Draft
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
Notes, Series J
Due More Than Nine Months From Date of Issue
Continuous Underwriting Agreement
December 5, 1997
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., a Delaware
corporation (the "Company"), proposes to sell from time to time
to the underwriters named in Schedule I hereto (the
"Underwriters") for whom you, (the "Representatives") are acting
as representative, certain of its Notes, Series J (the "Notes").
As of the date hereof, the Company has authorized the issuance of
up to $1,000,000,000 (or the equivalent thereof in one or more
foreign currencies, foreign currency units or composite
currencies) aggregate public offering price of the Notes. It is
understood that the Company may from time to time authorize the
issuance and sale of additional amounts of the Notes and that
such Notes may be purchased by you pursuant to the terms of this
Agreement, all as though the issuance and sale of such Notes were
authorized by the Company as of the date hereof. The Notes may be
denominated in U.S. dollars, foreign currencies or composite
currencies (the "Specified Currency") as may be specified in the
applicable Pricing Supplement (as defined herein) relating to any
particular issue of Notes.
The Notes will be issued, and the terms thereof
established, under and in accordance with an indenture dated as
of December 1, 1988, as amended from time to time between the
Company and Citibank, N.A., as trustee (the "Trustee") (such
indenture, as from time to time amended, the "Indenture"), and
the Note Administrative Procedures attached hereto as Exhibit A
(the "Procedures"). The Procedures may only be amended by written
agreement of the Company and the Underwriters after notice to,
and with the approval of, the Trustee. The Notes will be
initially issued only in book-entry form in the form of global
certificates registered in the name of the Depository Trust
Company, as Depositary, and will have minimum nominal
denominations of U.S. $1,000 (or the approximate equivalent
thereof in the Specified Currency) and in denominations exceeding
such amount by integral multiples of $1,000 (or the approximate
equivalent thereof in the Specified Currency). The
Notes will have the interest rates, maturities, redemption
provisions and other terms set forth in the applicable Pricing
Supplement (as defined herein).
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1.
(a) Registration Statements (File Nos. 333-01807 and
333-38931) in respect of $11,710,346,786 aggregate principal
amount of securities of the Company, including the Notes, have
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any
post-effective amendment thereto, each in the forms heretofore
delivered or to be delivered to each of you, excluding exhibits
to such registration statements but including all documents
incorporated by reference therein, have been declared effective
by the Commission in such forms; no other document with respect
to such registration statements (other than a document
incorporated by reference therein) has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of either registration statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission (any preliminary
prospectus included in the Second Registration Statement (as
defined herein) or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"); the various parts of each
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained
in such registration statement at the time such part of such
registration statement became effective but excluding the
Statements of Eligibility under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), pertaining to the
Indenture (the "Forms T-1"), each as amended at the time such
part became effective, being hereinafter collectively called (i)
in the case of Registration Statement No. 333-01807, the "First
Registration Statement" and (ii) in the case of Registration
Statement No. 333- 338931, the "Second Registration Statement;"
the First Registration Statement and the Second Registration
Statement being hereinafter called the "Registration Statements;"
the form of prospectus relating to the offering and sale of the
Notes included in the Second Registration Statement, in the form
in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this
Agreement being hereinafter from time to time called the
"Prospectus". Any reference herein to the Prospectus or a
Preliminary Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Prospectus
or Preliminary Prospectus, as the case may be; any reference to
any amendment or supplement to any Prospectus or Preliminary
Prospectus, including any supplement to the Prospectus that sets
forth only the terms of a particular issue of the Notes (a
"Pricing Supplement"), shall be deemed to refer to and include
any documents filed after the date of such Prospectus or
Preliminary Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Prospectus, as the case may be;
any reference to any amendment to either Registration Statement
shall be deemed to include any report of the Company filed
pursuant to the Exchange Act after the effective date of such
Registration Statement that is incorporated by reference in such
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include
the Prospectus as amended or supplemented in relation to the
Notes sold pursuant to this Agreement, in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act,
including any documents incorporated by reference therein as of
the date of such filing);
(b) 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 Exchange Act, as
applicable, and the rules and regulations of the
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Commission promulgated thereunder, and any further documents so
filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, 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;
(c) Each Registration Statement and the Prospectus,
and any amendment thereof or supplement thereto, and the
Indenture, conform or will conform in all material respects with
the applicable requirements of the Act and the Trust Indenture
Act, and the rules and regulations of the Commission thereunder;
(d) The First Registration Statement as of its
effective date did not, and the Second Registration Statement, as
amended as of any time, did not and will not, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and the Prospectus, as amended
and supplemented as of any such time, did not and will not
include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in
or omitted from the Second Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in
reliance upon, and in conformity with, information furnished in
writing to the Company by or on behalf of any Underwriter
specifically for use in the Second Registration Statement and the
Prospectus or any amendment thereof or supplement thereto;
(e) The Notes have been duly authorized and, when
executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, will
constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms and
entitled to the benefits of the Indenture (subject, as to
enforcement, to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity regardless
of whether such enforceability is considered in a proceeding in
equity or at law); the Indenture has been duly authorized by the
Company and qualified under the Trust Indenture Act; and the
Indenture conforms to the descriptions thereof in the Prospectus
as amended or supplemented to relate to such issuance of Notes.
(f) Since the date of the most recent financial
statements included in the Prospectus, as amended or
supplemented, there has not been any material adverse change in
the consolidated financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, which is not
disclosed in the Prospectus, as amended or supplemented.
2. Purchase, Sale and Resale of the Notes. (a) Subject
to the terms and conditions and in reliance upon the
representations and warranties herein set forth, from time to
time to the extent set forth in one or more supplemental
agreements that shall be substantially in the form of Exhibit B
hereto (each, a "Terms Agreement"), the Company agrees to sell to
each Underwriter, and each Underwriter agrees severally and not
jointly, to purchase from the Company, Notes in accordance with
the terms and conditions herein and in the applicable Terms
Agreement. Each Terms Agreement shall, among other things, (i)
describe the Notes to be purchased by the Underwriters pursuant
thereto and (ii) specifically state the principal amount of, the
price to be paid to the Company for, the rate at which interest
will be paid on, and the Settlement Date (as defined herein) of,
such Notes.
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(b) Each Underwriter hereby agrees that it will not
resell Notes purchased under Section 2(a) above except (i) to
persons who are not brokers or dealers (as such terms are defined
in Sections 3(a)(4) and (5) of the Exchange Act) or other
securities intermediaries or (ii) in accordance with the terms
and provisions of, and pursuant to, a Master Selected Dealers
Agreement (a "Dealers Agreement"), substantially in the form of
Exhibit C hereto, to dealers (the "Dealers") that have duly
executed and delivered such a Dealers Agreement to the
Underwriters. The Representatives will furnish to the Company a
true and complete copy of the Dealers Agreement executed by any
particular Dealer prior to any sale of Notes by any Underwriter
to such Dealer hereunder.
3. Delivery and Payment. Delivery of and payment for the
Notes shall be made in accordance with the Procedures. Each date
of delivery of and payment for Notes to be purchased by any
Underwriter or by any other purchaser is referred to herein as a
"Settlement Date."
