EXHIBIT 1
Universal Corporation
$400,000,000
Medium-Term Notes, Series C
Distribution Agreement
October 1, 2003
Wachovia Capital Markets, LLC
ABN AMRO Incorporated
Deutsche Bank Securities Inc.
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
UBS Securities LLC
Ladies and Gentlemen:
Universal Corporation, a Virginia corporation (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes, Series C (the
"Securities") with an aggregate initial offering price of up to the amount of
securities registered under the Registration Statement (as defined in Section
1(a) hereof) (or the equivalent thereof in one or more foreign currencies or
currency units) reduced by the aggregate amount of debt securities so registered
to be, or that have been, sold otherwise than pursuant to this Distribution
Agreement (the "Agreement") or any Terms Agreement (as defined below) and agrees
with each of you (individually, an "Agent," and collectively, the "Agents") as
set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto or in
such other form as may be agreed by the parties to that particular agreement,
relating to such sale in accordance with Section 2(a) hereof. This Agreement
shall not be construed to create either an obligation on the part of the Company
to sell any Securities or an obligation of any of the Agents to purchase
Securities as principal.
The Securities will be issued under an indenture, dated as of February 1,
1991 (as it may be amended from time to time, the "Indenture"), between the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and
Chemical Bank), as trustee (including any successor trustee thereunder, the
"Trustee"), in the forms attached hereto as Exhibits 1 and 2. The Securities
shall have the maturity ranges, interest rates, if any, redemption provisions
and other terms set forth in the Prospectus (as defined below) as it may be
amended or supplemented from time to time. The Securities will be issued, and
the terms and rights thereof established, from time to time by the Company in
accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent that:
a. A registration statement on Form S-3 (File No. 333-103155) in respect of
the Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendments
thereto, each in the form heretofore delivered to such Agent, excluding exhibits
to such registration statement, but including all documents incorporated by
reference in the prospectus included in the registration statement, has been
declared effective by the Commission in such form; no other document with
respect to such registration statement or any such incorporated document has
heretofore been filed or transmitted for filing with the Commission (other than
the prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Securities Act of 1933, as amended (the "Act"), each in
the form heretofore delivered to the Agents); and no stop order suspending the
effectiveness of the registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus;" the
various parts of such registration statement, (together with any other
registration statement with respect to the Securities), including all exhibits
thereto and the documents incorporated by reference in the prospectus contained
in the registration statement at the time such registration statement became
effective but excluding all Forms T-1, each as amended at the time such part
became effective, are hereinafter collectively called the "Registration
Statement;" the prospectus contained in such registration statement and all
applicable amendments or supplements thereto (including the prospectus
supplement dated the date of this Agreement) relating to the Securities, 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, is hereinafter called
the "Prospectus;" any reference herein to any Preliminary Prospectus or the
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 Preliminary Prospectus or Prospectus, as the case may be; any supplement
to the Prospectus that sets forth only the terms of a particular issue of the
Securities, and that shall be substantially in the form of Annex II hereto, is
hereinafter called a "Pricing Supplement"; unless otherwise specified herein,
(i) any reference to any amendment or
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supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein by reference;
(ii) any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement; and (iii) any reference to the Prospectus as amended or supplemented
shall be deemed to refer to and include the Prospectus as amended or
supplemented (including by the applicable Pricing Supplement filed in accordance
with Section 4(a) hereof) in relation to Securities to be sold pursuant to this
Agreement, in the form filed or transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, 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 Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; 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 and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided, however, that
the Company makes no representation and warranty with respect to any statement
contained in the Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for use
in the Prospectus relating to a particular issuance;
c. The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), as applicable,
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company makes no representation and warranty with respect to any
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statement contained in the Prospectus made in reliance upon and in conformity
with information furnished in writing to the Company by any Agent expressly for
use in the Prospectus relating to a particular issuance;
d. Subsequent to the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as may be otherwise stated in
the Registration Statement or Prospectus, there has not been (A) any material
and unfavorable change, financial or otherwise, in the business, properties,
business prospects, regulatory environment, results of operations or financial
condition of the Company and its subsidiaries taken as a whole, (B) any
transaction that is material to the Company and its subsidiaries taken as a
whole, entered into by, or approved by the Board of Directors of, the Company or
any of its subsidiaries or (C) any obligation, contingent or otherwise, directly
or indirectly incurred by the Company or any of its Material Subsidiaries (as
defined below) which is material to the Company and its subsidiaries taken as a
whole except for normal trade obligations incurred in the ordinary course of the
Company's or any of its subsidiaries' business;
e. All of the issued and outstanding shares of capital stock, including
common stock, of the Company, have been duly and validly authorized and issued
and are fully paid and non-assessable;
f. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia,
with full corporate power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus, to
execute and deliver this Agreement, the Terms Agreement and the Indenture and to
issue and sell the Securities as herein and therein contemplated;
g. (A) Each of the Company's subsidiaries listed on Schedule A hereto, as
such Schedule A may be amended by the Company from time to time (each a
"Material Subsidiary" and collectively, the "Material Subsidiaries"), has been
duly incorporated or organized and is validly existing in good standing under
the laws of its respective jurisdiction of incorporation or organization with
full corporate power and authority to own its respective properties and to
conduct its respective business; and (B) each of the Company's subsidiaries that
is not a Material Subsidiary has been duly incorporated or organized and is
validly existing in good standing under the laws of its respective jurisdiction
of incorporation or organization with full corporate power and authority to own
its respective properties and to conduct its respective business in each
jurisdiction in which the failure to do so, individually or in the aggregate,
would have a material adverse effect on the operations, business or financial
condition of the Company and its subsidiaries, taken as a whole;
h. The Company and each of its principal domestic subsidiaries, identified as
such on Schedule A (each, a "Principal Domestic Subsidiary" and collectively,
the
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"Principal Domestic Subsidiaries") are duly qualified or licensed by each
jurisdiction in which they conduct their respective businesses and in which the
failure, individually or in the aggregate, to be so licensed or qualified would
have a material adverse effect on the operations, business, or financial
condition of the Company and its subsidiaries taken as a whole, and the Company
and its Material Subsidiaries are duly qualified, and are in good standing, in
each jurisdiction in which they own or lease real property or maintain an office
in which the failure to do so, individually or in the aggregate, would have a
material adverse effect on the operations, business or financial condition of
the Company and its subsidiaries, taken as a whole;
i. The Indenture has been duly authorized by all necessary corporate action
on the part of the Company, has been executed and delivered by the Company, and
(assuming the Indenture has been duly authorized, executed and delivered by the
Trustee) constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
j. The Securities have been duly authorized by all necessary corporate action
on the part of the Company, and, when issued, executed, authenticated and
delivered pursuant to this Agreement, any Terms Agreement and the Indenture
against payment of the consideration therefor, will have been duly executed and
delivered and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
k. This Agreement and any Terms Agreement have been duly authorized by all
necessary corporate action on the part of the Company and have been, executed
and delivered by the Company;
l. All regulatory consents, authorizations, approvals and filings required to
be obtained or made by the Company under applicable state and federal laws for
the issuance, sale and delivery of the Securities by the Company to the Agents
have been obtained or made;
m. The execution, delivery and performance of this Agreement, the Terms
Agreement and the Indenture by the Company and the issuance of the Securities
and the consummation by the Company of the transactions contemplated hereby and
thereby do not and will not conflict with, or result in any breach of, or
constitute a default under (nor constitute any event that with notice, lapse of
time, or both, would constitute a breach of or default under) (1) any provisions
of the charter or by-laws of the Company or any of its subsidiaries or under any
provision of any license, indenture, mortgage, deed of trust, bank loan, credit
agreement or other agreement or instrument to which the Company or
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any of its subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its subsidiaries
in which such conflict, breach or default, individually or in the aggregate,
would have a material adverse effect on the operations, business or financial
condition of the Company and its subsidiaries, taken as a whole;
n. Neither the Company nor, to the Company's knowledge, after reasonable
investigation, any of its Material Subsidiaries is in breach of, or in default
under (nor has any event occurred that with notice, lapse of time, or both would
constitute a breach of, or default under), any license, indenture, mortgage,
deed of trust, bank loan or any other agreement or instrument to which the
Company or any of its Material Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected by or under any law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of its Material Subsidiaries in which such breach or default, individually
or in the aggregate, would have a material adverse effect on the operations,
business or financial condition of the Company and its subsidiaries, taken as a
whole; and
o. To the Company's knowledge, after reasonable investigation, there are no
contracts, licenses, agreements, leases or documents of a character that are
required to be filed as exhibits to the Registration Statement or to be
summarized or described in the Prospectus that have not been so filed,
summarized or described.
