Agent will suspend solicitation of offers
for the purchase of Notes from the Company until such time as the Company has
advised such Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
are set forth in Exhibit C hereto, which procedures shall not be amended without
the consent of the Company, the Agents and the Trustee. The Agents and the
Company agree to perform, and the Company agrees to cause the Trustee to agree
to perform, their respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), (ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv)
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, or of any order preventing or suspending the use of
any preliminary prospectus, or of the initiation of any proceedings for that
purpose or (v) any change in the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt securities (including
the Notes) of the Company, or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of the Program or any
such
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debt securities, or the withdrawal by any nationally recognized statistical
rating organization of its rating of the Program or any such debt securities.
The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Filing or Use of Amendments. The Company will give the Agents
advance notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement (including any filing under Rule 462(b) of the 1933
Act Regulations) or any amendment or supplement to the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus
(other than an amendment or supplement thereto providing solely for the
determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish to the Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which the Agents or
counsel for the Agents shall object.
(c) Delivery of the Registration Statement. The Company has furnished to
each Agent and to counsel for the Agents, without charge, signed and conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and signed and conformed copies of all consents and certificates of experts.
The Registration Statement and each amendment thereto furnished to the Agents
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery of the Prospectus. The Company will deliver to each Agent,
without charge, as many copies of each preliminary prospectus as such Agent may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used.
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(f) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for the
purchase of Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Company will promptly prepare and file
with the Commission, subject to Section 4(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement and Prospectus comply with such requirements, and the
Company will furnish to the Agents, without charge, such number of copies of
such amendment or supplement as the Agents may reasonably request. In addition,
the Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing. The Company shall also cause the Prospectus to be
amended or supplemented to include financial information with respect thereto
and corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on the date on which
there shall be released to the general public financial information included in
or derived from the audited consolidated financial statements of the Company for
the preceding fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing. The Company shall also cause the Prospectus to be
amended or supplemented to include such audited consolidated financial
statements and the report or reports, and consent or consents to such inclusion,
of the independent accountants with respect thereto, as well as such other
information and explanations
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as shall be necessary for an understanding of such consolidated financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(i) Earnings Statements. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
agreed upon between one or more Agents acting as principal and the Company,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Company and the Settlement Date with respect thereto, the Company will
not, without the prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such agreement or commercial paper in the ordinary course of
business).
(l) Use of Proceeds. The Company will use the net proceeds received by
it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (f), (g) or (h) of this Section 4
during any period from the time (i) the Agents shall have suspended solicitation
of offers for the purchase of Notes in their capacity as agents pursuant to a
request from the Company and (ii) no Agent shall then hold any Notes purchased
from the Company as principal, as the case may be, until the time the Company
shall determine that solicitation of offers for the purchase of Notes should be
resumed or an Agent shall subsequently purchase Notes from the Company as
principal.
(n) Notice of Use of Proceeds. In the event that an amount in excess of
10% in the aggregate of the final net proceeds from any sale of Notes is used to
pay indebtedness owed to affiliates of any Agent, the Company shall inform the
Agent of such use of proceeds, and any such sale of Notes will be made in
accordance with Rule 2710(c)(8) of the NASD Conduct Rules.
SECTION 5. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from the Company as
principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through an Agent as
an agent of the Company, will be subject to the accuracy of the representations
and warranties on the part of the Company herein contained
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or contained in any certificate of an officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance and
observance by the Company of its covenants and other obligations hereunder, and
to the following additional conditions precedent:
(a) Effectiveness of Registration Statement. The Registration Statement
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents.
(b) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) Opinion of Counsel for the Company. The favorable opinion
of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Vice President, General Counsel and Secretary of the
Company, to the effect set forth in Exhibit B hereto and to such further
effect as the Agents may reasonably request.
(2) Opinion of Counsel for the Agents. The favorable opinion
of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agents, with respect to the
matters set forth in paragraphs (1), (4), (5), (6), (7), (12), (13) and
(15) and the penultimate paragraph of Exhibit B hereto.
(c) Officer's Certificate. On the date hereof, there shall not have
been, since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Agents shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial officer and chief accounting officer of the Company, dated as of the
date hereof, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company herein contained
are true and correct with the same force and effect as though expressly made at
and as of the date of such certificate, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted, are pending or, to the best
of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letter of Ernst & Young LLP. On the date hereof, the Agents
shall have
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received a letter from Ernst & Young LLP, dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect provided in the
American Institute of Certified Public Accountants Statement on Auditing
Standards No. 72.
(e) Additional Documents. On the date hereof, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel may
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party except as
provided in Section 10 hereof and except that Sections 8, 9, 11, 14 and 15
hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of the Company shall be
made by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, such Agent shall promptly notify the Company and
deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company further covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent(s) or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as though made at
and as of each such time (it being understood that such representations and
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warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished to the Agent(s), forthwith a certificate dated
the date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which were last
furnished to the Agents are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(c) hereof, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate (it being understood that, in the case of clause (ii) above,
any such certificate shall also include a certification that there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise since the date of the agreement by
such Agent(s) to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agent(s) and to counsel to the
Agents the written opinion of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, General Counsel of the Company, or
other counsel satisfactory to the Agent(s), dated the date of filing with the
Commission or the date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agent(s), of the same tenor as the opinion referred to in
Section 5(b)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agent(s) with a letter
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substantially to the effect that the Agent(s) may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
one or more Agents as principal, the Company shall cause Ernst & Young LLP (or
other accountants satisfactory to the Agents) forthwith to furnish to the
Agent(s) a letter, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Agent(s), of the same
tenor as the letter referred to in Section 5(d) hereof but modified to relate to
the Registration Statement and Prospectus as amended and supplemented to the
date of such letter.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
8(d) hereof) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent),
reasonably incurred in
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investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Directors and Officers. Each Agent
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Agents expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable Agent(s)
and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel
to the indemnified shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
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No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 9. Contribution.