4. Agreements. The Company agrees with each of the
Underwriters that:
(a) At any time from the date of this Agreement (the
"Commencement Date") and prior to the termination of the offering
of the Notes or during the time a prospectus relating to the
Notes is required to be delivered under the Act: (i) prior to
amending or supplementing either Registration Statement or the
Prospectus, the Company will furnish each Underwriter and such
Underwriter's counsel with a copy of each proposed amendment or
supplement (other than an amendment or supplement to be made
pursuant to incorporation by reference of a document filed under
the Exchange Act, or a Pricing Supplement or an amendment or
supplement relating solely to an offering of securities other
than the Notes); and (ii) prior to filing any documents under the
Exchange Act to be incorporated by reference into the Prospectus
(other than documents relating solely to an offering of debt
securities other than the Notes), the Company will notify each
Underwriter and such Underwriter's counsel orally of the general
subject matter of such filing and will furnish copies of such
filings to each such Underwriter and Underwriter's counsel
simultaneously with, or as promptly as practicable after, the
filing of such documents with the Commission. Subject to the
foregoing sentence, the Company will promptly cause the
Prospectus together with each amendment thereof or supplement
thereto to be mailed or otherwise transmitted to the Commission
for filing pursuant to Rule 424(b) by an appropriate method or
will promptly cause the Prospectus together with each amendment
thereof or supplement thereto to be filed with the Commission
pursuant to said Rule. If the Prospectus is amended or
supplemented (other than by a Pricing Supplement or an amendment
or supplement relating solely to an offering of securities other
than the Notes), each Underwriter shall be furnished with such
information relating to such filing as it may reasonably request,
and no Underwriter shall be obligated to solicit offers to
purchase Notes so long as it is not reasonably satisfied that
such amendment or supplement complies in all material respects
with the provisions of the Act and the Exchange Act. At any time
during an Offering Period or during the time a prospectus
relating to the Notes is required to be delivered under the Act,
the Company will promptly advise each Underwriter of (i) the
filing of any amendment or supplement to the Prospectus (other
than a Pricing Supplement or an amendment or supplement relating
solely to an offering of securities other than the Notes), (ii)
the filing or effectiveness of any amendment to either
Registration Statement, (iii) the receipt by the Company of
comments from the Commission relating to or requests by the
Commission for any amendment of either Registration Statement or
any amendment of or supplement to the Prospectus or for any
additional information, (iv) the issuance by the Commission of
any stop order suspending the effectiveness of either
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its reasonable best efforts to
4
prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. Upon any Underwriter's request,
the Company will within a reasonable time inform such Underwriter
of the aggregate principal amount of Notes registered under the
Registration Statements that remain unissued.
(b) Within the time during which a prospectus relating
to the Notes is required to be delivered under the Act, the
Company will comply with all requirements imposed upon it by the
Act, as now and hereafter amended, and by the rules and
regulations of the Commission thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of
or dealings in the Notes as contemplated by the provisions hereof
and the Prospectus. If during such period any event occurs as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading,
or if, in the opinion of the Company, during such period it is
necessary to amend or supplement the Second Registration
Statement or the Prospectus to comply with the Act, the Company
will promptly notify each Underwriter to suspend the solicitation
of offers to purchase the Notes in its capacity as Underwriter
and, to the extent required under the provision in the last
sentence of this subsection (b), the Company will promptly amend
or supplement such Registration Statement or the Prospectus (at
the expense of the Company) so as to correct such statement or
omission or effect such compliance. If such amendment or
supplement, and any documents, certificates, opinions and letters
furnished to each Underwriter pursuant to subsections (j), (k)
and (1) of this Section 4 in connection with the preparation and
filing of such amendment or supplement are reasonably
satisfactory in all respects to such Underwriter, upon the filing
of such amendment or supplement with the Commission or
effectiveness of an amendment to such Registration Statement,
such Underwriter will resume solicitation of offers to purchase
Notes hereunder. Notwithstanding the foregoing, the Company shall
not be required to comply with the provisions of subsection (b)
of this Section 4 during any period from the time any Underwriter
shall have been notified to suspend the solicitation of offers to
purchase the Notes in its capacity as Underwriter (whether under
this subparagraph (b) or otherwise under this Agreement) to the
time the Company shall determine that solicitation of offers to
purchase the Notes should be resumed.
(c) The Company will (i) comply, in a timely manner,
with all applicable requirements under the Exchange Act relating
to the filing with the Commission of the Company's reports
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
and, if then applicable, of the Company's proxy statements
pursuant to Section 14 of the Exchange Act.
(d) The Company will use its best efforts to qualify
the Notes for sale under the securities laws of such
jurisdictions as any Underwriter reasonably designates, to
maintain such qualifications in effect so long as required for
the distribution of the Notes and, if requested by such
Underwriter, to arrange for the determination of the legality of
the Notes for purchase by institutional investors, except that
the Company shall not be required in connection therewith to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction where it is
not now so subject.
(e) The Company will furnish to each Underwriter
copies of the Registration Statements and the Prospectus
(including all documents incorporated by reference therein), and
all amendments of and supplements to the Registration Statements
or the Prospectus which are filed with the Commission during the
period in which a prospectus relating to the Notes is required to
be delivered under the Act (including all documents filed by an
amendment or supplement with the Commission during such period
5
which are deemed to be incorporated by reference therein), in
each case in such quantities as such Underwriter may from time to
time reasonably request.
(f) So long as any of the Notes are outstanding, the
Company agrees to furnish to each Underwriter, upon its
reasonable request, as soon as available, all reports and
financial statements filed by or on behalf of the Company with
the Commission or any national securities exchange.
(g) The Company will make generally available to its
security holders and to each Underwriter as soon as practicable,
but in any event not later than 15 months after the end of the
Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12- month period beginning after
the date upon which any amendment of or supplement to the
Prospectus (other than a Pricing Supplement or an amendment or
supplement relating solely to an offering of debt securities
other than the Notes) is filed pursuant to Rule 424 under the
Act, which shall satisfy the provisions of Section 11(a) of the
Act.
(h) The Company shall, whether or not any sale of
Notes is consummated or this Agreement is terminated, pay all
expenses incident to the performance of its obligations under
this Agreement and under any Terms Agreement, including, without
limitation, the fees and disbursements of its accountants and
counsel, the cost of printing (or other production) and delivery
of the Registration Statements and the Prospectus, all amendments
thereof and supplements thereto, the Indentures, and all other
documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements (including reasonable fees of counsel) incurred in
connection with the qualification of the Notes for sale and
determination of eligibility for investment of the Notes under
the securities or Blue Sky laws of such jurisdictions as the
Underwriter may designate, the fees and disbursements of the
Trustees, the fees of any agency that rates the Notes, the fees
and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc. and the
reasonable fees and disbursements of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ or Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as counsel
for the Underwriters, or other counsel reasonably satisfactory to
each of the Underwriters and the Company, and such other
expenses, including, without limitation, advertising expenses as
may be agreed upon by the Underwriters and the Company.
(i) During the term of this Agreement, the Company
shall furnish to each Underwriter such relevant documents and
certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration
Statements, the Prospectus, any amendments thereof or supplements
thereto, the Indenture, the Notes, this Agreement, the
Procedures, any Terms Agreement and the performance by the
Company of its obligations hereunder or thereunder as any
Underwriter may from time to time reasonably request and shall
promptly notify each Underwriter orally, followed by written
notice of any downgrading, or of its receipt of any notice of any
intended downgrading, in the rating accorded any of the Company's
securities by ▇▇▇▇▇'▇ Investor Service or Standard & Poor's
Corporation or, if one of them no longer rates the securities of
the Company, another "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g) (2) under the Act.
(j) Each time either Registration Statement or the
Prospectus is amended or supplemented (other than by a Pricing
Supplement or an amendment or supplement relating solely to an
offering of securities other than the Notes), the Company will
deliver or cause to be delivered forthwith to such Underwriter a
certificate of the Company signed by either Co-Chairman of the
Board, any Vice Chairman, the Treasurer or any Vice President and
by the principal financial or accounting officer of the Company
(or another officer or officers acceptable to such Underwriter),
dated the date of the
6
effectiveness of such amendment or the date of filing with the
Commission of such supplement or document, as the case may be, in
form reasonably satisfactory to such Underwriter, to the effect
that the statements contained in the certificate referred to in
Section 5(b) (iii) that was last furnished to such Underwriter
(either pursuant to Section 5(b) (iii) or pursuant to this
Section 4(j)) are true and correct at the time of the
effectiveness of such amendment or the time of filing of such
supplement or document, 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 Statements, as amended at the time of
effectiveness of such amendment, and to the Prospectus, as
amended and supplemented at the date of such certificate) or, in
lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b) (iii) but modified, if
necessary, to relate to the Registration Statements, as amended
at the time of the effectiveness of such amendment, and to the
Prospectus, as amended and supplemented at the date of such
certificate.
(k) Each time either Registration Statement or the
Prospectus is amended or supplemented (other than by a Pricing
Supplement or an amendment or supplement relating solely to an
offering of securities other than the Notes), the Company shall
furnish to or cause to be furnished forthwith to such Underwriter
the written opinion of the General Counsel of the Company or
other counsel reasonably satisfactory to such Underwriter dated
the date of the effectiveness of such amendment or the date of
filing with the Commission of such supplement or document, as the
case may be, in form reasonably satisfactory to such Underwriter,
to the effect set forth in Exhibit D hereto. In lieu of such
opinion, counsel last furnishing such an opinion to such
Underwriter may furnish to such Underwriter a letter to the
effect that such Underwriter may rely on such last opinion to the
same extent as though it were dated the date of such letter and
authorizing reliance on such last opinion (except that statements
in such last opinion will be deemed to relate to the Registration
Statements, as amended at the time of the effectiveness of such
amendment, and to the Prospectus, as amended and supplemented at
the date of such letter).