p. Immediately after any sale of Securities by the Company hereunder or under
any Terms Agreement, the aggregate amount of Securities which shall have been
issued and sold by the Company hereunder or under any Terms Agreement and of any
debt securities of the Company (other than such Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
q. The Indenture conforms, and the Securities will conform, in all material
respects to the description thereof contained in the Registration Statement and
Prospectus;
r. To the Company's knowledge, Ernst & Young LLP, whose reports on the
consolidated financial statements of the Company and its subsidiaries are filed
with the Commission in documents incorporated by reference into the Registration
Statement and Prospectus, are independent public accountants as required by the
Act and the applicable published rules and regulations thereunder;
s. The audited consolidated financial statements of the Company and its
subsidiaries incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated balance sheet of the Company and its
subsidiaries as of the dates indicated and the consolidated statements of income
and cash flows and changes in shareholders' equity of the Company and its
subsidiaries for the periods specified; the
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consolidated financial statements of the Company and its subsidiaries have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis during the periods involved;
t. The Company is not and, after giving effect to each offering and sale of
the Securities, will not be, required to register as an "investment company or
an affiliated person of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder;
u. Except as described in the Registration Statement and the Prospectus, (i)
the operations of the Company and its Material Subsidiaries are in compliance
with all applicable environmental laws, except where the failure to comply with
any such laws, whether individually or in the aggregate, would not have a
material adverse effect on the operations, business or financial condition of
the Company and its subsidiaries, taken as a whole, (ii) the Company and its
Material Subsidiaries have obtained all environmental, health and safety
permits, licenses and approvals necessary for their operations, all such
permits, licenses and approvals are in effect and the Company and its Material
Subsidiaries are in compliance with the terms and conditions thereof, except
where the failure to obtain any such permits, licenses or approvals, or to
comply with the terms and conditions thereof, whether individually or in the
aggregate, would not have a material adverse effect on the operations, business
or financial condition of the Company and its subsidiaries, taken as a whole,
(iii) with respect to any property currently or formerly owned, leased or
operated by the Company of any of its Material Subsidiaries, (a) neither the
Company nor any such Material Subsidiary is subject to any judicial or
administrative proceeding or any order from or agreement with any governmental
authority (collectively, "Proceedings"), and (b) the Company does not have
knowledge of any pending or threatened investigation by any governmental
authority (collectively, "Investigations") relating to any violation or alleged
violation of any environmental law, any release or threatened release of a
hazardous material into the environment, or any remedial action that may be
necessary in connection with any such violation or release, except for such
Proceedings or Investigations that, whether individually or in the aggregate,
are not expected to have a material adverse effect on the operations, business
or financial condition of the Company and its subsidiaries, taken as a whole,
(iv) neither the Company nor any such Material Subsidiary has filed any notice
under any environmental law indicating past or present treatment, storage,
disposal or release of a hazardous material into the environment in a manner
that is not in compliance with, or that could result in liability under,
applicable environmental laws, except where such non-compliance or liability,
whether individually or in the aggregate, is not expected to have a material
adverse effect on the operations, business or financial condition of the Company
and its subsidiaries, taken as a whole, and (v) neither the Company nor any such
Material Subsidiary has received notice of a claim that it may be subject to
liability (a "Notice") as a result of a release or threatened release of
hazardous material, except for such Notice that, whether individually or in the
aggregate, is not expected to have a material adverse
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effect on the operations, business or financial condition of the Company and its
subsidiaries taken as a whole and, to the Company's knowledge, there is no
reasonable basis for any such claim, action, suit or investigation with respect
to any environmental law.
2. (a) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit and receive offers to purchase the Securities from
the Company upon the terms and conditions set forth in the Prospectus as amended
or supplemented from time to time. So long as this Agreement shall remain in
effect with respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, any debt securities
with a maturity at the time of original issuance of 12 months or more except
pursuant to this Agreement or any Terms Agreement, or except in an offering of
Securities, which are not required to be registered under the Act, or except in
connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may solicit and
accept offers to purchase, Securities directly on its own behalf in transactions
with persons other than broker-dealers, and, in the case of any such sale not
resulting from a solicitation made by any Agent, no commission will be payable
with respect to such sale. These provisions shall not limit Section 4(e) hereof
or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex III (as the same may be amended from time to time by written agreement
between the Agents and the Company, the "Administrative Procedure"). The
provisions of the Administrative Procedure shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in the Administrative
Procedure. The Company will furnish to the Trustee a copy of the Administrative
Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one Business Day,* after receipt of notice from the
Company, the Agents will suspend solicitation of offers to purchase Securities
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed. During such
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* As used herein, "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in New York are authorized by
law, regulation or executive order to remain closed.
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period, the Company shall not be required to comply with the provisions of
Sections 4(g), 4(h), 4(i), 4(j) and 4(k). Upon advising the Agents that such
solicitation may be resumed, however, the Company shall simultaneously provide
the documents required to be delivered by Sections 4(g), 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the Agents. In addition,
any failure by the Company to comply with its obligations hereunder, including
its obligations to deliver the documents required by Sections 4(g), 4(h), 4(i),
4(j) and 4(k), shall automatically terminate the Agents' obligations hereunder,
including their obligations to solicit offers to purchase the Securities
hereunder as agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of settlement
of any sale of a Security by the Company as a result of a solicitation made by
such Agent, in an amount equal to the following applicable percentage of the
principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year .125%
From 1 years to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
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From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
Greater than 30 years As agreed to by the Company and the
applicable Agent at the time of sale
(b) Each sale of Securities by the Company to any Agent as principal shall
be made in accordance with the terms of this Agreement and (unless the Company
and such Agent shall otherwise agree) a Terms Agreement which will provide for
the sale of such Securities by the Company to, and the purchase thereof by, such
Agent; a Terms Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent; the commitment of any Agent to
purchase Securities as principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth; each Terms Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Company for such Securities, any provisions relating
to rights of, and default by, agents acting together with such Agent in the
reoffering of the Securities and the time and date and place of delivery of and
payment for such Securities; such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof and such Terms Agreement may also
include such other provisions (including provisions that modify this Agreement
insofar as it sets forth the agreement between the Company and such Agent) as
the Company and such Agent may agree upon. Each Agent proposes to offer
Securities purchased by it as principal from the Company for sale at prevailing
market prices or prices related thereto at the time of sale, which may be equal
to, greater than or less than the price at which such Securities are purchased
by such Agent from the Company.
For each sale of Securities by the Company to an Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as set forth
in the Administrative Procedure. For each such sale of Securities by the Company
to an Agent as principal that is not made pursuant to a Terms Agreement, the
Company agrees to pay such Agent a commission (or grant an equivalent discount)
as provided in Section 2(a)
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hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be purchased
from the Company by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is referred to
herein as a "Time of Delivery."
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, and whether acting as agent, as principal
under any Terms Agreement or otherwise, not to solicit offers to purchase or
otherwise offer, sell or deliver such Security, directly or indirectly, in, or
to residents of, the country issuing such currency, except as permitted by
applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on the
Commencement Date (as defined below) shall be delivered to the Agents at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Eighty ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement between the Agents
and the Company but, unless otherwise agreed by the Company and the Agents, in
no event shall be later than the day prior to the date on which solicitation of
offers to purchase Securities is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the "Commencement
Date").