If the indemnification provided for in Section 8 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the applicable
Agent(s), on the other hand, from the offering of the Notes that were the
subject of the claim for indemnification or (ii) if the allocation provided by
clause (i) 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, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or
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alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
applicable Agent(s) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the applicable Agent(s) 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 above in this Section 9. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Agent, and each director of
the Company, each officer of the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement as
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originally filed and all amendments thereto and any preliminary prospectus, the
Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Company's accountants, counsel and
other advisors or agents (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD"); and
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
or any controlling person of an Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
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(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or indexed
to, one or more foreign or composite currencies, in the international financial
markets, or any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development or event involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of such
Agent(s), impracticable to market such Notes or enforce contracts for the sale
of such Notes, or (iii) trading in any securities of the Company has been
suspended or materially limited by the Commission or a national securities
exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or by the relevant authorities in the country or countries
of origin of any foreign or composite currency in which such Notes are
denominated and/or payable, or (v) the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt securities
(including the Notes) of the Company as of the date of such agreement shall have
been lowered or withdrawn since that date or if any such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Program or any such debt securities, or (vi) there shall have come
to the attention of such Agent(s) any facts that would cause such Agent(s) to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of such Notes, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time of such
delivery, not misleading.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal or (b) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(i) hereof, the provisions of Section
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hereof, the indemnity and contribution agreements set forth in Sections 8 and 9
hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in
effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Sundstrand Corporation
P.O. Box 7003
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: Vice President and General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
First Chicago Capital Markets, Inc.
One First National Plaza
Mail Suite 0595
Chicago, Illinois 60670
Attention: Corporate Securities Structuring
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code NC 1007-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Continuously Offered Products
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
▇▇▇▇ ▇▇▇▇▇
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in accordance with the terms of this Section 13.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons, officers and directors referred to in Sections 8 and 9
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 15. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER
THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF
APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW
YORK.
SECTION 16. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
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If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
SUNDSTRAND CORPORATION
By:
-------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
----------------------------
Authorized Signatory
FIRST CHICAGO CAPITAL MARKETS, INC.
By:
----------------------------
Title:
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By:
----------------------------
Title:
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
Percent of
Maturity Range Principal Amount
----------------
From 9 months to less than 1 year............................ .125%
From 1 year to less than 18 months........................... .150
From 18 months to less than 2 years.......................... .200
From 2 years to less than 3 years............................ .250
From 3 years to less than 4 years............................ .350
From 4 years to less than 5 years............................ .450
From 5 years to less than 6 years............................ .500
From 6 years to less than 7 years............................ .550
From 7 years to less than 10 years........................... .600
From 10 years to less than 15 years.......................... .625
From 15 years to less than 20 years.......................... .700
From 20 years to 30 years.................................... .750
Greater than 30 years........................................ 1/
--
------------------
1/ As agreed to by the Company and the applicable Agent at the time of sale.
-
Schedule A, Page 1
29
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
* LIBOR Reuters Page:
* LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
* Weekly Average
* Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Exhibit A, Page 1
30
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Exhibit A, Page 2
31
EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(1)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with corporate power
and authority to own its properties and conduct its business as described in the
Prospectus and to enter into the Distribution Agreement and consummate the
transactions contemplated in the Prospectus.
(2) The Company is duly qualified as a foreign corporation for the
transaction of business and is in good standing in all jurisdictions in which
the failure to be so qualified would have a Material Adverse Effect.
(3) Each of [NAMES OF SIGNIFICANT SUBSIDIARIES] have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, with corporate power
and authority to own their respective properties and conduct their respective
businesses as described in the Prospectus or, if not so described, as presently
conducted; except as stated in the Prospectus, all of the issued and outstanding
shares of capital stock of each such subsidiary has been duly authorized and are
validly issued, fully paid and non-assessable and, to the best of my knowledge,
are owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and
none of the outstanding shares of capital stock of any such subsidiary were
issued in violation of preemptive or other similar rights of any securityholder
of such subsidiary.
(4) The Distribution Agreement has been duly authorized, executed and
delivered by the Company.
(5) The Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
applicable Trustee) constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any debt securities issued under the Indenture that are
payable in a foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States.
Exhibit B, Page 1
32
(6) The Notes have been duly authorized by the Company for offer, sale,
issuance and delivery pursuant to the Distribution Agreement and, when issued,
authenticated and delivered in the manner provided for in the Indenture and
delivered against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Notes payable in a foreign or
composite currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States; and
the Notes, in the forms certified on the date hereof, are in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the Indenture.
(7) The Indenture and the Notes, in the forms certified on the date
hereof, conform in all material respects to the statements relating thereto
contained in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
(8) The information in the Prospectus under "Description of Debt
Securities", "Description of Notes", "Special Provisions Relating to Foreign
Currency Notes" and "Certain Federal Income Tax Considerations," to the extent
that such information constitutes matters of law, summaries of legal matters,
the Company's charter and bylaws or legal proceedings, or legal conclusions, has
been reviewed by me and is correct in all material respects.
(9) To the best of my knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
Agreement and Instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference as an exhibit
to the Registration Statement.
(10) The execution, delivery and performance of the Distribution
Agreement, the Indenture and the Notes and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated in the Prospectus, the
consummation of the transactions contemplated in the Prospectus (including the
issuance and sale of the Notes and the use of the proceeds therefrom as
described in the Prospectus) and the compliance by the Company with its
obligations thereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
charge or
Exhibit B, Page 2
33
encumbrance upon any assets, properties or operations of the Company or any of
its subsidiaries pursuant to, any Agreement and Instrument known to me, nor will
such action result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets, properties
or operations.
(11) To the best of my knowledge and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental proceedings,
other than routine litigation arising in the ordinary course, pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, to the best of my knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(12) The Registration Statement has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and to the
best of my knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(13) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and the Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1"), as to which I express no opinion), complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(14) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which I express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
(15) The Indenture has been duly qualified under the 1939 Act.
(16) The Company is not, and upon the issuance and sale of the Notes and
the application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the 1940 Act.