(l) Each time that either Registration Statement or
the Prospectus is amended or supplemented to set forth amended or
supplemental financial information (other than by a Pricing
Supplement or any amendment or supplement relating solely to an
offering of securities other than the Notes), the Company shall
cause Coopers & ▇▇▇▇▇▇▇ L.L.P., its independent certified public
accountants, (and to the extent necessary, as determined by the
Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP) forthwith to furnish such
Underwriter a letter, dated the date of the effectiveness of such
amendment or the date of filing of such supplement or document,
as the case may be, in form satisfactory to such Underwriter, of
the same tenor as the letter of such independent public
accountants referred to in Section 5(b)(iv) hereof but modified
to relate to the Registration Statements and Prospectus, as
amended and supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting
records of the Company; provided, however, that if either
Registration Statement or the Prospectus is amended or
supplemented solely to include or incorporate by reference
financial information with respect to a fiscal quarter, Coopers &
▇▇▇▇▇▇▇ L.L.P. (and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, if such firm is
providing such a letter) may each limit the scope of such letter
to the unaudited financial statements included in such amendment
or supplement.
(m) Each acceptance by the Company of an offer for the
purchase of Notes shall be deemed to be an affirmation that the
representations and warranties of the Company contained in or
made pursuant to this Agreement are true and correct in all
material respects at the time of such acceptance or sale, as the
case may be, as though made at and as of such time, and an
undertaking that such representations and warranties will be true
and correct in all material respects at the time of delivery to
the purchaser or his agent, or an Underwriter, of the Notes
relating to such acceptance, as the case may
7
be, as though made at and as of such time (and it is understood
that such representations and warranties shall relate to the
Registration Statements and the Prospectus as amended and
supplemented to each such time).
(n) Anything to the contrary in this Section 4
notwithstanding, if, at the time of any required notice,
amendment or supplement to the Registration Statement or the
Prospectus, the Company shall have instructed the Underwriters to
suspend solicitation of offers to purchase the Notes in each
Underwriter's capacity as Underwriter of the Company, the Company
shall not be obligated to furnish or cause to be furnished any
notice, certificate, opinion or letter otherwise required until
such time as it shall determine that solicitation of offers to
purchase the Notes should be resumed; and provided, further that,
prior to resuming such solicitation the Underwriters shall be
entitled to receive any such notices, certificates, opinions or
letters not previously furnished, accurate as of the date of such
notice, certificate, opinion or letter.
5. Conditions to the Obligations of the Underwriters.
Each Underwriter's obligations to solicit offers to purchase
Notes will be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to
the provisions hereof and to the performance and observance by
the Company of all covenants and agreements herein contained on
its part to be performed and observed at the time the Company
accepts the offer to purchase such Notes and at the time of
purchase and to the following additional conditions precedent
when and as specified:
(a) On the corresponding Settlement Date:
(i) There shall not have occurred any change in
or affecting particularly the business or properties of the
Company and its subsidiaries from that set forth in the
Second Registration Statement, as amended or supplemented,
that, in the Underwriter's judgment, makes it impracticable
to market the Notes on the terms and in the manner
contemplated in the Prospectus.
(ii) There shall not have occurred any (x)
suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on
any exchange (whether U.S. or foreign) or in the
over-the-counter market, (y) declaration of a general
moratorium on commercial banking activities in New York by
either federal or New York state authorities or exchange
controls shall have been imposed by the United States or by
any country the currency of which will be used to make any
payment in respect of the Notes or (z) any outbreak or
escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any
other substantial national or international calamity or
emergency that, in the Underwriter's judgment, is material
and adverse and, in the case of any of the events described
in clauses (ii) (A) (x) through (z), such event makes it,
in the Underwriter's judgment, impracticable to market the
Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented.
(iii) There shall not have been any downgrading,
nor any notice given of any intended downgrading, in the
rating accorded any of the Company's securities by ▇▇▇▇▇'▇
Investor Service or Standard & Poor's Corporation or, if
one of them no longer rates the
8
securities of the Company, another "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g) (2) under the Act.
(b) On the Commencement Date:
(i) The Company shall have furnished to each
Underwriter the opinion of the General Counsel of the
Company (or other counsel for the Company reasonably
acceptable to the Underwriter) on the Commencement Date,
and, on the Settlement Date will furnish the opinion of the
General Counsel of the Company (or other counsel for the
Company reasonably acceptable to such Underwriter) and, if
called for by a Terms Agreement, the opinion of other
counsel, dated the Commencement Date, to the effect set
forth in Exhibit D hereto.
(ii) Each Underwriter shall have received from
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters (or other
counsel reasonably acceptable to such Underwriter and the
Company), an opinion dated the Commencement Date, to the
effect set forth in Exhibit E hereto.
(iii) The Company shall have furnished to the
Underwriter a certificate of the Company, signed by either
Co-Chairman of the Board, any Vice Chairman, the Treasurer
or any Vice President and by the principal financial or
accounting officer of the Company (or another officer or
officers acceptable to such Underwriter), dated the
Commencement Date, as the case may be, to the effect that
each signatory of such certificate has carefully examined
the Registration Statement, as amended as of the date of
such certificate, the Prospectus, as amended and
supplemented as of the date of such certificate, and this
Agreement and that:
(A) the representations and warranties of
the Company in this Agreement are true and correct in
all material respects on and as of the date of such
certificate with the same effect as if made on the
date of such certificate and the Company has complied
in all material respects with all the agreements and
satisfied in all material respects all the conditions
on its part to be performed or satisfied as a
condition to the obligations of such Underwriter under
this Agreement;
(B) no stop order suspending the
effectiveness of either Registration Statement has
been issued and no proceedings for that purpose have
been instituted or, to their knowledge, have been
threatened; and
(C) since the date of the most recent
financial statements included in the Prospectus, as
amended and supplemented, there has been no material
adverse change in the consolidated financial condition
or results of operations of the Company and its
subsidiaries, taken as a whole, which is not disclosed
in the Prospectus, as amended or supplemented.
(iv) Each of Coopers & ▇▇▇▇▇▇▇ L.L.P. (and to the
extent necessary, as determined by the Company, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP) or another nationally recognized independent
accounting firm, shall have furnished to each Underwriter a
letter or letters, dated the Commencement Date in form and
substance reasonably satisfactory to such Underwriter, to
the effect set forth in Exhibit F and Exhibit G hereto.
9
(v) The Company shall have furnished to each
Underwriter such appropriate further information, certificates
and documents as such Underwriter may reasonably request.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each of you against any losses,
claims, damages or liabilities, joint or several, to which each
of you may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in either Registration Statement when it became
effective, the Second Registration Statement, when the
Prospectus, or any amendment or supplement thereto, or any
related preliminary Prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each of you for any
legal or other expenses reasonably incurred by you in connection
with investigating or defending against such loss, claim damage,
liability or action; provided, however, that (i) the Company
shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf
of any of you specifically for use in the preparation thereof,
and (ii) such indemnity with respect to any preliminary
Prospectus, the Prospectus or any preliminary supplemental
prospectus, shall not inure to the benefit of any of you (or any
person controlling you) if the Company shall have delivered
sufficient quantities of the Prospectus, as amended and
supplemented, to you within a reasonable time prior to the
earlier of the delivery of the written confirmation of the sale
of such Notes or the delivery of such Notes to the person
asserting such loss, claim, damage, liability or action for which
indemnification is sought, and the Prospectus as so amended and
supplemented (excluding documents incorporated by reference) was
not sent or given to such person by you at or prior to the
earlier of the delivery of the written confirmation of the sale
of such Notes or the delivery of such Notes to such person in any
case where such sending or giving of a prospectus is required by
the Act, and the untrue statement or omission of a material fact
contained in such preliminary prospectus, such Prospectus or such
preliminary supplemental prospectus, was corrected in the
Prospectus, as so amended and supplemented, provided to you.