4. The Company covenants and agrees with each Agent:
(a)(i) To make no amendment or supplement to the Registration Statement or
the Prospectus (A) prior to the Commencement Date that shall be reasonably
disapproved by any Agent promptly after such Agent receives reasonable notice
thereof or (B) after the date of any Terms Agreement or other agreement by an
Agent to purchase Securities as principal and prior to the related Time of
Delivery that shall be reasonably disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable notice
thereof;
(ii) to prepare, with respect to any Securities to be sold by the Company
through or to such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Securities in a form previously approved by such Agent
and to file such Pricing Supplement pursuant to Rule 424(b)(3) under the Act
not later than the close of business of the Commission on the fifth business
day after the date on which such Pricing Supplement is first used;
(iii) to make no amendment or supplement to the Registration Statement or
Prospectus, other than by (a) the incorporation by reference of an Exchange
Act filing or (b) any Pricing Supplement that relates to an offering of
Securities or (c) any amendment or supplement that relates exclusively to an
offering of debt securities other than the Securities, at any time prior to
having afforded each Agent a reasonable opportunity to review and comment
thereon;
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(iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period to advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or has become effective or any supplement to
the Prospectus or any amended Prospectus (other than by (a) the
incorporation by reference of an Exchange Act filing, (b) any Pricing
Supplement that relates to an offering of Securities or (c) any
amendment or supplement that relates exclusively to an offering of debt
securities other than the Securities) has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any such Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) (i) To furnish such Agent with copies of the Registration Statement
and each amendment thereto and with copies of the Prospectus as each time
amended or supplemented, other than by (x) the incorporation by reference of an
Exchange Act filing or (y) any Pricing Supplement that relates to an offering of
Securities or (z) any amendment or supplement that relates exclusively to an
offering of debt securities other than the Securities (except as provided in the
Administrative Procedure), in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time;
(ii) if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities (including
Securities purchased from the Company by such Agent as principal) and
if at such time any event shall have
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occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
such Agent and request such Agent, in its capacity as agent of the
Company, to suspend solicitation of offers to purchase Securities from
the Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not later than
one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then amended
or supplemented, to so advise such Agent promptly by telephone (with
confirmation in writing) and to prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or supplemented that will
correct such statement or omission or effect such compliance;
(ii) notwithstanding paragraph (i) above, if during the period
specified in such paragraph such Agent continues to own Securities
purchased from the Company by such Agent as principal or such Agent is
otherwise required to deliver a prospectus in respect of transactions
in the Securities, the Company shall promptly prepare and file with the
Commission such an amendment or supplement and furnish without charge
to such Agent as many copies as it may from time to time during such
period reasonably request of such amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than 12 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158
under the Act);
(e) That, from the date of any Terms Agreement with such Agent or other
agreement by such Agent to purchase Securities as principal and continuing to
and including the later of (i) the termination of the trading restrictions for
the Securities purchased thereunder, if any, as notified to the Company by such
Agent, and (ii) the related Time of Delivery, the Company will not, without the
prior written consent of such Agent, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which both mature more than 12
months after such Time of Delivery and are substantially similar to the
Securities;
-12-
(f) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase from the Company by such Agent as
principal not pursuant to a Terms Agreement), and each execution and delivery by
the Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and correct as of the
date of such acceptance or of such Terms Agreement, as the case may be, as
though made at and as of such date, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating
to such Securities);
(g) That reasonably in advance of each time the Registration Statement
or the Prospectus shall be amended or supplemented (other than by (a) the
incorporation by reference of an Exchange Act filing, (b) any Pricing Supplement
that relates to an offering of Securities or (c) any amendment or supplement
that relates exclusively to an offering of debt securities other than the
Securities), and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement, the Company shall furnish to ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP counsel to the Agents, such papers and information as they
may reasonably request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(h) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by (a) the incorporation by reference of
an Exchange Act filing, (b) any Pricing Supplement that relates to an offering
of Securities or (c) any amendment or supplement that relates exclusively to an
offering of debt securities other than the Securities), and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement, the Company shall furnish or cause to be furnished forthwith to such
Agent a written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, or
other counsel for the Company satisfactory to such Agent, dated the date of such
amendment, supplement or incorporation or the Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred to in Section 6(c)
hereof which was last furnished to such Agent (or any other Agent) to the same
extent as though it were addressed to such Agent (if applicable) and dated the
date of such letter authorizing reliance (except that the statements in such
last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such counsel referred to
in Section 6(c) hereof but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by (a) the incorporation by reference of
an Exchange Act
-13-
filing, (b) any Pricing Supplement that relates to an offering of Securities or
(c) any amendment or supplement that relates exclusively to an offering of debt
securities other than the Securities) and each time the Company sells Securities
to such Agent as principal pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written opinion of
the Secretary and General Counsel of the Company, or the Assistant Secretary of
the Company, dated the date of such amendment, supplement or incorporation or
the Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on the
opinion of such counsel referred to in Section 6(d) hereof which was last
furnished to such Agent (or any other Agent) to the same extent as though it
were addressed to such Agent (if applicable) and dated the date of such letter
authorizing reliance (except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion of the same
tenor as the opinion of such counsel referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by (a) the incorporation by reference of
an Exchange Act filing, (b) any Pricing Supplement that relates to an offering
of Securities or (c) any amendment or supplement that relates exclusively to an
offering of debt securities other than the Securities), and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement, the Company shall cause the independent certified public accountants
who have certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment, supplement or
incorporation or the Time of Delivery relating to such sale, as the case may be,
in form satisfactory to such Agent, of the same tenor as the letter referred to
in Section 6(e) hereof but modified to relate to the Registration Statement and
the Prospectus as amended or 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, to the
extent such financial statements and other information are available as of a
date not more than five business days prior to the date of such letter;
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date as though
made at and as of such date, rather than repeat, statements with respect to such
financial information or other matters made in the letter referred to in Section
6(e) hereof which was last furnished to such Agent or any other Agent;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by (a) the incorporation by reference of
an Exchange Act filing, (b) any Pricing Supplement that relates to an offering
of Securities or (c) any amendment or supplement that relates exclusively to an
offering of debt securities other than the Securities), and each time the
Company sells Securities to such Agent as
-14-
principal pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment or incorporation or the Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of the
Company as shall be satisfactory to such Agent, to the effect that the
statements contained in the certificates referred to in Section 6(j) hereof
which was last furnished to such Agent are true and correct at such date as
though made at and as of such date (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such date), or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(j) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities from
the Company as the result of an offer to purchase solicited by such Agent the
right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any condition
set forth in Section 6(a), 6(f), 6(g), 6(h) or 6(i) hereof shall not have been
satisfied (it being understood that the judgment of such person with respect to
the impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments of
an Agent with respect to certain matters referred to in Sections 6(f) and 6(h)
hereof, and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(f) and 6(h) on behalf of
any such person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the reasonable, documented,
out-of-pocket fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus, the Prospectus and
any Pricing Supplements and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to such Agent; (ii) the reasonable,
documented, out-of-pocket fees, disbursements and expenses of counsel for the
Agents in connection with the establishment of the program contemplated hereby
and the offering and sale of the Securities, and opinions to be rendered by such
counsel hereunder and any Terms Agreement; (iii) the cost of printing, producing
or reproducing this Agreement, any Terms Agreement, any Indenture, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iv) all reasonable, documented out-of-pocket expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Agents in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees
incident to, and the fees and disbursements of counsel for the Agents in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the
-15-
Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the reasonable fees and disbursements of counsel for
any Trustee or such agent in connection with any Indenture and the Securities;
and (ix) any advertising expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such advertising expenses have
been approved by the Company. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities from the
Company and the obligation of any Agent to purchase Securities from the Company
as principal, pursuant to any Terms Agreement or otherwise, shall in each case
be subject, in such Agent's discretion, to the condition that all
representations and warranties and other statements of the Company herein (and,
in the case of an obligation of an Agent under a Terms Agreement, in or
incorporated by reference in such Terms Agreement) are true and correct at and
as of the Commencement Date and any applicable date referred to in Section 4(l)
hereof that is prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or at and as of both such Time
of Delivery and Time of Sale, as the case may be ("Time of Sale") shall mean,
with respect to any obligation of an Agent to purchase Securities as principal,
the time when the related Terms Agreement becomes effective or if there is no
Terms Agreement, the time when the Agent otherwise becomes committed to purchase
the Securities); the condition that prior to such Solicitation Time or Time of
Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed; and the following additional
conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus with
respect to such Securities shall have been, or will be filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of such
Agent;
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Agents, shall have
furnished to such Agent (i) such written opinions and letters, dated the
Commencement Date, with respect to the matters covered in paragraphs (ii), (iii)
and (iv) of subsection (c) below, as well as such other related matters as such
Agent may reasonably request, and (ii) if and to the extent requested by such
Agent, with respect to each applicable date referred to in Section 4(g) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, written opinions and letters, dated such applicable date, to the effect
that such Agent may rely on the opinion or opinions which were last furnished to
such Agent
-16-
(or any other Agent) pursuant to this Section 6(b) to the same extent as though
it or they were addressed to such Agent (if applicable) and dated the date of
such letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same tenor as
the opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.