(17) The Notes, in the forms certified on the date hereof, will be
excluded or exempted under, or beyond the purview of, the Commodity Exchange Act
and the Commodity Exchange Act Regulations.
Exhibit B, Page 3
34
(18) No filing with, or approval, authorization, consent, license,
registration, qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of the Distribution
Agreement, the Indenture and the Notes or for the performance by the Company of
the transactions contemplated in the Distribution Agreement, the Indenture or
the Prospectus, except such as have been previously made, obtained or rendered,
as applicable.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any post-effective amendment thereto (except for
financial statements, supporting schedules and other financial data included
therein or omitted therefrom and for the Form T-1, as to which I make no
statement), at the time the Registration Statement or any post-effective
amendment thereto (including the filing of the Company's Annual Report on Form
10-K with the Commission) became effective [or at the date of any agreement of
the applicable Agent(s) to purchase Notes from the Company as principal],
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements, supporting schedules and other financial data
included therein or omitted therefrom, as to which I make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the date hereof, included or includes an untrue
statement of a material fact or omitted 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.
In rendering my opinion, I may rely (A) as to matters of fact (but not as
to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
Exhibit B, Page 4
35
EXHIBIT C
SUNDSTRAND CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
(Dated as of December , 1998)
Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes")
are to be offered on a continuous basis by Sundstrand Corporation, a Delaware
corporation (the "Company"), to or through ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, First Chicago Capital Markets, Inc. and
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC (each, an "Agent" and, collectively, the
"Agents") pursuant to a Distribution Agreement, dated December __, 1998 (the
"Distribution Agreement"), by and among the Company and the Agents. The
Distribution Agreement provides both for the sale of Notes by the Company to one
or more of the Agents as principal for resale to investors and other purchasers
and for the sale of Notes by the Company directly to investors (as may from time
to time be agreed to by the Company and the related Agent or Agents), in which
case each such Agent will act as an agent of the Company in soliciting purchases
of Notes.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an Indenture,
dated as of December 1, 1998, as amended, supplemented or modified from time to
time (the "Indenture"), between the Company and The First National Bank of
Chicago, as trustee (together with any successor in such capacity, the
"Trustee"). The Company has filed a Registration Statement with the Securities
and Exchange Commission (the "Commission") registering debt securities (which
includes the Notes) (the "Registration Statement," which term shall include any
additional registration statements filed in connection with the Notes). The
most recent base prospectus deemed part of the Registration Statement, as
supplemented with respect to the Notes, is herein referred to as "Prospectus."
The most recent supplement to the Prospectus setting forth the purchase price,
interest rate or formula, maturity date and other terms of the Notes (as
applicable) is herein referred to as the "Pricing Supplement."
Exhibit C, Page 1
36
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also bear
an original issue date (each, an "Original Issue Date").
The Original Issue Date shall remain the same for all
Notes subsequently issued upon transfer, exchange or
substitution of an original Note regardless of their
dates of authentication.
Maturities: Each Note will mature on a date nine months or more from
its original Issue Date (the "Stated Maturity Date")
selected by the investor or other purchaser and agreed to
by the Company.
Registration: Unless otherwise provided in the applicable Pricing
Supplement, Notes will be issued only in fully registered
form.
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Notes will be issued in denominations of
$1,000 and integral multiples thereof.
Exhibit C, Page 2
37
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable Pricing
Supplement, Floating Rate Notes will bear interest at a
rate or rates determined by reference to the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds Rate,
LIBOR, the Prime Rate, the Treasury Rate, or such other
interest rate basis or formula as may be set forth in
applicable Pricing Supplement, or by reference to two or
more such rates, as adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating Rate
Notes.
Redemption/Repayment: The Notes will be subject to redemption by the Company in
accordance with the terms of the Notes, which will be
fixed at the time of sale and set forth in the applicable
Pricing Supplement. If no Initial Redemption Date is
indicated with respect to a Note, such Note will not be
redeemable prior to its Stated Maturity Date.
The Notes will be subject to repayment at the option of
the Holders thereof in accordance with the terms of the
Notes, which will be fixed at the time of sale and set
forth in the applicable Pricing Supplement. If no
Optional Repayment Date is indicated with respect to a
Note, such Note will not be repayable at the option of
the Holder prior to its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest (including payments
for partial periods) will be calculated and paid on the
basis of a 360-day year of twelve 30-day months.
The interest rate on each Floating Rate Note will be
calculated by reference to the specified Interest Rate
Basis or Bases plus or minus the applicable Spread, if
any, and/or multiplied by the applicable Spread
Multiplier, if any.
Unless otherwise provided in the applicable Pricing
Supplement, interest on each Floating Rate Note will be
calculated by multiplying its principal amount by an
accrued interest factor. Such accrued interest factor is
computed by adding the interest factor calculated for
each day in the period for which accrued interest is
being calculated. Unless otherwise provided in the
applicable Pricing Supplement, the interest factor for
each such
Exhibit C, Page 3
38
day is computed by dividing the interest rate applicable
to such day by 360 if the CD Rate, Commercial Paper Rate,
Eleventh District Cost of Funds Rate, Federal Funds Rate,
LIBOR or Prime Rate is an applicable Interest Rate Basis,
or by the actual number of days in the year if the CMT
Rate or Treasury Rate is an applicable Interest Rate
Basis. As provided in the applicable Pricing Supplement,
the interest factor for Notes for which the interest rate
is calculated with reference to two or more Interest Rate
Bases will be calculated in each period in the same
manner as if only the lowest, highest or average of the
applicable Interest Rate Bases applied.
Interest: General. Each Note will bear interest in accordance with
its terms. Unless otherwise provided in the applicable
Pricing Supplement, interest on each Note will accrue
from and including the Original Issue Date of such Note
for the first interest period or from the most recent
Interest Payment Date (as defined below) to which
interest has been paid or duly provided for all
subsequent interest periods to but excluding applicable
Interest Payment Date or the Stated Maturity Date or date
of earlier redemption or repayment, as the case may be
(the Stated Maturity Date or date of earlier redemption
or repayment is referred to herein as the "Maturity Date"
with respect to the principal repayable on such date).