(b) Each Underwriter will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained any part of either Registration Statement when it
became effective, or the Second Registration Statement or the
Prospectus or any amendment or supplement thereto, or any related
Preliminary Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
specifically for use in the preparation thereof, and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from
any liability which the indemnifying party may have to any
10
indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party,
and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate
in and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnified party), and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such subsection for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this
Section 6 is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by
each of you on the other from the offering of the Notes from
which such losses, claims, damages or liabilities arose, or (ii)
if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand
and by each of you on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the by each of you on the other shall be deemed
to be in the same proportion as the total net proceeds from the
offering of the Notes from which such losses, claims, damages or
liabilities arose (before deducting expenses) received by the
Company bear to the total commissions received by each of you in
connection with such offering. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of you and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this subsection
(d) were to be determined by pro rata allocation (even if you
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any action or claim (which shall be limited as provided in
subsection (c) above if the indemnifying party has assumed the
defense of any such action in accordance with the provisions
thereof) which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), none of
you shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes sold by the
Company from which such losses, claims, damages or liabilities
arose pursuant to offers solicited by you were offered to the
public exceeds the amount of any damages which you have otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute
shall be several in proportion to their respective underwriting
obligations and not joint. Promptly after receipt by an
indemnified party under this subsection (d) of the notice of the
commencement of any action against such party in respect of which
a claim for contribution may be made against an
11
indemnifying party under this subsection (d), such indemnified
party shall notify the indemnifying party in writing of the
commencement thereof if the notice specified in subsection (c)
above has not been given with respect to such action; but the
omission so to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party
otherwise than under this subsection (d).
(e) The obligations of the Company under this Section 6
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any of you
within the meaning of the Act or the Exchange Act; and the
obligations of each of you under this Section 6 shall be in
addition to any liability which you may otherwise have and shall
extend, upon the same terms and conditions, to each director of
the Company (including any person who, with his or her consent,
is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act or the
Exchange Act.
7. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 7. This
Agreement may be terminated by either the Company as to any
Underwriter or by any Underwriter insofar as this Agreement
relates to such Underwriter giving written notice of such
termination to such Underwriter or the Company, as the case may
be. If this Agreement is terminated, neither party shall have any
liability to the other party hereto, except as provided in
Sections 4(g), 4(h), 6, 8 and 11, and except that, if at the time
of termination an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the
Underwriter or its agent of the Note or Notes relating thereto
has not occurred, the Company's representations and warranties
stated in Section 2 and its obligations under the Procedures, and
in Sections 2(c), 4(a), 4(b), 4(c), 4(e), 4(i), 4(j), 4(k), 4(1),
4(m), and 5 shall also remain in full force and effect and not be
terminated until the delivery of such Notes.
8. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of any of
you set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by
or on behalf of you or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof,
and will survive delivery of and payment for the Notes for a
period extending to the earlier of (i) three years from the
corresponding Settlement Date for such Notes or (ii) the
expiration of any applicable statute of limitations governing
such solicitation or purchase of Notes.
9. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and
confirmed to such Underwriter, at the address specified on the
first page of this agreement; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
10. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 6 hereof. Nothing
expressed or implied in this Agreement or any Terms 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 and officers and directors
referred to in Section 6 and their heirs and legal
representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. This Agreement and any
Terms Agreement and all conditions and provisions hereof and
12
thereof except to the extent provided for in Section 5 hereof are
intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling
persons and 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. This Agreement and
the rights and obligations of any of you hereunder may not be
assigned without the prior written consent of the Company.
11. Waivers, Etc. Neither any failure nor delay on the
part of any party to exercise any right, remedy, power or
privilege under this Agreement (singly and collectively referred
to as a "Right") shall operate as a waiver of such Right, nor
shall any single or partial exercise of any Right preclude any
other or further exercise of any Right, nor shall any waiver of
any Right with respect to any occurrence be construed as a waiver
of any Right with respect to any other occurrence.
12. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
13
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the
Company and the Underwriters.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
By: ______________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date hereof.
SALOMON BROTHERS INC
By: _______________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: _______________________
Name:
Title:
14
EXHIBIT A
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
Note Administrative Procedures
$1,000,000,000
The Notes, Series J (the "Notes") of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Holdings Inc. (the "Company") are being offered on a
continuous basis. The Notes are being sold to Salomon Brothers
Inc and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Underwriters") pursuant to a
Continuous Underwriting Agreement between the Company and the
Underwriters dated as of the date hereof (the "Underwriting
Agreement") and one or more terms agreements substantially in the
form attached to the Underwriting Agreement as Exhibit B (each, a
"Terms Agreement"). The Notes are being resold by the
Underwriters to (i) customers of the Underwriters or (ii)
selected broker-dealers for distribution to their customers
pursuant to Master Selected Dealers Agreements (each, a "Dealers
Agreement") substantially in the form attached to the
Underwriting Agreement as Exhibit C. The Notes have been
registered with the Securities and Exchange Commission (the
"Commission") and will be issued under an indenture dated as of
December 1, 1988, as amended from time to time between the
Company and Citibank, N.A., as trustee (the "Trustee") (such
indenture, as amended from time to time, the "Indenture"). Terms
used herein but not defined shall have the meanings assigned to
them in the Indenture, unless otherwise required by the context.
The Notes will constitute part of the senior debt of the Company
and will rank equally with all other unsecured and unsubordinated
debt of the Company.
The Notes will be issued only in fully registered form
without coupons, and each tranche of the Notes (a "Tranche") will
have the annual interest rate, maturity and other terms set forth
in a Pricing Supplement (as defined in the Underwriting
Agreement). Each Tranche will be represented by (i) one or more
global certificates (each, a "Global Certificate") without
coupons registered in the name of the nominee of the depositary,
The Depository Trust Company, or any successor depositary
selected by the Company ("DTC", which term, as used herein,
includes any successor depositary selected by the Company), each
Global Certificate representing up to $200,000,000 principal
amount of all such Notes that have the same interest rate and
Stated Maturity or (ii) one or more certificates ("Individual
Certificates") registered in the name of, and delivered to, the
Holder thereof or a Person designated by such Holder. Each Global
Certificate representing all or part of a Tranche will be
delivered to the Trustee, as custodian for DTC, and each of the
Notes in such Tranche (a "Book-Entry Note") will be recorded in
the book-entry system maintained by DTC. An owner of a Book-Entry
Note will not be entitled to receive a certificate representing
such Note except in the circumstances described in the Prospectus
(as defined in the Underwriting Agreement).
Administrative procedures to be followed in connection
with, and certain specific terms of, the offering of Notes for
sale by the Underwriters and the sale as a result thereof by the
Company are stated below. Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part I
hereof, and notes represented by Individual Certificates
("Certificated Notes") will be issued in accordance with the
administrative procedures set forth in Part II hereof. The
Company will advise the Underwriters and the Trustee in writing
of those persons handling administrative
A-1
responsibilities with whom the Underwriters and the Trustee are
to communicate regarding orders to purchase Notes and the details
of their delivery. To the extent the procedures set forth below
conflict with the provisions of the Notes, the Indenture or the
Underwriting Agreement, the relevant provisions of the Notes, the
Indenture and the Underwriting Agreement shall control.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Procedure for The Company and the Underwriters will
Rate Setting discuss from time to time the aggregate
and Posting: principal amount and maturities of, and the
interest rates to be borne by, each Tranche
of Book-Entry Notes that may be purchased by
the Underwriters.
If the Company decides to set aggregate
principal amounts and maturities of, and
rates to be borne by, any Tranche to be
purchased by the Underwriters (the setting
of such amounts, maturities and rates by the
Company to be referred to herein as a
"Posting"), or if the Company decides to
change amounts, maturities or rates
previously posted, the Company will promptly
advise the Underwriters of the amounts,
maturities and rates to be posted.
Offering of Notes: In the event that there is a Posting, the
Underwriters will communicate the
aggregate principal amount and
maturities of, and the interest rates to be
borne by, each Tranche that is the subject
of the Posting to each of the broker-dealers
(the "Dealers") that has entered into a
Dealers Agreement with the Underwriters and,
pursuant to such Dealers Agreement, will
solicit offers to purchase the Notes in the
Tranche from the Dealers.
Purchase of The Underwriters will, no later
Notes by than 10 A.M. (New York City time) on
the Underwriters: the third day subsequent to the day
on which such Posting occurs, or if
such third day is not a day on which
commercial banks in New York City are not
required or authorized to be closed (such a
day, a "Business Day"), on the next
succeeding Business Day, or on such later
Business Day and time as shall be mutually
agreed upon by the Company and the
Underwriters (any such day, a "Trade Date"),
(i) complete, execute and deliver to the
Company a Terms Agreement that sets forth,
among other things, the amount of each
Tranche that the Underwriters is offering to
purchase or (ii) inform the Company that none
of the Notes of a particular Tranche will be
purchased by the Underwriters. Immediately
upon receipt of a completed and executed
Terms Agreement from the Underwriters, the
Company will (i) execute and deliver such
Terms
A-2
Agreement to the Underwriters or (ii) inform
the Underwriters that its offer to purchase
the Notes of a particular Tranche has been
rejected.