In rendering such opinion, such counsel may state that they have
assumed that the Indenture has been duly authorized, executed and delivered by
the Trustee, that any Securities then being delivered conform to the forms
thereof examined by them, that the Trustee's certificates of authentication of
any Securities then being delivered have been manually signed by one of the
Trustee's authorized signatories and that the signatures on all documents
examined by them are genuine (assumptions they have not independently verified);
and that a judgment for money in an action based upon a Security denominated in
a foreign currency may not be enforced in such currency. In addition, such
counsel may state that they have examined such corporate records, certificates
and other documents, and such questions of law, as they have considered
necessary or appropriate for the purposes of such opinion. Furthermore, in any
opinion to be delivered otherwise than at a Time of Delivery, such counsel may
also state that they have assumed that, after their opinion is delivered, the
authorization of the Securities will not be modified or rescinded; there will
not be any change in law affecting the validity, legally binding character or
enforceability of the Securities or any other matters covered by such opinion;
the issue, sale, delivery and performance of the Securities by the Company will
comply with applicable law and with each requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company and will not
result in any breach or violation of, or any default under or conflict with, any
agreement or instrument binding on the Company; and the Securities will not
include any alternative or additional terms that are not specified in the forms
of Securities examined by them.
In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may also rely
(A) as to matters involving the application of laws other than the laws of the
United States and the State of New York, to the extent it deems it proper and to
the extent specified in such opinion, upon the opinion of the Secretary and
General Counsel of the Company, or any Assistant Secretary of the Company, as
the case may be, as to matters of Virginia law and (B) as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and certificates or other written statements of public officials.
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, or other counsel
for the Company satisfactory to such Agent, shall have furnished to such Agent
such counsel's written opinions and letters, dated the Commencement Date and
each applicable date
-17-
referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority to
execute and deliver this Agreement, the Terms Agreement and the
Indenture, and to issue and sell the Securities as herein and
therein contemplated;
(ii) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(iii) [Use the following if the opinion is being delivered
at any Time of Delivery] The Indenture has been duly authorized,
executed and delivered by the Company; the Securities being
delivered at such Time of Delivery have been duly authorized,
executed, authenticated, issued and delivered by the Company; and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) the Indenture and such Securities
constitute valid and legally binding obligations of the Company
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
the Indenture and such Securities conform in all material respects
to the description thereof contained in the Prospectus as amended
or supplemented; and the Indenture has been duly qualified under
the Trust Indenture Act;
(iv) [Use the following if the opinion is not being
delivered at a Time of Delivery] The Indenture has been duly
authorized, executed and delivered by the Company and (assuming
the Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a valid and legally binding obligation of
the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
the Securities have been duly authorized and established in
conformity with the Indenture and, when the terms of a particular
Security and of its issuance and sale have been duly authorized
and established by all necessary corporate action in conformity
with the Indenture, and such Security has been duly prepared,
executed, authenticated and issued in accordance with the
Indenture and delivered against payment in accordance with this
Agreement, such Security will constitute a valid and legally
binding obligation of the Company enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture
-18-
conforms in all material respects to the description thereof in the
Prospectus as amended or supplemented and has been duly qualified under
the Trust Indenture Act;
(v) the Registration Statement has become effective under the
Act and, to such counsel's knowledge, no stop order proceedings with
respect thereto are pending or threatened under the Act;
(vi) any regulatory consents, authorizations, approvals and
filings required to be made on the part of the Company in connection
with the issuance and sale of the Securities as contemplated hereby
under the federal laws of the United States and the laws of the State
of New York other than registration of the Securities under the Act and
qualification of the Indenture under the Trust Indenture Act (except
such counsel need express no opinion as to any necessary qualification
under the state securities or blue sky laws), have been obtained or
made.
(vii) that such counsel's opinion is as set forth under the
caption "United States Taxation" in the Prospectus.
In rendering such opinion, such counsel may state that they have
assumed that the Indenture has been duly authorized, executed and delivered by
the Trustee; that any Securities then being delivered conform to the forms
thereof examined by them; that the Trustee's certificates of authentication of
any Securities then being delivered have been manually signed by one of the
Trustee's authorized signatories and that the signatures on all documents
examined by them are genuine (assumptions they have not independently verified);
and that a judgment for money in an action based upon a Security denominated in
a foreign currency may not be enforced in such currency. In addition, such
counsel may state that they have examined such corporate records, certificates
and other documents, and such questions of law, as they have considered
necessary or appropriate for the purposes of such opinion. Furthermore, in any
opinion to be delivered otherwise than at a Time of Delivery, such counsel may
also state that they have assumed that, after their opinion is delivered, the
authorization of the Securities will not be modified or rescinded; there will
not be any change in law affecting the validity, legally binding character or
enforceability of the Securities or any other matters covered by such opinion;
the issue, sale, delivery and performance of the Securities by the Company will
comply with applicable law and with each requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company and will not
result in any breach or violation of, or any default under or conflict with, any
agreement or instrument binding on the Company; and the Securities will not
include any alternative or additional terms that are not specified in the forms
of Securities examined by them and that would require any consent, approval,
authorization, order, registration or qualification of the kind described in
paragraph (vi) above to be obtained or made.
In addition, such counsel may state that they have participated in
conferences with
-19-
officers and other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of the Agents
at which the contents of the Registration Statement and Prospectus were
discussed and, although such counsel has not undertaken to investigate or verify
independently and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus or documents incorporated by reference therein, each
part of the Registration Statement, when such part became effective, and the
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, appeared on their face to be appropriately responsive, in
all material respects relevant to the offering of the Securities, to the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder; further, nothing has come to the attention of such
counsel that causes them to believe that, insofar as relevant to the offering of
the Securities, the Registration Statement or any amendment thereto at the time
such Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus or any supplement thereto at the date of such Prospectus or
such supplement contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. In connection with the foregoing paragraph, such counsel may
state that (A) the limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus except for those made under the captions "Description
of Debt Securities We May Offer" and "United States Taxation" insofar as they
relate to provisions of documents therein described; (B) they do not express any
opinion or belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus, or as to the
statement of the eligibility of the Trustee under the Indenture under which the
Securities are being issued; and (C) their opinion and statements in this
paragraph are furnished to the representatives of the Agents solely for the
benefit of the Agents. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may
rely (A) as to matters involving the application of laws other than the laws of
the United States and the State of New York, to the extent it deems it proper
and to the extent specified in such opinion, upon the opinion of the Secretary
and General Counsel of the Company, or the Assistant Secretary of the Company,
as the case may be, as to matters of Virginia law and (B) as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and certificates or other written statements of public officials.
The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall state that the Agents are justified
in relying on the opinion of the Secretary and General Counsel of the Company or
any Assistant Secretary of the Company, as the case may be.
(d) The Secretary and General Counsel of the Company, or any Assistant
Secretary of the Company, shall have furnished to the Agent such counsel's
written
-20-
opinions, dated the Commencement Date and each applicable date referred to in
Section 4(i) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in form and substance satisfactory to such Agent,
to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with full corporate power and authority to
own its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement, the Terms Agreement and the Indenture and to issue and sell
the Securities as herein and therein contemplated;
(ii) each of the Principal Domestic Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation with
full corporate power and authority to own its respective properties and
to conduct its respective business;
(iii) the Company and its Principal Domestic Subsidiaries are duly
qualified or licensed by each jurisdiction in which they conduct their
respective businesses and in which the failure, individually or in the
aggregate, to be so licensed or qualified would have a material adverse
effect on the operations, business or financial condition of the
Company and its subsidiaries taken as a whole, and the Company and its
Principal Domestic Subsidiaries are duly qualified, and are in good
standing, in each jurisdiction in which they own or lease real property
or maintain an office in which the failure to do so, individually or in
the aggregate, would have a material adverse effect on the operations,
business or financial condition of the Company and its Subsidiaries,
taken as a whole;
(iv) [use the following if the opinion is being delivered at any
Time of Delivery] the Indenture has been duly authorized, executed and
delivered by all necessary corporate action on the part of the Company;
the Securities being delivered at such Time of Delivery have been duly
authorized, executed, authenticated, issued and delivered by the
Company and (assuming the Indenture has been duly authorized, executed
and delivered by the Trustee) the Indenture and such Securities
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Indenture, and such Securities conform in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented; and the Indenture has been duly qualified
under the Trust Indenture Act;
(v) [use the following if the Opinion is not being delivered at a
Time of Delivery] the Indenture has been duly authorized by all
necessary corporate action
-21-
on the part of the Company, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Securities have been duly authorized and established in
conformity with the Indenture and, when the terms of a particular
Security and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture, and such Security has been duly prepared, executed,
authenticated and issued in accordance with the Indenture and delivered
against payment in accordance with this Agreement, such Security will
constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms in
all material respects to the description thereof in the Prospectus as
amended or supplemented and has been duly qualified under the Trust
Indenture Act;
(vi) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(vii) no regulatory consents, authorizations, approvals and
filings are required to be obtained or made by the Company on or prior
to a Time of Delivery under the laws of the Commonwealth of Virginia
for the issuance, sale and delivery of the Securities by the Company to
or through the Agents;
(viii) the execution, delivery and performance of this Agreement,
the Terms Agreement and the Indenture by the Company and the issuance
of the Securities and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not
conflict with, or result in any breach of, or constitute a default
under (nor constitute any event that with notice, lapse of time, or
both, would constitute a breach of or default under), (i) any
provisions of the charter or by-laws of the Company or, to such
counsel's knowledge, any of its Principal Domestic Subsidiaries, (ii)
any agreement to which the Company or any of its subsidiaries is a
party which has been filed by the Company with the Commission, (iii)
the material long-term debt agreements to which the Company or any of
its Material Subsidiaries is a party or (iv) any law, regulation or
rule or any decree, judgment or order applicable to the Company or, to
such counsel's knowledge, any of its Principal Domestic Subsidiaries in
which such conflict, breach or default, individually or in the
aggregate, would have a material adverse effect on the operations,
business or financial condition of the Company and its subsidiaries,
taken as a whole;
-22-
(ix) to such counsel's knowledge, neither the Company nor any of
its Principal Domestic Subsidiaries is in breach of, or in default
under (nor has any event occurred that, with notice, lapse of time, or
both, would constitute a breach of, or default under), any license,
indenture, mortgage, deed of trust, bank loan or any other agreement or
instrument to which the Company or any of its Principal Domestic
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected by or under any law, regulation or
rule or any decree, judgment or order applicable to the Company or any
of its Principal Domestic Subsidiaries in which such breach or default,
individually or in the aggregate, would have a material adverse effect
on the operations, business or financial condition of the Company and
its subsidiaries, taken as a whole;
(x) to such counsel's knowledge, there are no actions, suits or
proceedings pending or threatened against the Company or any of its
subsidiaries or any of their respective properties, at law or in equity
or before or by any commission, board, body, authority or agency that
are required to be described in the Prospectus but are not so
described; and
(xi) to such counsel's knowledge, there are no contracts, licenses,
agreements, leases or documents that are required to be filed as
exhibits to the Registration Statement or to be summarized or described
in the Prospectus that have not been so filed, summarized or described.