If an Interest Payment Date or the Maturity Date with
respect to any Fixed Rate Note falls on a day that is not
a Business Day (as defined below), the required payment
to be made on such day need not be made on such day, but
may be made on the next succeeding Business Day with the
same force and effect as if made on such day, and no
interest shall accrue on such payment for the period from
and after such day to the next succeeding Business Day.
If an Interest Payment Date other than the Maturity Date
with respect to any Floating Rate Note would otherwise
fall on a day that is not a Business Day, such Interest
Payment Date will be postponed to the next succeeding
Business Day, except that in the case of a Note for which
LIBOR is an applicable Interest Rate Basis, if such
Business Day falls in the next succeeding calendar month,
such Interest Payment Date will be the immediately
preceding Business Day. If the Maturity Date with
respect to any Floating Rate Note falls on a day that is
not a Business Day, the required payment to be made on
such day need not be made on such day, but may be made on
the next
Exhibit C, Page 4
39
succeeding Business Day with the same force and effect as
if made on such day, and no interest shall accrue on such
payment for the period from and after the Maturity Date
to the next succeeding Business Day. Unless otherwise
provided in the applicable Pricing Supplement, "Business
Day" means any day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banking
institutions are authorized or required by law,
regulation or executive order to close in The City of New
York; provided, however, that, with respect to Notes the
payment of which is to be made in a currency other than
U.S. dollars or composite currencies (such currency or
composite currency in which a Note is denominated is the
"Specified Currency"), such day is also not a day on
which banking institutions are authorized or required by
law, regulation or executive order to close in the
Principal Financial Center (as defined below) of the
country issuing such Specified Currency (or, in the case
of European Currency Units ("ECUs"), is not a day that
appears as an ECU non-settlement day on the display
designated as "ISDE" on the ▇▇▇▇▇▇ Monitor Money Rates
Service (or a day so designated by the ECU Banking
Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), is not a day on
which payments in ECU cannot be settled in the
international interbank market); provided, further, that,
with respect to Notes for which LIBOR is an applicable
Interest Rate Basis, such day is also a London Business
Day (as defined below).
"London Business Day" means (i) if the currency
(including composite currencies) specified in the
applicable Pricing Supplement as the currency (the "Index
Currency") for which LIBOR is calculated is other than
ECU, any day on which dealings in such Index Currency are
transacted in the London interbank market or (ii) if the
Index Currency is ECU, any day that does not appear as an
ECU non-settlement day on the display designated as
"ISDE" on the ▇▇▇▇▇▇ Monitor Money Rates Service (or a
day so designated by the ECU Banking Association) or, if
ECU non-settlement days do not appear on that page (and
are not so designated), is not a day on which payments in
ECU cannot be settled in the international interbank
market. It being understood that if no such currency or
composite currency is specified in the applicable Pricing
Supplement, the Index Currency shall be U.S. dollars.
"Principal Financial Center" means the capital city of
the country issuing the currency or composite currency in
which any payment in respect of the Notes is to be made
or, solely with respect to the calculation of LIBOR,
Exhibit C, Page 5
40
the Index Currency, except that with respect to U.S.
dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECUs, the
Principal Financial Center shall be The City of New York,
Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
Regular Record Dates. Unless otherwise provided in the
applicable Pricing Supplement, the "Regular Record Date"
for a Note shall be the date 15 calendar days (whether or
not a Business Day) preceding the applicable Interest
Payment Date.
Interest Payment Dates. Interest payments will be made
on each Interest Payment Date commencing with the first
Interest Payment Date following the Original Issue Date;
provided, however, the first payment of interest on any
Note originally issued between a Regular Record Date and
an Interest Payment Date will occur on the Interest
Payment Date following the next succeeding Regular Record
Date.
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes will
be made semiannually in arrears on June 1 and December 1
of each year and on the Maturity Date, while interest
payments on Floating Rate Notes will be made as
specified in the applicable Pricing Supplement.
Exhibit C, Page 6
41
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company, then such
Agent acting solely as agent for the Company and not as
principal will solicit purchases of the Notes. Each
Agent will communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes
solicited by such Agent on an agency basis, other than
those offers rejected by such Agent. Each Agent has the
right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part,
and any such rejection shall not be a breach of such
Agent's agreement contained in the Distribution
Agreement. The Company has the sole right to accept or
reject any proposed purchase of Notes, in whole or in
part, and any such rejection shall not a breach of the
Company's agreement contained in the Distribution
Agreement. Each Agent has agreed to make reasonable
efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will promptly prepare a Pricing
Supplement reflecting the terms of such Note. Information
to be included in the Pricing Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the date of the
Prospectus to which the Pricing Supplement relates;
4. the name of the Offering Agent (as defined below);
5. whether such Notes are being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as agent
for the Company;
6. with respect to Notes sold to the Offering Agent as
principal, whether such Notes will be resold by the
Offering Agent to investors and other purchasers at
(i) a fixed public offering price of a specified
percentage of
Exhibit C, Page 7
42
their principal amount or (ii) at varying prices
related to prevailing market prices at the time of
resale to be determined by the Offering Agent;
7. with respect to Notes sold to an investor or other
purchaser through the Offering Agent acting as agent
for the Company, whether such Notes will be sold at
(i) 100% of their principal amount or (ii) a
specified percentage of their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Company;
10. the Principal Amount, Specified Currency, Original
Issue Date, Stated Maturity Date, Interest Payment
Date(s), Authorized Denomination, Initial Redemption
Date, if any, Initial Redemption Percentage, if any,
Annual Redemption Percentage Reduction, if any,
Optional Repayment Date(s), if any, Exchange Rate
Agent, if any, Default Rate, if any, and, in the case
of Fixed Rate Notes, the Interest Rate, and whether
such Fixed Rate Note is an Original Issue Discount
Note (and, if so, the Issue Price), and, in the case
of Floating Rate Notes, the Interest Category, the
Interest Rate Basis or Bases, the Day Count
Convention, Index Maturity (if applicable), Initial
Interest Rate, if any, Maximum Interest Rate, if any,
Minimum Interest Rate, if any, Initial Interest Reset
Date, Interest Reset Dates, Spread and/or Spread
Multiplier, if any, and Calculation Agent; and
11. any other additional provisions of the Notes material
to investors or other purchasers of the Notes not
otherwise specified in the Prospectus.