Preparation of If any offer by the Underwriters to purchase
Pricing Notes is accepted by or on behalf of the
Supplement: Company, the Company, with the approval of the
Underwriters, will prepare a Pricing
Supplement reflecting the terms of each
Tranche and will arrange to have ten copies
thereof filed with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Securities Act of 1933,
as amended (the "Act"), and will supply one
copy of such Pricing Supplement to the
Underwriters and to the Trustee. The
Underwriters will deliver, or will cause to
be delivered, copies of the applicable
Pricing Supplement to (i) each of the Dealers
that purchased such Notes pursuant to a
Dealers Agreement in sufficient amounts so
that a copy of the applicable Pricing
Supplement can be delivered to each such
Dealer and each purchaser of Notes from such
Dealer and (ii) each purchaser of Notes from
the Underwriters (other than such Dealers).
In each instance that a Pricing Supplement
is prepared, the Underwriters will affix, or
will cause to be affixed, copies of the
Pricing Supplement to the Basic Prospectus
prior to its distribution to purchasers of
the Notes from the Underwriters (other than
Dealers that are purchasers of Notes from
the Underwriters with a view to their
distribution pursuant to a Dealers
Agreement) and will be responsible for
determining that such Dealers have
sufficient copies of the most current
version of the Pricing Supplements and the
related Basic Prospectus to deliver copies
of such Pricing Supplement attached to the
Basic Prospectus to every purchaser of the
Notes, as appropriate. The Underwriters and
the Dealers will destroy any Pricing
Supplements, and any Basic Prospectuses to
which they are attached (other than those
retained for files), that remain in their
possession after Pricing Supplements have
been delivered to the purchasers of Notes.
Delivery of A copy of the Basic Prospectus and a
Prospectus: Pricing Supplement relating to a Book-Entry
Note must accompany or precede any written
offer of such Note, confirmation of the
purchase of such Note and payment for such
Note by its purchaser (other than the
Underwriters or a Dealer). The Underwriters
and the Dealers will deliver a Basic
Prospectus and Pricing Supplement as herein
described with respect to each Book-Entry
Note sold by any of them, along with a
confirmation of sale, to each purchaser on
the day immediately following the Trade Date.
The Trustee will make such delivery if such
Note is sold directly by the Company to a
purchaser (other than the Underwriters).
A-3
Issuance: On the Settlement Date (as defined in the
Underwriting Agreement) for each Tranche sold
pursuant to the Underwriting Agreement, the
Company will cause the Trustee to issue one
or more Global Certificates. Each Global
Certificate will be dated and issued as of
the date of its authentication by the
Trustee.
Registration: Each Global Certificate will be registered in
the name of CEDE & CO., as nominee for DTC,
on the Security Register. The beneficial
owner of a Book-Entry Note (or an indirect
participant in DTC designated by such owner)
will designate a participant in DTC (with
respect to such Note, the "Participant") 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 the Participant, a
credit balance indicating that the
Participant is the record holder of the Note.
The ownership interest of the beneficial
owner in such Note will be recorded through
the records of the Participant or through the
separate records of the Participant and an
indirect participant in DTC.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 (or the equivalent thereof
in one or more foreign or composite
currencies) or any amount in excess thereof
that is an integral multiple of $1,000 (or
the equivalent thereof in one or more foreign
or composite currencies). Global Certificates
will be denominated in principal amounts not
in excess of $200,000,000. If a Tranche
having an aggregate principal amount in
excess of $200,000,000 would, but for the
preceding sentence, be represented by a
single Global Certificate, then one Global
Certificate will be authenticated and issued
to represent each $200,000,000 principal
amount of such Tranche and an additional
Global Certificate will be authenticated and
issued to represent any remaining principal
amount of such Tranche.
Settlement: The receipt by the Company of immediately
available funds in payment for a Tranche and
the authentication and issuance of the Global
Certificate(s) representing such Tranche
shall constitute "Settlement" with respect to
the Notes constituting such Tranche. The
Settlement Date with respect to any purchase
of Book-Entry Notes from the Company by the
Underwriters will be a date on or before the
third Business Day next succeeding the Trade
Date, unless otherwise agreed by the
Underwriters and the Company and specified in
the applicable Terms Agreement.
Settlement The following Settlement Procedures will
Procedures: be performed by the Company, the Trustee,
the Underwriters and each of the Dealers with
regard to each Tranche of Book-Entry Notes
issued by the Company on a Trade Date:
A-4
A. The Underwriters will advise the Company in
writing of the following settlement information:
1. Principal or face amount.
2. Stated maturity.
3. In the case of a Fixed Rate Book-Entry
Note, the interest rate and reset,
redemption, repayment and extension
provisions (if any) or, in the case of a
Floating Rate Book-Entry Note, the Base
Rate, Initial Interest Rate (if known at
such time) Interest Reset Period, Interest
Reset Dates, Index Maturity, Spread and/or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any) and reset, redemption,
repayment and extension provisions (if
any).
4. Monthly, quarterly, semi-annual or annual
interest payments.
5. Settlement date.
6. Underwriters' price.
7. Dealers' selling concession.
8. Specified Currency, Denominated currency,
Indexed Currency, Base Exchange Rate, and
the Determination Date, if applicable.
9. Whether the Notes will have a Survivor's
Option.
10. Whether such Book-Entry Note is an OID Note
and, if so, the total amount of OID, the yield
to maturity and the initial accrual period
OID.
11. Any other terms necessary to describe the
relevant Tranche.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time
on the same date) or electronic transmission
(i) of the information set forth in
Settlement Procedure "A" above and (ii) that
the Notes are Book-Entry Notes. Each such
communication by the Company shall constitute
a representation and warranty by the Company
to the Trustee for such Note and the
Underwriters that (i) such Note is then, and
at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by
the Company and (ii) such Note, and the
Global Certificate representing such Note,
will conform with the terms of the Indenture
for such Note.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, the Underwriters,
Interactive Data Corporation and Standard &
Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
A-5
3. Initial Interest Payment Date for such
Tranche of Notes, number of days by
which such date succeeds the
related Regular Record Date and amount
of interest payable on such Interest
Payment Date.
4. The Interest Payment Period.
5. The participant account numbers maintained
by DTC on behalf of the Trustee and the
Underwriters.
6. CUSIP number of the Global Certificate(s)
representing such Tranche of Notes.
7. Whether such Global Certificate(s) will
represent any other Tranche of
Book-Entry Notes (to the extent known at
such time).
D. To the extent the Company has not already
done so, the Company will deliver to the
Trustee for such Notes a Global Certificate
in a form that has been approved by the
Company, the Underwriters and the Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global
Security representing such Tranche.
F. DTC will credit such Tranche to the Trustee's
participant account at DTC.
G. The Trustee will enter a Same-Day Funds
Settlement System ("SDFS") deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Tranche to
the Trustee's participant account and credit
the Notes belonging to such Tranche to the
Underwriters' participant account and (ii)
debit the Underwriters' settlement account
and credit the Trustee's settlement account
for an amount equal to the aggregate
principal amount of such Notes, less the
underwriting discount. The entry of such a
deliver order shall constitute a
representation and warranty by the Trustee to
DTC that (i) the Global Certificate(s)
representing such Book-Entry Notes has or
have been issued and authenticated and (ii)
the Trustee is holding such Global
Certificate(s) pursuant to the Medium-Term
Notes Certificate Agreement dated October 31,
1988 between the Trustee and DTC.
H. The Underwriters will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit Notes
received from the Trustee pursuant to
settlement procedure "G" above to the
Underwriters' participant account and to
credit such Notes to the participant accounts
of Participants that (A) will hold such Notes
as Dealers that purchased the Notes from the
Underwriters pursuant to a Dealers Agreement
or as representatives of such Dealers or (B)
will hold the Notes on behalf of a purchaser
of the Notes from the Underwriters (other
than such Dealers), (ii) in the case of
Participants that will hold
A-6
the Notes as described in (A) above, to
debit the settlement accounts of such
Participants and credit the settlement
account of the Underwriters for an amount
equal to the aggregate principal amount of
such Notes, less the applicable selling
concession, and, (iii) in the case of
Participants that will hold the Notes as
described in (B) above, to debit the
settlement accounts of such Participants and
credit the settlement account of the
Underwriters for an amount equal to the
aggregate principal amount of such Notes.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained at the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance
with Settlement Procedure "G".