In rendering such opinion, such counsel may state that he has assumed
that the Indenture has been duly authorized, executed and delivered by the
Trustee; that any Securities then being delivered conform to the forms thereof
examined by him (or members of the Company's legal department acting under his
supervision); that the Trustee's certificates of authentication of any
Securities then being delivered have been manually signed by one of the
Trustee's authorized signatories and that the signatures on all documents
examined by him (or members of the Company's legal department acting under his
supervision) are genuine (assumptions that he has not independently verified);
and that a judgment for money in an action based upon a Security denominated in
a foreign currency may not be enforced in such currency. In addition, such
counsel may state that he has examined, or has caused members of the Company's
legal department to examine, such corporate records, certificates and other
documents, and such questions of law, as he has considered necessary or
appropriate for the purposes of such opinion. Furthermore, in any opinion to be
delivered otherwise than at a Time of Delivery, such counsel may also state that
he has assumed that, after his opinion is delivered, the authorization of the
Securities will not be modified or rescinded; there will not be any change in
law affecting the validity, legally binding character or enforceability of the
Securities or any other matters covered by such opinion; the issue, sale,
delivery and performance of the Securities by the Company will comply with
applicable law and with each requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company and will not result in
any breach or violation of, or any
-23-
default under or conflict with, any agreement or instrument binding on the
Company; and the Securities will not include any alternative or additional terms
that are not specified in the forms of Securities examined by him and that
either would result in any conflict, breach, violation or default of the kind
described in paragraph (viii) above or would require any consent, approval,
authorization, order, registration or qualification of the kind described in
paragraph (vii) above to be obtained or made;
In addition, such counsel may state that he is licensed to practice law
only in the Commonwealth of Virginia and that he expresses no opinion as to the
effect of the laws of any other jurisdiction other than the federal laws of the
United States of America, and may rely (A) as to matters involving the
application of laws other than the laws of the Commonwealth of Virginia or
United States law, to the extent he deems it proper and to the extent specified
in such opinion, upon the opinion or opinions of local and foreign counsel and
(B) as to matters of fact, to the extent he deems proper, on certificates of
responsible officers of the Company and certificates or other written statements
of public officials. The opinion of the Secretary and General Counsel of the
Company, or the Assistant Secretary of the Company, as the case may be, shall
state that the opinion of such local and foreign counsel is in form satisfactory
to him and, in his opinion, he and the Agents are justified in relying thereon.
(e) Not later than 10:00 a.m., New York City time, on the Commencement
Date and on each applicable date referred to in Section 4(j) hereof that is on
or prior to such Solicitation Time or Time of Delivery, as the case may be, the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date, as the case may be,
in form and substance satisfactory to such Agent, to the effect set forth in
Annex IV hereto;
(f) Between the time of execution of this Agreement and the Time of
Delivery, (i) no material and unfavorable change, financial or otherwise (other
than as referred to in the Registration Statement and Prospectus), in the
business, financial condition or business prospects of the Company and its
subsidiaries taken as a whole shall occur or become known and (ii) no
transaction which is material and unfavorable to the Company and its
subsidiaries taken as a whole shall have been entered into by, or approved by
the Board of Directors of, the Company or any of its subsidiaries.
(g) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
-24-
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities in New
York declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iv) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation of offers
to purchase Securities or the purchase of the Securities from the Company as
principal pursuant to the applicable Terms Agreement or otherwise, as the case
may be, on the terms and in the manner contemplated in the Prospectus;
(i) (i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a suspension or
material limitation in foreign exchange trading in such currency, currencies or
composite currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of hostilities
involving, the occurrence of any material adverse change in the existing
financial, political or economic conditions of, or the declaration of war or a
national emergency by, the country or countries issuing such currency,
currencies or composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries issuing such
currency, currencies or composite currency; and (ii) with respect to any
Security linked to the capital stock of an issuer other than the Company,
additional conditions comparable to those set forth in Sections 6(f), 6(g) and
6(h) shall have been satisfied with respect to such issuer (with such additional
conditions being identical to those in Sections 6(f), (g) and (h), except that,
for this purpose, all references to the Company in such sections shall be deemed
to mean such other issuer and, if the principal trading market for such other
issuer's capital stock is not the New York Stock Exchange, the reference to the
New York Stock Exchange in Section 6(h)(i) shall be deemed to mean either the
New York Stock Exchange or such principal trading market and in Section 6(h)(ii)
shall be deemed to mean only such principal trading market), it being understood
that nothing in this clause (ii) shall limit or otherwise affect conditions in
Sections 6(f), (g) and (h), which shall apply in addition to any conditions
applicable pursuant to this clause (ii); and
(j) The Company shall have furnished or caused to be furnished to such
Agent certificates of one of its executive officers dated the Commencement Date
and each applicable date referred to in Section 4(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such form
and executed by such officers of the Company as shall be satisfactory to such
Agent, as to the accuracy of the representations and warranties of the Company
herein at and as of the Commencement
-25-
Date or such applicable date, as the case may be (and in the case of any
certificates provided on a Time of Delivery, also at and as of the applicable
Time of Sale), as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters set forth in subsections
(a) and (f) of this Section 6, and as to such other matters as such Agent may
reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent 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 any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
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 in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent 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 in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
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 in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
-26-
(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 it from any liability that it may have to any 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
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, 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 indemnifying 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 expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought under
this Section 7 (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities
-27-
(before deducting expenses) received by the Company bear to the total
commissions or discounts received by such Agent from the Company in respect
thereof. 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 required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by any Agent
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
all Agents were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in 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 such action
or claim. Notwithstanding the provisions of this subsection (d), an Agent shall
not be required to contribute any amount in excess of the amount by which the
total public offering price at which the Securities purchased by or through it
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to contribute are
several in proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof) relates and
are not joint.
(d) The obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act; and the obligations of each Agent under this Section 7 shall be in addition
to any liability that such Agent may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the
-28-
Company in the event such purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be entitled in connection
with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. (a) The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or terminated
at any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (ii) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(iii) in any event, this Agreement shall remain in full force and effect insofar
as the fourth paragraph of Section 2(a) and Sections 4(d), 5, 7, 8, 9 and 15
hereof are concerned for so long as the Securities sold by such party remain
outstanding.
(b) The Company, in its sole discretion, may appoint one or more
additional parties to act as Agents hereunder from time to time. Any such
appointment shall be made in a writing signed by the Company and the party so
appointed. Such appointment shall become effective in accordance with its terms
after the execution and delivery of such writing by the Company and such other
party. When such appointment is effective, such other party shall be deemed to
be one of the Agents referred to in, and to have the rights and obligations of
an Agent under, this Agreement, subject to the terms and conditions of such
appointment. The Company shall deliver a copy of such appointment to each other
Agent promptly after it becomes effective.