The Company shall use its reasonable best efforts to send
such Pricing Supplement by telecopy or overnight express
(for delivery by the close of business on the applicable
trade date, but in no event later than 11:00 a.m. New
York City time, on the Business Day following the
applicable trade date) to the Agent which made or
presented the offer to purchase the applicable Note (in
such capacity, the "Offering Agent") and the Trustee at
the following applicable address: if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., to:
Exhibit C, Page 8
43
Tritech Services, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Prospectus Operations/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (732)
885-2774/5/6; if to First Chicago Capital Markets, Inc.,
Attention: ▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇]; NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (704)
386-6616, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; and if to the
Trustee, to: The First National Bank of Chicago,
Attention: ▇▇▇ ▇▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (312)
407-1708. For record keeping purposes, one copy of such
Pricing Supplement shall also be mailed or telecopied to
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, World Financial Center, North Tower,
10th Floor, New York, New York, 10281-1310, Attention:
MTN Product Management, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (212)
449-2234, with a copy to ▇▇▇▇▇, Brown & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. Best.
In each instance that a Pricing Supplement is prepared,
the Offering Agent will provide a copy of such Pricing
Supplement to each investor or purchaser of the relevant
Notes or its agent. Pursuant to Rule 434 ("Rule 434") of
the Securities Act of 1933, as amended, the Pricing
Supplement may be delivered separately from the
Prospectus. Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the Company
in payment for a Note and the authentication and delivery
of such Note shall, with respect to such Note, constitute
"settlement". Offers accepted by the Company will be
settled in three Business Days, or at such time as the
purchaser, the applicable Agent and the Company shall
agree, pursuant to the timetable for settlement set forth
in Parts II and III hereof under "Settlement Procedure
Timetable" with respect to Global Notes and Certificated
Notes, respectively (each such date fixed for settlement
is hereinafter referred to as a "Settlement Date"). If
procedures A and B of the applicable Settlement
Procedures with respect to a particular offer are not
completed on or before the time set forth under the
applicable "Settlement Procedures Timetable", such offer
shall not be settled until the Business Day following the
completion of settlement procedures A and B or such later
date as the purchaser and the Company shall agree.
Exhibit C, Page 9
44
The foregoing settlement procedures may be modified with
respect to any purchase of Notes by an Agent as principal
if so agreed by the Company and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the interest
rate or any other variable term on any Notes being sold
by the Company, the Company will promptly advise the
Agents and the Trustee by facsimile transmission and the
Agents will forthwith suspend solicitation of offers to
purchase such Notes. The Agents will telephone the
Company with recommendations as to the changed interest
rates or other variable terms. At such time as the
Company notifies the Agents and the Trustee of the new
interest rates or other variable terms, the Agents may
resume solicitation of offers to purchase such Notes.
Until such time, only "indications of interest" may be
recorded. Immediately after acceptance by the Company of
an offer to purchase Notes at a new interest rate or new
variable term, the Company, the Offering Agent and the
Trustee shall follow the procedures set forth under the
applicable "Settlement Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any time.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation of offers to purchase from
the Company until such time as the Company has advised
the Agents that solicitation of offers to purchase may be
resumed. If the Company decides to amend or supplement
the Registration Statement or the Prospectus (other than
to establish or change interest rates or formulas,
maturities, prices or other similar variable terms with
respect to the Notes), it will promptly advise the Agents
and will furnish the Agents and their counsel with copies
of the proposed amendment or supplement. Copies of such
amendment or supplement will be delivered or mailed to
the Agents, their counsel and the Trustee in quantities
which such parties may reasonably request at the
following respective addresses: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
World Financial Center, North Tower, 10th Floor, New
York, New York 10281-1310, Attention: MTN Product
Management, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
First Chicago Capital
Exhibit C, Page 10
45
Markets, Inc., Address, Attention: Corporate Securities
Structuring, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇; and if to the Trustee, to: The First
National Bank of Chicago, Attention: ▇▇▇ ▇▇▇▇▇▇, (312)
407-8857, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇. For record keeping
purposes, one copy of each such amendment or supplement
shall also be mailed or telecopied to ▇▇▇▇▇, Brown &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇.
In the event that at the time the solicitation of offers
to purchase from the Company is suspended (other than to
establish or change interest rates or formulas,
maturities, prices or other similar variable terms with
respect to the Notes) there shall be any offers to
purchase Notes that have been accepted by the Company
which have not been settled, the Company will promptly
advise the Offering Agent and the Trustee whether such
offers may be settled and whether copies of the
Prospectus as theretofore amended and/or supplemented as
in effect at the time of the suspension may be delivered
in connection with the settlement of such offers. The
Company will have the sole responsibility for such
decision and for any arrangements which may be made in
the event that the Company determines that such offers
may not be settled or that copies of such Prospectus may
not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the applicable
Pricing Supplement, which pursuant to Rule 434 may be
delivered separately from the Prospectus, must accompany
or precede the earlier of (a) the written confirmation of
a sale sent to an investor or other purchaser or its
agent and (b) the delivery of Notes to an investor or
other purchaser or its agent.