Settlement Settlement Procedures "A" through "J" set
Procedures forth above shall be completed as soon as
Timetable: possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the Trade date
B 12:00 Noon on the Trade date
C 2:00 P.M. on the Business Day before
Settlement Date
D 3:00 P.M. on Business Day before
Settlement Date
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
G-H 2:00 P.M. on Settlement Date
I 4:45 P.M. on Settlement Date
J 5:00 P.M. on Settlement Date
A-7
Settlement Procedure "I" is subject to
extension in accordance with the events
specified in SDFS operating procedures in
effect on the Settlement Date.
If Settlement of a Tranche of Book-Entry
Notes is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. on the Business Day immediately
preceding the scheduled Settlement Date.
Trustee Not to Nothing herein shall be deemed to require
Risk Funds: the Trustee to risk or expend its own
funds in connection with any payment to the
Company, or the Underwriters or any Dealer,
it being understood by all parties that
payments made by the Trustee to the Company
or the Underwriters shall be made only to
the extent that funds are provided to such
Trustee for such purpose.
Authenticity of The Company will cause the Trustee to
Signatures: furnish the Underwriters from time to time
with specimen signatures of the Trustee's
officers, employees or agents who have been
authorized by the Trustee to authenticate
Global Certificates, but the Underwriters
will not have any obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the Company or
the Trustee on any Global Certificate.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar and transfer agent
in connection with the Certificated Notes.
Procedure for The Company and the Underwriters will
Rate Setting discuss from time to time the aggregate
and Posting: principal amount and maturities of, and
the interest rates to be borne by, each
Tranche of Certificated Notes that may be
purchased by the Underwriters. If the Company
decides to set aggregate principal amounts
and maturities of, and rates to be borne by,
any Tranche to be purchased by the
Underwriters (the setting of such amounts,
maturities and rates to be referred to herein
as "Posting"), or if the Company decides to
change amounts, maturities or rates
previously posted, the Company will promptly
advise the Underwriters of the amounts,
maturities and rates to be posted.
Offering of Notes: In the event that there is a Posting, the
Underwriters will communicate the aggregate
principal amount and maturities of, and the
interest rates to be borne by, each Tranche
of Certificated Notes that is the subject of
A-8
the Posting to each of the broker-dealers
(the "Dealers") that have entered into a
Dealers Agreement with the Underwriters and,
pursuant to such Dealers Agreement, will
solicit offers to purchase the Notes in the
Tranche from the Dealers.
Purchase of The Underwriters will, no later than 10 A.M.
Notes by the (New York City time) on the third Business
Underwriters: Day subsequent to the day on which such Posting
occurs, or if such third day is not a
Business Day, on the next succeeding Business
Day, or on such later day and time as shall
be mutually agreed upon by the Company and
the Underwriters (any such day a "Trade
Date"), (i) complete, execute and deliver a
Terms Agreement that sets forth, among other
things, the amount of each Tranche that the
Underwriters is offering to purchase or (ii)
inform the Company that none of the Notes of
a particular Tranche will be purchased by the
Underwriters. Immediately upon receipt of a
completed and executed Terms Agreement from
the Underwriters, the Company will (i)
execute and deliver such Terms Agreement to
the Underwriters or (ii) inform the
Underwriters that its offer to purchase the
Notes of a particular Tranche has been
rejected.
Preparation of If any offer by the Underwriters to
Pricing purchase Notes is accepted by or on
Supplement: behalf of the Company, the Company, with
the approval of the Underwriters, will
prepare a Pricing Supplement reflecting the
terms of each Tranche and will arrange to
have ten copies thereof filed with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Securities
Act of 1933, as amended (the "Act") and will
supply one copy of such Pricing Supplement to
the Underwriters and to the Trustee. The
Underwriters will deliver, or will cause to
be delivered copies of the applicable Pricing
Supplement to (i) each of the Dealers that
purchased such Notes pursuant to a Dealers
Agreement in sufficient amounts so that a
copy of the Pricing Supplement can be
delivered to each such Dealer and each
purchaser of Notes from such Dealer and (ii)
each purchaser of Notes from the Underwriters
(other than such Dealers).
In each instance that a Pricing Supplement
is prepared, the Underwriters will affix, or
will cause to be affixed, copies of the
Pricing Supplement to the Basic Prospectus
prior to their distribution to purchasers of
the Notes from the Underwriters (other than
Dealers that are purchasing Notes from the
Underwriters with a view to their
distribution pursuant to a Dealers
Agreement) and will be responsible for
determining that such Dealers have
sufficient copies of the most current
version of the Pricing Supplements and the
related Basic Prospectuses to deliver copies
of such Pricing Supplement attached to the
Basic Prospectus to every purchaser
A-9
of the Notes, as appropriate. The
Underwriters and the Dealers will destroy
any Pricing Supplements, and any Basic
Prospectuses to which they are attached
(other than those retained for files), that
remain in their possession after Pricing
Supplements have been delivered to the
purchasers of Notes.
Delivery of A copy of the Basic Prospectus and a Pricing
Prospectus: Supplement relating to a Certificated Note
must accompany or precede any written offer
of such Note, confirmation of the purchase of
such Note and payment for such Note by its
purchaser (other than the Underwriters or a
Dealer). The Underwriters and the Dealers
will deliver a Basic Prospectus and Pricing
Supplement as herein described with respect
to each Certificated Note sold by any of
them, along with a confirmation of sale, to
each purchaser on the Business Day
immediately following the Trade Date. The
Trustee will make such delivery if such Note
is sold directly by the Company to a
purchaser (other than the Underwriters).
Issuance: On the Settlement Date (as defined in the
Underwriting Agreement) for each Tranche
sold pursuant to the Underwriting Agreement,
the Company will cause the Trustee to issue
Individual Certificates representing the
Notes in the Tranche. Each Individual
Certificate will be dated and issued as of
the date of its authentication by the
Trustee.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Denominations: The denomination of any Certificated Note
will be a minimum of $1,000 or any amount in
excess thereof that is an integral multiple
of $1,000.
Settlement: The Settlement Date with respect to any
purchase of Certificated Notes from the
Company by the Underwriters will be a date on
or before the fifth day that is a Business
Day next succeeding the Trade Date, unless
otherwise agreed by the Underwriters and the
Company and specified in the applicable Terms
Agreement. The Company will instruct the
Trustee to effect delivery of Certificated
Notes no later than 3:00 P.M., New York City
time, on the Settlement Date to the
Underwriters.
Settlement The following Settlement Procedures will
Procedures: be performed by the Company, the Trustee, the
Underwriters and each of the Dealers with
regard to each Tranche of Certificated Notes
issued by the Company on a Trade Date:
A. The Underwriters will advise the Company
in writing of the following settlement
information:
A-10
1. Principal or face amount.
2. Stated maturity.
3. In the case of a Fixed Rate Book-Entry
Note, the interest rate and reset,
redemption, repayment and extension
provisions (if any) or, in the case of a
Floating Rate Book-Entry Note, the Base
Rate, Initial Interest Rate (if known at
such time) Interest Reset Period, Interest
Reset Dates, Index Maturity, Spread and/or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any) and reset, redemption,
repayment and extension provisions (if
any).
4. Monthly, quarterly, semi-annual or annual
interest payments.
5. Settlement date.
6. Underwriters' price.
7. Dealers' selling concession.
8. Specified Currency, Denominated currency,
Indexed Currency, Base Exchange Rate, and
the Determination Date, if applicable.
9. Whether the Notes will have a Survivor's
Option.
10. Whether such Book-Entry Note is an OID Note
and, if so, the total amount of OID, the yield
to maturity and the initial accrual period
OID.
11. Any other terms necessary to describe the
relevant Tranche.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any
time on the same date) or electronic
transmission (i) of the information set
forth in Settlement Procedure "A" above
and (ii) that the Notes are Certificated
Notes. Each such communication by the
Company shall constitute a
representation and warranty by the
Company to the Trustee for such Note and
the Underwriters that (i) such Note is
then, and at the time of issuance and
sale thereof will be, duly authorized
for issuance and sale by the Company and
(ii) such Note, and the Certificate
representing such Note, will conform
with the terms of the Indenture for such
Note.