11. The following terms shall apply to any Terms Agreement if provided
for therein:
(a) If any Agent shall default in its obligation to purchase the
Securities which it has agreed to purchase pursuant to such Terms Agreement, the
non-defaulting Agents named in such Term Agreement may in their discretion
arrange for the non-defaulting
-29-
Agents or another party or other parties to purchase such Securities on the
terms provided by such Term Agreement. If within thirty-six hours after such
default by any Agent the non-defaulting Agents do not arrange for the purchase
of such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the non-defaulting Agents to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, the
non-defaulting Agents notify the Company that they have so arranged for the
purchase of such Securities, or the Company notifies the non-defaulting Agents
that it has so arranged for the purchase of such Securities, the non-defaulting
Agents or the Company shall have the right to postpone the Time of Delivery for
a period of not more than five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus
which in the Agents' opinion may thereby be made necessary. The term "Agent" as
used with respect to such Terms Agreement shall include any person substituted
under this Section 11 (if applicable) with like effect as if such person had
originally been a party to such Terms Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Agent or Agents by the non-defaulting Agents and the
Company as provided in subsection (a) above, the aggregate principal amount of
such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities covered by such Terms
Agreement, then the Company shall have the right to require each non-defaulting
Agent to purchase the principal amount of Securities that such Agent agreed to
purchase pursuant to such Terms Agreement and, in addition, to require each
non-defaulting Agent to purchase its pro rata share (based on the principal
amount of Securities that such Agent agreed to purchase pursuant to such Terms
Agreement) of the Securities of such defaulting Agent or Agents for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Agent from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Agent or Agents by the non-defaulting Agents and the
Company as provided in subsection (a) above, the aggregate principal amount of
Securities pursuant to such Terms Agreement which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities under such
Terms Agreement, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Agents to purchase Securities of
a defaulting Agent or Agents, then such Terms Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Agent or the
Company, except for the expenses to be borne by the Company and the Agents as
provided in Section 5 hereof and the indemnity and contribution agreement in
Section 7 hereof; but nothing herein shall relieve a defaulting Agent from
liability for its default.
-30-
12. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to the Agents, shall be sufficient in all respects when delivered or sent
by facsimile transmission, personal delivery or registered mail to Wachovia
Capital Markets, LLC, One First Union Center, ▇▇-▇▇, ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Capital Markets; if to any Agent other than Wachovia Capital Markets, LLC, shall
be sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to the facsimile number or address provided by such Agent to
the Company in the document appointing such Agent as an Agent under this
Agreement; and if to the Company, shall be sufficient in all respects when
delivered or sent by facsimile transmission, personal delivery or registered
mail to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. (804)
254-3594, Attention: Secretary and General Counsel. Any such statements,
requests, notices or advices shall take effect upon receipt thereof.
13. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Company and, to the extent provided
in Sections 7, 8 and 9 hereof, the officers and directors of the Company and any
person who controls any Agent or the Company, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence in this Agreement and any Terms Agreement.
15. This Agreement and any Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
16. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
-31-
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, whereupon this letter and the acceptance
by you thereof shall constitute a binding agreement between the Company and you
in accordance with its terms.
Very truly yours,
Universal Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
Accepted in New York, New York, as of the date hereof:
Wachovia Capital Markets, LLC
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
ABN AMRO Incorporated
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Deutsche Bank Securities Inc.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: M. Director
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: M. Director
Scotia Capital (USA) Inc.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SunTrust Capital Markets, Inc.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
UBS Securities LLC.
BY: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
SCHEDULE A
Material Subsidiary Organized Under Law of
------------------- ----------------------
Universal Leaf Tobacco Company, Incorporated Virginia
Blending Services International, Inc. Virginia
Universal Leaf Tabacos Ltda. Brazil
Deli Universal, Inc. Virginia
N.V. Deli Universal. Netherlands
Jongeneel Holding B.V. Netherlands
Ultoco S.A. Switzerland
Universal Leaf North America U.S., Inc. North Carolina
Principal Domestic Subsidiary Organized Under Law of
----------------------------- ----------------------
Universal Leaf Tobacco Company, Incorporated Virginia
Blending Services International, Inc. Virginia
Deli Universal, Inc. Virginia
Universal Leaf North America U.S., Inc. North Carolina
S-1
ANNEX I
Universal Corporation
$400,000,000
Medium-Term Notes, Series C
Terms Agreement
[Agents]
Ladies and Gentlemen:
Universal Corporation (the "Company") proposes, subject to the terms and
conditions stated herein and in the Distribution Agreement, dated October 1,
2003 (the "Distribution Agreement"), between the Company on the one hand and
Wachovia Capital Markets, LLC, ABN AMRO Incorporated, Deutsche Bank Securities
Inc., Scotia Capital (USA) Inc., SunTrust Capital Markets, Inc. and UBS
Securities LLC, and any other party acting as Agent thereunder on the other, to
issue and sell to you the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you
AI-1
and you agree to purchase from the Company the Purchased Securities, at the time
and place, in the principal amount and at the purchase price set forth in the
Schedule hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Very truly yours,
Universal Corporation
By: ______________________
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
________________________________
[Agent]
[Name(s) of other purchasers]
By: ____________________________
Name:
Title:
AI-2
Schedule to Annex I
Title of Purchased Securities:
Medium-Term Notes, Series C
Aggregate Principal Amount:
[$ _________ or units of other Specified Currency]
[Price to Public:]
Purchase Price by [Agent] [Name(s) of other purchasers]:
% of the principal amount of the Purchased Securities [, plus accrued from
_________ to _______] [and accrued amortization, if any, from ______ to _______]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Authorized Denominations:
Indenture:
Indenture, dated as of February 1, 1991, between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as
Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Form of Note:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Agents]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Agents at least
twenty-four hours prior to the Time of Delivery at the office of DTC.]
Interest Rate:
SAI-1
[ %] [Zero Coupon] [Describe applicable floating rate provisions] [indexed
security provisions]
Interest Payment Dates:
[months and dates, commencing ________, 20__]]
Redemption and Repayment:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking fund,
in whole or in part at the option of the Company, in the amount of [$ ] or
an integral multiple thereof,
[on or after [ ], [ ] at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before [ ], [ ]%, and
if] redeemed during the 12-month period beginning [ ], [ ]
Redemption
Year Price
---- -----
________ ________
________ ________
________ ________
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after [ ], [ ], at the election
of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire [$
] principal amount of Securities on [ ] in each of the years [ ] through [
] at 100% of their principal amount plus accrued interest[, together with
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$ ] principal amount
SAI-2
of Securities in the years [ ] through [ ] at 100% of their principal
amount plus accrued interest.]
[If Securities are extendable debt securities, insert--
Extendable provisions:
Securities are repayable on [ ], [ ] [insert date and years], at the option
of the holder, at their principal amount with accrued interest. The initial
annual interest rate will be [ ] %, and thereafter the annual interest rate
will be adjusted on [ ], [ ] and [ ] to a rate not less than [ ]% of the
effective annual interest rate on U.S. Treasury obligations with [ ]-year
maturities as of the [insert date 15 days prior to maturity date] prior to
such [insert maturity date].]
[If Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be [ ] % through [ ] [and thereafter will
be adjusted [monthly] [on each [ ], [ ], [ ] and [ ]] [to an annual rate of
[ ]% above the average rate for [ ]-year [month] [securities] [certificates
of deposit] issued by [ ] and [ ] [insert names of banks].] [and the annual
interest rate [thereafter] [from [ ] through [ ]] will be the interest
yield equivalent of the weekly average per annum market discount rate for [
]-month Treasury bills plus [ ]% of Interest Differential (the excess, if
any, of (i) the then current weekly average per annum secondary market
yield for [ ]-month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market discount
rate for [ ]-month Treasury bills); [from [ ] and thereafter the rate will
be the then current interest yield equivalent plus [ ]% of Interest
Differential].]
Defeasance provisions:
[Include provisions for Full/Covenant Defeasance, if any]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
(1) The opinions and letters of counsel to the Agents referred to in
Section 4(h).
(2) The opinions and letters of counsel to the Company referred to in
Sections 4(i) and 4(j).
(3) The accountants' letter referred to in Section 4(k).
(4) The officers' certificate referred to in Section 4(l).