Exhibit C, Page 11
46
Authenticity of
Signatures: The Agents will have no obligation or liability to the
Company or the Trustee in respect of the authenticity of
the signature of any officer, employee or agent of the
Company or the Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an adequate
supply of all documents incorporated by reference in the
Registration Statement and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC, dated December 7, 1998, and a
Certificate Agreement, dated May 26, 1989, between the Trustee and DTC, as
amended (the "Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having the
same Original Issue Date, Specified Currency, Interest
Rate, Default Rate, Interest Payment Dates, redemption
and/or repayment terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will be
represented initially by a single Global Note; and all
Floating Rate Notes issued in book-entry form having the
same Original Issue Date, Specified Currency, Interest
Category, formula for the calculation of interest
(including the Interest Rate Basis or Bases, which may be
the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Eleventh District Cost of Funds Rate, the Federal Funds
Rate, LIBOR, the Prime Rate or the Treasury Rate or any
other interest rate basis or formula, and Spread and/or
Spread Multiplier, if any), Day Count Convention, Initial
Interest Rate, Default Rate, Index Maturity (if
applicable), Minimum Interest Rate, if any, Maximum
Interest Rate, if any, redemption and/or repayment terms,
if any, Interest Payment Dates, Initial Interest Reset
Date, Interest Reset Dates and Stated Maturity Date
(collectively, the "Floating Rate Terms") will be
represented initially by a single Global Note.
Exhibit C, Page 12
47
For other variable terms with respect to the Fixed Rate
Notes and Floating Rate Notes, see the Prospectus and the
applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will be
entitled to physical delivery of Certificated Notes equal
in principal amount to their respective beneficial
interests only upon certain limited circumstances
described in the Prospectus.
Identification: The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP
numbers, which series consists of approximately 900 CUSIP
numbers which have been reserved for and relating to
Global Notes and the Company has delivered to each of the
Trustee and DTC such list of such CUSIP numbers. The
Company will assign CUSIP numbers to Global Notes as
described below under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global Notes.
The Trustee will notify the Company at any time when
fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Notes, and, if it deems necessary,
the Company will reserve and obtain additional CUSIP
numbers for assignment to Global Notes. Upon obtaining
such additional CUSIP numbers, the Company will deliver a
list of such additional numbers to the Trustee and DTC.
Notes issued in book-entry form in excess of $200,000,000
(or the equivalent thereof in one or more foreign or
composite currencies) aggregate principal amount and
otherwise required to be represented by the same Global
Note will instead be represented by two or more Global
Notes which shall all be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note will
be registered in the name of Cede & Co., as nominee for
DTC, on the register maintained by the Trustee under the
Indenture. The beneficial owner of a Note issued in
book-entry form (i.e., an owner of a beneficial interest
in a Global Note) (or one or more indirect participants
in DTC designated by such owner) will designate one or
more participants in DTC (with respect to such Note
issued in book-entry form, the "Participants") to act as
agent for such beneficial 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 Note issued in
Exhibit C, Page 13
48
book-entry form in the account of such Participants. The
ownership interest of such beneficial owner in such Note
issued in book-entry form 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 beneficial ownership interests in a Global
Note will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases, one
or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Global
Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the
CUSIP numbers of two or more Global Notes outstanding on
such date that represent Global Notes having the same
Fixed Rate Terms or Floating Rate Terms, as the case may
be (other than Original Issue Dates), and for which
interest has been paid to the same date; (b) a date,
occurring at least 30 days after such written notice is
delivered and at least 30 days before the next Interest
Payment Date for the related Notes issued in book-entry
form, on which such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a new CUSIP
number, obtained from the Company, to be assigned to such
replacement Global Note. Upon receipt of such a notice,
DTC will send to its Participants (including the Trustee)
a written reorganization notice to the effect that such
exchange will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP
Service Bureau 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 Notes
to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange such
Global Notes for a single Global Note bearing the new
CUSIP number and the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to be
exchanged exceed $200,000,000 (or the equivalent thereof
in one or more foreign or composite currencies) in
aggregate principal amount, one replacement Note will be
authenticated and issued to represent each $200,000,000
(or the equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount of
the exchanged Global Notes and an additional Global Note
or Notes will be
Exhibit C, Page 14
49
authenticated and issued to represent any remaining
principal amount of such Global Notes (See
"Denominations" below).
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, Notes issued in book-entry form will be
issued in denominations of $1,000 and integral multiples
thereof. Global Notes will not be denominated in excess
of $200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) aggregate principal
amount. If one or more Notes are issued in book-entry
form in excess of $200,000,000 (or the equivalent thereof
in one or more foreign or composite currencies) aggregate
principal amount and would, but for the preceding
sentence, be represented by a single Global Note, then
one Global Note will be issued to represent each
$200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) in aggregate principal
amount of such Notes issued in book-entry form and an
additional Global Note or Notes will be issued to
represent any remaining aggregate principal amount of
such Note or Notes issued in book-entry form. In such a
case, each of the Global Notes representing Notes issued
in book-entry form shall be assigned the same CUSIP
number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each Regular
Record Date, the Trustee will deliver to the Company and
DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Note on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with the Maturity Date) and the
total of such amounts. DTC will confirm the amount
payable on each Global Note on such Interest Payment Date
by reference to the daily bond reports published by
Standard & Poor's Corporation. On such Interest Payment
Date, the Company will pay to the Trustee in immediately
available funds an amount sufficient to pay the interest
then due and owing on the Global Notes, and upon receipt
of such funds from the Company, the Trustee in turn will
pay to DTC such total amount of interest due on such
Global Notes (other than on the Maturity Date) which is
payable in U.S. dollars, at the times and in the manner
set forth below under "Manner of Payment". The Trustee
shall make payment of that amount of interest due and
owing on any Global Notes that Participants have elected
to receive in foreign or composite currencies directly to
such Participants.
Exhibit C, Page 15
50
Notice of Interest Rates. Promptly after each Interest
Determination Date or Calculation Date, as the case may
be, for Floating Rate Notes issued in book-entry form,
the Trustee will notify each of ▇▇▇▇▇'▇ Investors
Service, Inc. and Standard & Poor's Corporation of the
interest rates determined as of such Interest
Determination Date.
Payments at Maturity. On or about the first Business Day
of each month, the Trustee will deliver to the Company
and DTC a written list of principal, premium, if any, and
interest to be paid on each Global Note maturing or
otherwise becoming due in the following month. The
Trustee, the Company and DTC will confirm the amounts of
such principal, premium, if any, and interest payments
with respect to each such Global Note on or about the
fifth Business Day preceding the Maturity Date of such
Global Note. On the Maturity Date, the Company will pay
to the Trustee in immediately available funds an amount
sufficient to make the required payments, and upon
receipt of such funds the Trustee in turn will pay to DTC
the principal amount of Global Notes, together with
premium, if any, and interest due on the Maturity Date,
which are payable in U.S. dollars, at the times and in
the manner set forth below under "Manner of Payment".