C. To the extent the Company has not
already done so, the Company will
deliver to the Trustee for such Notes
individual certificates representing the
Tranche in a form that has been approved
by the Company, the Underwriters and the
Trustee.
D. The Trustee will complete the individual
certificates representing each Tranche,
and authenticate the individual
certificates repre senting such Tranche.
E. Delivery of each Certificated Note by
the Trustee will be made when the
Trustee receives notice from the Company
that it has received payment from the
Underwriters of an amount in
A-11
immediately available funds equal to the
face value of such Certificated Note
less the Underwriters' discount.
Settlement Settlement Procedures "A" through "E" set
Procedures forth above shall be completed as soon as
Timetable: possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on Business Day
before Settlement Date
B On the day two Business Days
prior to Settlement Date
C 2:15 P.M. two Business Days
prior to Settlement Date
D 2:15 P.M. on Settlement Date
E 3:00 P.M. on Settlement Date
Trustee Not to Nothing herein shall be deemed to require
Risk Funds: the Trustee to risk or expend its own
funds in connection with any payment to the
Company, or the Underwriters or any Dealer,
it being understood by all parties that
payments made by the Trustee to the Company
or the Underwriters shall be made only to
the extent that funds are provided to such
Trustee for such purpose.
Authenticity of The Company will cause the Trustee to
Signatures: furnish the Underwriters from time to time
with specimen signatures of the Trustee's
officers, employees or agents who have been
authorized by the Trustee to authenticate
Certificated Notes, but the Underwriters
will not have any obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the Company or
the Trustee on any Certificated Note.
A-12
EXHIBIT B
Salomon Brothers Inc
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Notes, Series J
FORM OF TERMS AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Attention: Subject in all respects to the terms and conditions
contained in the Continuous Underwriting Agreement dated December
5, 1997 (the "Underwriting Agreement"), among Salomon Brothers
Inc, ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc., the
undersigned agrees to purchase the following Notes of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc.:
Principal Amount: Issue Price:
Original Issue Date: Stated Maturity
Initial Interest Rate:
Specified Currency (If other than U.S. dollars):
Survivor's Option:
Form: (If Certificated Notes)
Place of Delivery: (If Certificated Notes)
Authorized Denominations:
(If other than as set forth in the Prospectus Supplement)
Dual Currency Note: [ ] Yes (see attached) [ ] No
Optional Payment Currency:
Designated Exchange Rate:
Base Rate: [ ] CD Rate [ ] Commercial [ ] Paper Rate [ ] Federal Funds Rate
[ ] LIBOR Telerate [ ] LIBOR Reuters [ ] Treasury Rate
[ ] Treasury Rate Constant Maturity [ ] Prime Rate [ ] ▇. ▇. ▇▇▇▇▇ ▇▇▇▇
[ ] Eleventh District Cost of Funds Rate [ ] Other (see attached)
Interest Reset Period Index Maturity:
or Interest Reset Dates:
Interest Payment Dates: Accrue to Pay: [ ] Yes [ ] No
Indexed Principal Note: [ ] Yes (see attached) [ ] No
Floating Rate: [ ] Indexed Interest Rate: [ ] (see attached)
Spread Multiplier: Spread (+/-):
B-1
Spread Reset [ ] The Spread or Spread Multiplier may not be changed
prior to Stated Maturity.
[ ] The Spread or Spread Multiplier may be changed prior to
Stated Maturity (see attached).
Optional Reset Dates (if applicable):
Maximum Interest Rate: Minimum Interest Rate:
Inverse Floating Rate Note: [ ] Yes (see attached) [ ] No
Initial Fixed Interest Rate: Reset Fixed Reference Rate:
Floating Rate / Fixed Rate Note: [ ] Yes (see attached) [ ] No
Amortizing Note: [ ] Yes [ ] No
Amortization Schedule:
Optional Redemption: [ ] Yes [ ] No
Optional Redemption Dates:
Redemption Prices:
Bond Yield to Maturity: Bond Yield to Call:
Optional Repayment: [ ] Yes [ ] No
Optional Repayment Dates:Optional Repayment Prices:
Optional Extension of Stated Maturity: [ ] Yes [ ] No
Final Maturity:
Discount Note: [ ] Yes [ ] No
Total Amount of OID: Yield to Maturity:
Renewable Note: [ ] Yes (see attached) [ ] No
Special Election Interval (if applicable):
Amount (if less than entire principal amount)
as to which election may be exercised:
Method of Payment for the Notes:
Requirements for delivery, if any, of opinions of counsel,
certificates from the Company or its officers or a letter from
the Company's independent public accountants:
Other terms:
The provisions of the Underwriting Agreement and the
related definitions are incorporated by reference herein and
shall be deemed to have the same force and effect as if set forth
in full herein.
Between the date of this Agreement and the Settlement
Date with respect to this Agreement, you will not, without the
undersigned's prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company
substantially similar to the Notes (other than (i) the Notes to
be sold pursuant to this Agreement and (ii) commercial paper
issued in the ordinary course of business), except as may
otherwise be provided herein.
B-2
Date:
[Underwriters]
By__________________________
Accepted[ at 10 A.M.]:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS INC.
By_________________________
B-3
EXHIBIT C
[Underwriter's Letterhead]
Form of Master Selected Dealer Agreement
[Name of Dealer]
[▇▇▇▇▇▇'s Address]
Dear Sirs:
In connection with public offerings of securities
after the date hereof for which we are acting as manager of an
underwriting syndicate or are otherwise responsible for the
distribution of securities to the public by means of an offering
of securities for sale to selected dealers, you may be offered
the right as such a selected dealer to purchase as principal a
portion of such securities. This will confirm our mutual
agreement as to the general terms and conditions applicable to
your participation in any such selected dealer group organized by
us as follows.
1. Applicability of this Agreement. The terms and
conditions of this Agreement shall be applicable to any public
offering of securities ("Securities"), pursuant to a registration
statement filed under the Securities Act of 1933 (the "Securities
Act"), or exempt from registration thereunder (other than a
public offering of Securities effected wholly outside the United
States of America), wherein Salomon Brothers Inc (acting for its
own account or for the account of any underwriting or similar
group or syndicate) is responsible for managing or otherwise
implementing the sale of the Securities to selected dealers
("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of
Securities to you as a Selected Dealer is hereinafter called an
"Offering". In the case of any Offering where we are acting for
the account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters,
including, in the case of any Offering where we are acting with
others as representatives of Underwriters, such other
representatives.
2. Conditions of Offering; Acceptance and Purchases.
Any Offering will be subject to delivery of the Securities and
their acceptance by us and any other Underwriters, may be subject
to the approval of all legal matters by counsel and the
satisfaction of other conditions, and may be made on the basis of
reservation of Securities or an allotment against subscription.
We will advise you by telegram, telex or other form of written
communication ("Written Communication", which term, in the case
of any Offering described in Section 3(a) or 3(b) hereof, may
include a prospectus or offering circular) of the particular
method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date
referred to in Section 3(c) hereof) of any Offering in which you
are invited to participate. To the extent such supplementary
terms and conditions are inconsistent with any provision herein,
such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication,
acceptances and other communications by you with respect to an
Offering should be sent to [Salomon Brothers Inc, Seven World
Trade Center, New York, New York 10048 (Telecopy: (212)
783-4120)]. We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities
purchased by you shall be paid for on such date as
we shall determine, on one day's prior notice to you, by
certified or official bank check, in an amount equal to the
Public Offering Price (as hereinafter defined) or, if we shall so
advise you, at such Public Offering Price less the Concession (as
hereinafter defined), payable in New York Clearing House funds to
the order of [Salomon Brothers Inc, Seven World Trade Center, New
York, New York 10048], against delivery of the Securities. If
Securities are purchased and paid for at such Public Offering
Price, such Concession will be paid after the termination of the
provisions of Section 3(c) hereof with respect to such
Securities. Notwithstanding the foregoing, unless notified
otherwise by us, payment for and delivery of Securities purchased
by you shall be made through the facilities of The Depository
Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written
Communication to you from us or, if you are not a member,
settlement may be made through a correspondent who is a member
pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering
of Securities that are registered under the Securities Act
("Registered Offering"), we shall provide you with such number of
copies of each preliminary prospectus and of the final prospectus
relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange
Act of 1934 (the "Exchange Act") and the applicable rules and
regulations of the Securities and Exchange Commission thereunder.