Other Provisions (including Syndicate Provisions, if applicable):
[The provisions of Section 11 of the Distribution Agreement shall apply
with respect to this Term Agreement, and the Agents referred to in Section 11
shall be __________]
SAI-3
[expense reimbursement upon termination]
SAI-4
ANNEX II
PRICING SUPPLEMENT NO. [ ]
to the
Prospectus dated August 6, 2003
And the Prospectus Supplement dated ____, 2003
Universal Corporation
$400,000,000
Medium-Term Notes, Series C
The notes being purchased have the following terms;
PRINCIPAL AMOUNT:
STATED MATURITY:
SPECIFIED CURRENCY: [U.S. dollars]
- principal:
- interest:
- exchange rate agent:
- exchange rate determination date:
ORIGINAL ISSUE DATE:
PRICE TO PUBLIC %:
AUTHORIZED DENOMINATIONS:
NET PROCEEDS TO UNIVERSAL CORPORATION:
AGENTS:
ORIGINAL ISSUE DISCOUNT NOTE:
- total amount of OID:
- yield to maturity:
- initial accrual period OID:
THIS OFFERING IS SUBJECT TO REOPENING AT A LATER TIME TO OFFER ADDITIONAL
NOTES HAVING THE SAME TERMS AS THE NOTES BEING PURCHASED.
DEPOSITARY:
FORM OF NOTE:
- global registered book-entry form only:
- non-global form available:
- bearer note:
II-1
REDEMPTION AND REPAYMENT:
- redemption commencement date:
- repayment date(s):
- redemption price(s):
- redemption period(s):
FIXED RATE SECURITIES:
- annual rate:
- interest payment dates:
- regular record date:
FLOATING RATE SECURITIES:
- base rate:
- commercial paper rate:
- prime rate:
- LIBOR:
- Moneyline Telerate LIBOR page:
- Reuters screen LIBOR page:
- index currency:
- EURIBOR:
- treasury rate:
- CMT rate:
- Moneyline Telerate page 7051:
- Moneyline Telerate page 7052: (weekly/monthly):
- CMT index maturity (if not two years):
- CD rate:
- federal funds rate:
- 11th district cost of funds rate:
- initial base rate:
- index currency:
- index maturity:
- spread or spread multiplier:
- maximum rate:
- minimum rate:
- interest reset dates:
- Interest Determination Date:
- Interest Calculation Dates:
- interest payment dates:
- regular record dates
II-2
- calculation agent:
INDEXED SECURITIES
- payment at Maturity:
- payment on Interest Payment Dates:
- Formula used to calculate payment at maturity and on Interest Payment
Dates:
- Forms of payment available:
DEFEASANCE AND COVENANT DEFEASANCE:
The Company may effect defeasance or covenant defeasance with respect to
the notes only upon delivery of an opinion of counsel to the Trustee as
described in the Prospectus.
OTHER INFORMATION:
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved these securities or passed upon the adequacy or
accuracy of this Prospectus Supplement. any representation to the contrary is a
criminal offense.
Terms used and not defined herein but defined in the Prospectus Supplement
and Prospectus are used herein as therein defined.
UNIVERSAL CORPORATION
Pricing Supplement dated __________, 200_
II-3
ANNEX III
Universal Corporation
Administrative Procedure
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated October 1, 2003 (the "Distribution Agreement"),
between Universal Corporation, a Virginia corporation (the "Company") on the one
hand and any party acting as Agent thereunder, on the other, to which this
Administrative Procedure is attached as Annex III. Capitalized terms used herein
and not defined herein shall have the meanings given such terms in the
Distribution Agreement, the Prospectus as amended or supplemented, the Indenture
or the Securities. To the extent the procedures set forth below conflict with
the provisions of the Securities, the Indenture or the Distribution Agreement,
the relevant provisions of the Securities, the Indenture and the Distribution
Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent."
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary"), and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security"), or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
III-1
PART I: ADMINISTRATIVE PROCEDURE FOR
BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, JPMorgan
Chase Bank ("Chase") will perform the custodial, document control and
administrative functions described below, including Calculation Agent functions,
in accordance with its respective obligations under a Letter of Representations
from the Company and Chase to the Depositary, dated the date of the Distribution
Agreement, and a Medium-Term Note Certificate Agreement between Chase and the
Depositary, dated as of December 2, 1988 (the "Certificate Agreement"), and its
obligations as a participant in the Depositary, including the Depositary's
Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and Chase.
III-2
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and initial interest
payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable Exchange Rate for such Specified Currency (it being
understood that currently the Depositary accepts deposits of Global Securities
denominated in U.S. dollars only);
(7) The Exchange Rate Agent and the Exchange Rate Determination Date, if
applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the case may
be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption Commencement Date,
(iv) Repayment date, and
(v) Repayment price;
III-3
(12) If an Original Issue Discount Book-Entry Security, the total amount of
Original Issue Discount, the yield to Maturity and the initial accrual period of
Original Issue Discount;
(13) If a Floating Rate Book-Entry Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(14) Denomination of certificates to be delivered at settlement;
(15) That the Security is a Book-Entry Security;
(16) Selling Agent or Purchasing Agent;
(17) Any other information necessary to complete the Book-Entry Security.
B. After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information
together with the CUSIP number assigned by it to the Book-Entry Security, to
Chase by facsimile transmission or other acceptable written means. The Company
will also advise the Selling Agent or Purchasing Agent, as the case may be, of
the CUSIP number assigned by it to the Book-Entry Security. The Company will
assign the CUSIP number from a list of CUSIP numbers previously obtained by the
Company for the Securities.
▇. ▇▇▇▇▇ will enter a pending deposit message through the Depositary's
III-4
Participant Terminal System, providing the following settlement information to
the Depositary, and the Depositary shall forward such information to such Agent
and Standard & Poor's Ratings Group (or such other entity that assigns CUSIP
numbers or any other identification designations being used for the relevant
Securities):
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry Security;
(3) Whether such Global Security will represent any other Book-Entry Security
(to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on behalf of
the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number of days
by which such date succeeds the record date for the Depositary's purposes (which
in the case of Floating Rate Securities that reset daily or weekly shall be the
date five calendar days immediately preceding the applicable Interest Payment
Date and in the case of all other Book-Entry Securities shall be the Regular
Record Date, as defined in the Security) and, if calculable at that time, the
amount of interest payable on such Interest Payment Date.
▇. ▇▇▇▇▇ will complete and the Trustee will authenticate the Global
Security previously delivered by the Company representing such Book-Entry
Security.
E. The Depositary will credit such Book-Entry Security to Chase's
participant account at the Depositary.
▇. ▇▇▇▇▇ will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to Chase's participant account and credit such Book-Entry
Security to such Agent's participant account and (ii) debit such Agent's
settlement account and credit Chase's settlement account for an amount equal to
the price of such Book-Entry Security less such Agent's commission or discount,
as the case may be. The entry of such a deliver order shall constitute a
representation and warranty by Chase to the Depositary that (a) the Global
Security representing such Book-Entry Security has been issued and authenticated
and (b) Chase is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii)
III-5
to debit the settlement accounts of such participants and credit the settlement
account of such Agent for an amount equal to the price of such Book-Entry
Security less such Agent's commission or discount, as the case may be.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, Chase will transfer to the
account of the Company maintained at SunTrust Bank, Richmond, Virginia, or such
other account as the Company may have previously specified to Chase, in funds
available for immediate use in the amount transferred to Chase in accordance
with Settlement Procedure "F."
J. Upon request, Chase will send to the Company a statement setting forth
the principal amount of Book-Entry Securities outstanding as of that date under
the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or Chase,
promptly furnish to the Company or Chase a list of the names and addresses of
the participants for whom the Depositary has credited Book-Entry Securities.
III-6
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies (or such greater number of copies as such Agent
shall reasonably request) of such Pricing Supplement, not later than 5:00 p.m.,
New York City time, on the business day following the Trade Date (as defined
below), or if the Company and the purchaser agree to settlement on the business
day following the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to have the Pricing
Supplement filed with the Commission not later than the close of business of the
Commission on the fifth business day following the date on which such Pricing
Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third business day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another business day which shall be no earlier
than the next business day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third business day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
III-7
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 Trade Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If a sale is to be settled more than one business day after the Trade
Date, Settlement Procedures "A," "B" and "C" shall be completed as soon as
practicable, but no later than 11:00 a.m., 12 noon and 2:00 p.m., respectively,
on the first business day after the Trade Date.
Settlement Procedure "H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled,
Chase, upon obtaining knowledge thereof, will deliver to the Depositary, through
the Depositary's Participation Terminal System, a cancellation message to such
effect by no later than 2:00 p.m. on the business day immediately preceding the
scheduled Settlement Date.