The Trustee shall make payment of the principal, premium,
if any, and interest to be paid on the Maturity Date of
each Global Note that Participants have elected to
receive in foreign or composite currencies directly to
such Participants. Promptly after (i) payment to DTC of
the principal, premium, if any, and interest due on the
Maturity Date of such Global Note which are payable in
U.S. dollars and (ii) payment of the principal, premium,
if any, and interest due on the Maturity Date of such
Global Note to those Participants who have elected to
receive such payments in foreign or composite currencies,
the Trustee will cancel such Global Note and deliver it
to the Company with an appropriate debit advice. On the
first Business Day of each month, the Trustee will
deliver to the Company a written statement indicating the
total principal amount of outstanding Global Notes as of
the close of business on the immediately preceding
Business Day.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on any
Interest Payment Date or the Maturity Date, as the case
may be, which is payable in U.S. dollars shall be paid by
the Company to the
Exhibit C, Page 16
51
Trustee in funds available for use by the Trustee no
later than 10:00 a.m., New York City time, on such date.
The Company will make such payment on such Global Notes
to an account specified by the Trustee. Upon receipt of
such funds, the Trustee 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 in U.S. dollars of principal, premium, if any,
and interest due on Global Notes on such date.
Thereafter on 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 beneficial
interests in such Global Notes are recorded in the
book-entry system maintained by DTC. Neither the Company
nor the Trustee shall have any responsibility or
liability for the payment in U.S. dollars by DTC of the
principal of, or premium, if any, or interest on, the
Global Notes. The Trustee shall make all payments of
principal, premium, if any, and interest on each Global
Note that Participants have elected to receive in foreign
or composite currencies directly to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Global Note will be determined and withheld
by the Participant, indirect participant in DTC or other
Person responsible for forwarding payments and materials
directly to the beneficial owner of such Global Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Company, or purchased by an Agent, as principal, will be
as follows:
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile, of the following
settlement information:
1. Principal amount, Authorized Denomination, and
Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
Exhibit C, Page 17
52
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being issued with
Original Issue Discount and, if so, the
terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if any.
(v) Initial Interest Reset Date or Interest
Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest Rates, if
any.
(ix) Day Count Convention.
(x) Calculation Agent.
4. Price to public, if any, of such Note (or whether such
Note is being offered at varying prices relating to
prevailing market prices at time of resale as determined
by the Offering Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
Exhibit C, Page 18
53
8. Redemption provisions, if any.
9. Repayment provisions, if any.
10. Default Rate, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount or commission.
13. Whether such Note is being sold to the Offering Agent as
principal or to an investor or other purchaser through the
Offering Agent acting as agent for the Company.
14. Such other information specified with respect to such Note
(whether by Addendum or otherwise).
B. The Company will assign a CUSIP number to the Global Note
representing such Note and then advise the Trustee by facsimile
transmission or other electronic transmission of the above
settlement information received from the Offering Agent, such
CUSIP number and the name of the Offering Agent. The Company
will also advise the Offering Agent of the CUSIP number
assigned to the Global Note.
C. The Trustee will communicate to DTC and the Offering Agent
through DTC's Participant Terminal System a pending deposit
message specifying the following settlement information:
1. The information set forth in the Settlement Procedure A.
2. Identification numbers of the participant accounts
maintained by DTC on behalf of the Trustee and the
Offering Agent.
3. Identification of the Global Note as a Fixed Rate Global
Note or Floating Rate Global Note.
4. Initial Interest Payment Date for such Note, number of
days by which such date succeeds the
Exhibit C, Page 19
54
related record date for DTC purposes (or, in the case of
Floating Rate Notes which reset daily or weekly, the date
five calendar days preceding the Interest Payment Date)
and, if then calculable, the amount of interest payable on
such Interest Payment Date (which amount shall have been
confirmed by the Trustee).
5. CUSIP number of the Global Note representing such Note.
6. Whether such Global Note represents any other Notes issued
or to be issued in book-entry form.
DTC will arrange for each pending deposit message described
above to be transmitted to Standard & Poor's Corporation, which
will use the information in the message to include certain
terms of the related Global Note in the appropriate daily bond
report published by Standard & Poor's Corporation.
D. The Trustee will complete and authenticate the Global Note
representing such Note.
E. DTC will credit such Note to the participant account of the
Trustee maintained by DTC.
F. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Note to the Trustee's participant account and credit such Note
to the participant account of the Offering Agent maintained by
DTC and (ii) to debit the settlement account of the Offering
Agent and credit the settlement account of the Trustee
maintained by DTC, in an amount equal to the price of such Note
less such Offering Agent's discount or underwriting commission,
as applicable. Any entry of such a deliver order shall be
deemed to constitute a representation and warranty by the
Trustee to DTC that (i) the Global Note representing such Note
has been issued and authenticated and (ii) the Trustee is
holding such Global Note pursuant to the Certificate Agreement.
G. In the case of Notes in book-entry form sold through
Exhibit C, Page 20
55
the Offering Agent, as agent, the Offering Agent will
enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such
Note to the Offering Agent's participant account and
credit such Note to the participant account of the
Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of the Offering Agent
maintained by DTC in an amount equal to the initial
public offering 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. Upon receipt, the Trustee will pay the Company, by
wire transfer of immediately available funds to an
account specified by the Company to the Trustee from
time to time, the amount transferred to the Trustee
in accordance with Settlement Procedure F.
J. The Trustee will send a copy of the Global Note by
first class mail to the Company together with a
statement setting forth the principal amount of Notes
Outstanding as of the related Settlement Date after
giving effect to such transaction and all other
offers to purchase Notes of which the Company has
advised the Trustee but which have not yet been
settled.