You represent and warrant that you are familiar with Rule 15c2-8
under the Exchange Act relating to the distribution of
preliminary and final prospectuses and agree that you will comply
therewith. You agree to make a record of your distribution of
each preliminary prospectus and, when furnished with copies of
any revised preliminary prospectus, you will, upon our request,
promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that
in purchasing Securities in a Registered Offering you will rely
upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You
will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any
Underwriters to give any information or to make any
representation not contained in the prospectus in connection with
the sale of such Securities.
(b) Offerings Pursuant to Offering Circular. In the
case of any Offering of Securities, other than a Registered
Offering, which is made pursuant to an offering circular or other
document comparable to a prospectus in a Registered Offering, we
shall provide you with such number of copies of each preliminary
offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will
comply with the applicable Federal and state laws, and the
applicable rules and regulations of any regulatory body
promulgated thereunder, governing the use and distribution of
offering circulars by brokers or dealers. You agree that in
purchasing Securities pursuant to an offering circular you will
rely upon no statements whatsoever, written or oral, other than
the statements in the final offering circular delivered to you by
us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to an offering circular or by any
Underwriters to give any information or to make any
representation not contained in the offering circular in
connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any
Offering of Securities, we will inform you by a Written
Communication of the public offering price, the selling
concession, the reallowance (if any) to dealers and the time when
you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering
price, the selling concession and the reallowance to dealers. The
offering price, selling concession and reallowance (if
5
any) to dealers at any time in effect with respect to an Offering
are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the provisions of
this Section 3(c) shall be terminated pursuant to Section 4
hereof, you agree to offer Securities to the public only at the
Public Offering Price, except that if a Reallowance is in effect,
a reallowance from the Public Offering Price not in excess of
such Reallowance may be allowed as consideration for services
rendered in connection with distribution to dealers who are
actually engaged in the investment banking or securities
business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. (the "NASD") and
who are either members in good standing of the NASD or foreign
banks, dealers or institutions not eligible for membership in the
NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the
conditions with respect to foreign banks, dealers and
institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments.
We may, with respect to any Offering, be authorized to over-allot
in arranging sales to Selected Dealers, to purchase and sell
Securities for long or short account and to stabilize or maintain
the market price of the Securities. You agree that, upon our
request at any time and from time to time prior to the
termination of the provisions of Section 3(c) hereof with respect
to any Offering, you will report to us the amount of Securities
purchased by you pursuant to such Offering which then remain
unsold by you and will, upon our request at any such time, sell
to us for our account or the account of one or more Underwriters
such amount of such unsold Securities as we may designate at the
Public Offering Price less an amount to be determined by us not
in excess of the Concession. If, prior to the later of (i) the
termination of the provisions of Section 3(c) hereof with respect
to any Offering or (ii) the covering by us of any short position
created by us in connection with such Offering for our account or
the account of one or more Underwriters, we purchase or contract
to purchase for our account or the account of one or more
Underwriters in the open market or otherwise any Securities
purchased by you under this Agreement as part of such Offering,
you agree to pay us on demand an amount equal to the Concession
with respect to such Securities (unless you shall have purchased
such Securities pursuant to Section 2 hereof at the Public
Offering Price in which case we shall not be obligated to pay
such Concession to you pursuant to Section 2) plus transfer taxes
and broker's commissions or dealer's mark-up, if any, paid in
connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are
actually engaged in the investment banking or securities business
and either a member in good standing of the NASD or, if you are
not such a member, you are a foreign bank, dealer or institution
not eligible for membership in the NASD which agrees to make no
sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents
therein, and in making other sales to comply with the NASD's
interpretation with respect to free riding and withholding. You
further represent, by your participation in an Offering, that you
have provided to us all documents and other information required
to be filed with respect to you, any related person or any person
associated with you or any such related person pursuant to the
supplementary requirements of the NASD's interpretation with
respect to review of corporate financing as such requirements
relate to such Offering.
You agree that, in connection with any purchase or
sale of the Securities wherein a selling concession, discount or
other allowance is received or granted, (1) you will comply with
the provisions of section 24 of Article III of the NASD's Rules
of Fair Practice and (2) if you are a non-NASD member broker or
dealer in a foreign country, you will also comply (a) as though
you were an NASD member, with the provision of sections 8 and 36
thereof and (b) with section 25 thereof as that section applies
to a non-NASD member broker or dealer in a foreign country.
6
You further agree that, in connection with any
purchase of securities from us that is not otherwise covered by
the terms of this Agreement (whether we are acting as manager, as
a member of an underwriting syndicate or a selling group or
otherwise), if a selling concession, discount or other allowance
is granted to you, clauses (1) and (2) of the preceding paragraph
will be applicable.
(f) Relationship among Underwriters and Selected
Dealers. We may buy Securities from or sell Securities to any
Underwriters or Selected Dealer and, without consent, the
Underwriters (if any) and the Selected Dealers may purchase
Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. You are
not authorized to act as agent for us, any Underwriters or the
issuer or other seller of any Securities in offering Securities
to the public or otherwise. Neither we nor any Underwriters shall
be under any obligation to you except for obligations assumed
hereby or in any Written Communication from us in connection with
any Offering. Nothing contained herein or in any Written
Communication from us shall constitute the Selected Dealers an
association or partners with us or any Underwriters or with one
another. If the Selected Dealers, among themselves or with the
Underwriters, should be deemed to constitute a partnership for
Federal income tax purposes, then you elect to be excluded from
the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986 and agree not to take any position
inconsistent with that election. You authorize us, in our
discretion, to execute and file on your behalf such evidence of
that election as may be required by the Internal Revenue Service.
In connection with any Offering, you shall be liable for your
proportionate amount of any tax, claim, demand or liability that
may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or
any of them, constitute an association, an unincorporated
business or other entity, including, in each case, your
proportionate amount of any expense incurred in defending against
any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall
inform you as to any advice we have received from counsel
concerning the jurisdictions in which Securities have been
qualified for sale or are exempt under the securities or blue sky
laws of such jurisdictions, but we do not assume any obligation
or responsibility as to your right to sell Securities in any such
jurisdiction.
(h) Compliance with Law. You agree that in selling
Securities pursuant to any Offering (which agreement shall also
be for the benefit of the issuer or other seller of such
Securities) you will comply with all applicable laws, rules and
regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and
regulations of the Securities and Exchange Commission thereunder,
the applicable rules and regulations of the NASD, the applicable
rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and
regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This
Agreement shall continue in full force and effect until
terminated by a written instrument executed by each of the
parties hereto. This Agreement may be supplemented or amended by
us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to
any Offering to which this Agreement applies after the date of
such supplement or amendment. Each reference to "this Agreement"
herein shall, as appropriate, be to this Agreement as so amended
and supplemented. The terms and conditions set forth in Section
3(c) hereof with regard to any Offering will terminate at the
close of business on the 30th day after the commencement of the
public offering of the Securities to which such Offering relates,
but in our discretion may be extended by us for a further period
not exceeding 30 days and in our discretion, whether or not
extended, may be terminated at any earlier time.
7
5. Successors and Assigns. This Agreement shall be binding
on, and inure to the benefit of, the parties hereto and other
persons specified in Section 1 hereof, and the respective
successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and
conditions set forth herein with respect to any Offering together
with such supplementary terms and conditions with respect to such
Offering as may be contained in any Written Communication from us
to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
Please confirm by signing and returning to us the
enclosed copy of this Agreement that your subscription to, or
your acceptance of any reservation of, any Securities pursuant to
an Offering shall constitute (i) acceptance of and agreement to
the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any
Written Communication from us in connection with such Offering,
all of which shall constitute a binding agreement between you and
us, individually or as representative of any Underwriters, (ii)
confirmation that your representations and warranties set forth
in Section 3 hereof are true and correct at that time, (iii)
confirmation that your agreements set forth in Sections 2 and 3
hereof have been and will be fully performed by you to the extent
and at the times required thereby and (iv) in the case of any
Offering described in Section 3(a) and 3(b) hereof,
acknowledgement that you have requested and received from us
sufficient copies of the final prospectus or offering circular,
as the case may be, with respect to such Offering in order to
comply with your undertakings in Section 3(a) or 3(b) hereof.
Very truly yours,
[Name of Underwriter]
By:_________________________
Name:
Title:
CONFIRMED:........................., 19....
...........................................
(Name of Dealer)
By:........................................
(Sign name and print title)
8
EXHIBITS D-G
FORMS OF OPINIONS, CERTIFICATES AND COMFORT LETTERS