K. If such Note was sold through the Offering Agent, as
agent, the Offering Agent will confirm the purchase
of such Note to the investor or other purchaser
either by transmitting to the Participant with
respect to such Note a confirmation order through
DTC's Participant Terminal System or by mailing a
written confirmation to such investor or other
purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures A through K set forth above shall
be completed as soon as possible following the trade but
not later than the respective times (New York City time)
set forth below:
Exhibit C, Page 21
56
SETTLEMENT
PROCEDURE TIME
---------- ----
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C No later than the close of business on the
trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on 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 Note issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
5:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, the Trustee 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 participant
account of the Trustee maintained at DTC. DTC will
process the withdrawal message, provided that such
participant account contains a principal amount of
the Global Note representing such Note that is at
least equal to the principal amount to be debited.
If withdrawal messages are processed with respect to
all the Notes represented by a Global Note, the
Trustee will mark such Global Note "canceled", make
appropriate entries in its records and send
certification of destruction of such canceled Global
Note to the Company. The CUSIP number assigned to
such Global Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. If withdrawal messages are
processed with respect to a portion of
Exhibit C, Page 22
57
the Notes represented by a Global Note, the Trustee
will exchange such Global Note for two Global Notes,
one of which shall represent the Global Notes for
which withdrawal messages are processed and shall be
canceled immediately after issuance and the other of
which shall represent the other Notes previously
represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
In the case of any Note in book-entry form sold
through the Offering Agent, as agent, if the purchase
price for any such Note is not timely paid to the
Participants with respect thereto by the beneficial
investor or other purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such investor or other purchaser), such
Participants and, in turn, the related Offering 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 Trustee will deliver
the withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason other than
default by the applicable Offering Agent to perform
its obligations hereunder or under the Distribution
Agreement, the Company will reimburse such Offering
Agent on an equitable basis for its reasonable loss
of the use of funds during the period when the funds
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form, 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 a Note that was
to have been represented by a Global Note also
representing other Notes, the Trustee will provide,
in accordance with Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will make
appropriate entries in its records.
Exhibit C, Page 23
58
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Certificated Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of immediately
available funds from the Company will pay the
principal of, premium, if any, and interest on, each
Certificated Note on the Maturity Date in immediately
available funds. All interest payments on a
Certificated Note, other than interest due on the
Maturity Date, will be made by check mailed to the
address of the person entitled thereto as such
address shall appear in the Security Register;
provided, however, that Holders of $10,000,000 or
more in aggregate principal amount of Certificated
Notes (whether having identical or different terms
and provisions) shall be entitled to receive such
interest payments by wire transfer of immediately
available funds if appropriate wire transfer
instructions have been received in writing by the
Trustee not less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company a
list of the principal, premium, if any, and interest
to be paid on Certificated Notes maturing in the next
succeeding month. The Trustee will be responsible
for withholding taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect to
such destruction.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall be as
follows:
A. The Offering Agent will advise the Company by
Exhibit C, Page 24
59
telephone of the following Settlement
information with regard to each Certificated
Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any, and
interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount, Authorized Denomination
and Specified Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date
and Interest Reset Dates.
(vi) Interest Payment Dates.
Exhibit C, Page 25
60
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing
market prices at time of resale as
determined by the Offering Agent).
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Net proceeds to the Company.
15. The Offering Agent's discount or
commission.
16. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
17. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. After receiving such settlement information from
the Offering Agent, the Company will advise the
Trustee of the above settlement information by
facsimile transmission confirmed by telephone.
The Company will cause the Trustee to issue,
authenticate and deliver the
Exhibit C, Page 26
61
Certificated Note.
C. The Trustee will complete the Certificated Note
in the form approved by the Company and the
Offering Agent, and will make three copies
thereof (herein called "Stub 1", "Stub 2" and
"Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering Agent's
customer confirmation, if traded on an
agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2 thereof
to the Offering Agent at the following
applicable address: ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money
Markets Clearance, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, N.S.C.C. Window, New York, New
York 10041, Attention: ▇▇ ▇▇▇▇▇▇▇▇, (212)
558-2405, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; First
Chicago Capital Markets Inc., Attention: ▇▇▇▇
▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (312)
732-3008 and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities
LLC, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇ and The Trustee will keep Stub
1. The Offering Agent will acknowledge receipt
of the Certificated Note through a broker's
receipt and will keep Stub 2. Delivery of the
Certificated Note will be made only against
such acknowledgment of receipt. Upon
determination that the Certificated Note has
been authorized, delivered and completed as
aforementioned, the Offering Agent will wire
the net proceeds of the Certificated Note after
deduction of its applicable commission to the
Company pursuant to standard wire instructions
given by the Company.
E. In the case of a Certificated Note sold through
the Offering Agent, as agent, the Offering Agent
will deliver
Exhibit C, Page 27
62
such Certificated Note (with the confirmation)
to the purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes accepted by
the Company, Settlement Procedures A through F set
forth above shall be completed as soon as possible
following the trade but not later than the respective
times (New York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or
within one hour following the trade
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: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company
shall either fail to accept delivery of or make
payment for such Certificated Note on the date fixed
for settlement, the Offering Agent will forthwith
notify the Trustee and the Company by telephone,
confirmed in writing, and return such Certificated
Note to the Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Company and the Company will promptly arrange to
credit the account of the Offering Agent in an amount
of immediately available funds equal to the amount
previously paid to the Company by such Offering Agent
in settlement for such Certificated Note. Such
credits will be made on the Settlement Date if
possible, and in any event not later than the
Business Day following the Settlement Date; provided
that the Company has received notice on the same day.
If such failure shall have occurred for any reason
other
Exhibit C, Page 28
63
than failure by such Offering Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such Offering
Agent on an equitable basis for its reasonable loss
of the use of funds during the period when the funds
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Trustee
will cancel and destroy such Certificated Note, make
appropriate entries in its records to reflect the
fact that such Certificated Note was never issued,
and accordingly notify in writing the Company.
Exhibit C, Page 29