Failure to Settle:
If Chase fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F," Chase may deliver to
the Depositary, through the Depositary's Participant Terminal System, as soon as
practicable a withdrawal message instructing the Depositary to debit such
Book-Entry Security to Chase participant account, provided that Chase's
participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, Chase will ▇▇▇▇ such
Global Security "canceled," make appropriate entries in Chase's records and send
such canceled Global Security to the Company. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a withdrawal message is processed
with respect to one or
III-8
more, but not all, of the Book-Entry Securities represented by a Global
Security, Chase will exchange such Global Security for two Global Securities,
one of which shall represent such Book-Entry Security or Securities and shall be
canceled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to Chase's
participant account and shall notify the Company and Chase thereof. Thereafter,
Chase will (i) immediately notify the Company of such order and the Company
shall transfer to such Agent funds available for immediate use in an amount
equal to the price of such Book-Entry Security which was credited to the account
of the Company maintained at Chase in accordance with Settlement Procedure I,
and (ii) deliver the withdrawal message and take the related actions described
in the preceding paragraph. If such failure shall have occurred for any reason
other than default by the applicable Agent to perform its obligations hereunder
or under the Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, Chase will provide, in accordance
with Settlement Procedure "D," for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish Chase with a sufficient quantity of
Securities.
III-9
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and Chase.
III-10
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency;
(7) The Exchange Rate Agent and the Exchange Rate Determination Date,
if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, such of the
following as are applicable:
(a) Redemption Commencement Date,
(b) Initial Redemption Price (% of par),
(c) Amount (% of par) that the Redemption Price shall decline (but not
below par) on each anniversary of the Redemption Commencement Date,
(d) Repayment date, and
(e) Repayment price;
III-11
(12) If an Original Issue Discount Certificated Security, the total
amount of Original Issue Discount, the yield to Maturity and the initial accrual
period of Original Issue Discount;
(13) If a Floating Rate Certificated Security, such of the following as
are applicable:
(a) Interest Rate Basis,
(b) Index Maturity and Index Currency,
(c) Spread or Spread Multiplier,
(d) Maximum Rate,
(e) Minimum Rate,
(f) Initial Base Rate,
(g) Interest Reset Dates,
(h) Calculation Dates,
(i) Interest Determination Dates,
(j) Interest Payment Dates,
(k) Regular Record Dates, and
(l) Calculation Agent;
(14) Name, address and taxpayer identification number of the registered
owner(s);
(15) Denomination of certificates to be delivered at settlement;
(16) That the Security is a Certificated Security;
(17) Selling Agent or Purchasing Agent;
(18) Any other information necessary to complete the Certificated
Security.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten
III-12
copies (or such greater number of copies as such Agent shall reasonably request)
of such Pricing Supplement, not later than 5:00 p.m., New York City time, on the
business day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to have the Pricing
Supplement filed with the Commission not later than the close of business of the
Commission on the fifth business day following the date on which such Pricing
Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement, as applicable) in relation to such Certificated Security prior to or
together with the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company will be settled on a date
(the "Settlement Date") which is the third business day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another business day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00 a.m., New York
City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to Chase by facsimile transmission or other acceptable written
means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the business day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
III-13
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
Chase will prepare each Certificated Security and appropriate receipts
that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, Chase will, by 2:15 p.m., New York City time, on
the Settlement Date, deliver the Certificated Securities to the Selling Agent
for the benefit of the purchaser of such Certificated Securities against
delivery by the Selling Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue price
of the Certificated Securities less the Selling Agent's commission; provided
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent,
the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated Securities to the Purchasing Agent against delivery of
payment for such Certificated Securities in immediately available funds to the
Company in an amount equal to the issue price of the Certificated Securities
less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify Chase and the Company thereof by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means. The Selling Agent will
immediately return the Certificated Security to Chase. Immediately upon receipt
of such Certificated Security by Chase, the Company will return to the Selling
Agent an amount equal to the amount previously paid to the Company in respect of
such Certificated Security. The Company will reimburse the Selling Agent on an
equitable basis for its loss of the use of funds during the period when they
were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, dispose of the Certificated Security in
accordance with its customary procedures.
III-14
ANNEX IV
Accountants' Letter
Pursuant to Sections 4(j) and 6(e), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) audited or examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the Agents;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company's Quarterly Report(s) on
Form 10-Q covering periods after the latest full fiscal year and
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been furnished to the Agents; and
on the basis of specified procedures including inquiries of officials
of the Company, who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and
IV-1
regulations or that any material modifications should be made to the
unaudited condensed consolidated financial statements for them to be in
conformity with generally accepted accounting principles;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and/or included or incorporated by reference in Item 6 of
the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented,
inquiries of officials of the Company and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or incorporated by reference
in the Company's Quarterly Report(s) on Form 10-Q covering periods
after the latest full fiscal year and incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus
and/or included in the Company's Quarterly Report(s) on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
IV-2
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data
and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus as
most recently amended or supplemented and referred to in clause (B)
were not determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Agents, or any increases in any items
specified by the Agents, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the
specified date referred to in clause (E) there were any decreases in
consolidated total revenues or consolidated revenues, net of interest
expense, pre-tax
IV-3
earnings or total or per share amounts of consolidated net income
or other items specified by the Agents, or any increases in any
items specified by the Agents, in each case as compared with the
comparable items in the comparable period of the preceding year
and with any other period of corresponding length specified by
the Agents, except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
which are derived from the general accounting records of the Company
and its subsidiaries which appear in the Prospectus (including
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Agents,
and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex IV to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(e) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement or incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
IV-4
EXHIBIT 1
[Form of Fixed Rate Medium-Term Note]
(Face of Security)
[IF A BOOK-ENTRY SECURITY, INSERT - THIS SECURITY IS A BOOK-ENTRY
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A U.S. DEPOSITORY OR A NOMINEE OF A U.S. DEPOSITORY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE U.S. DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE U.S. DEPOSITORY TO A NOMINEE OF THE
U.S. DEPOSITORY OR BY A NOMINEE OF THE U.S. DEPOSITORY TO THE U.S. DEPOSITORY OR
ANOTHER NOMINEE OF THE U.S. DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]
[IF DTC IS THE DEPOSITARY, INSERT - UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO UNIVERSAL CORPORATION OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
No. R-1 CUSIP No. _______
UNIVERSAL CORPORATION
MEDIUM-TERM NOTES, SERIES C
(Fixed Rate)
The following terms apply to this Security, as and to the extent shown
below:
PRINCIPAL AMOUNT: ORIGINAL ISSUE DISCOUNT
SECURITY:
STATED MATURITY DATE: . Total Amount of OID: [N/A]
. Yield to Maturity: [N/A]
. Initial Accrual Period OID: [N/A]
SPECIFIED CURRENCY: U.S. dollars REDEMPTION COMMENCEMENT
for all payments unless otherwise DATE:[N/A]
specified below:
. Payments of principal and any REPAYMENT DATE(S): [N/A]
premium: [U.S. dollars]
REDEMPTION OR REPAYMENT
. Payments of interest: PRICE(S): [N/A]
[U.S. dollars]
. Exchange Rate Agent: [N/A] DEFEASANCE:
INTEREST RATE: ___% per annum . Full Defeasance: At Company's
option
INTEREST PAYMENT DATES(S): . Covenant Defeasance: At Company's
option
ORIGINAL ISSUE DATE*:
OTHER TERMS: In its sole discretion,
PLACE OF PAYMENT: [Corporate Trust the Company may at a later date issue
Office of the [Trustee] Paying Agent] additional debt securities having the
in [The City of New York]] same terms as this Security.
Terms left blank or marked "N/A", "No", "None" or in a similar
manner do not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply
to this Security have the meanings specified above, unless the context requires
otherwise. Other terms used in this Security that are not defined herein but
that are defined in the Indenture referred to in Section 1 on the reverse of
this Security are used herein as defined therein.
__________________
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date of the
first Predecessor Security.
(Face of Security continued on next)
-2-
Universal Corporation, a corporation duly organized and existing under
the laws of the Commonwealth of Virginia (hereinafter called the "Company",
which term includes any successor Person under the Indenture), for value
received, hereby promises to pay to _____________, or registered assigns, as
principal the Principal Amount on the Stated Maturity Date and to pay interest
thereon, from the Original Issue Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, on the Interest
Payment Date(s) in each year, commencing on the first such date that is at least
15 calendar days after the Original Issue Date, and at the Maturity of the
principal hereof, at the rate per annum equal to the Interest Rate specified on
the face hereof, until the principal hereof is paid or made available for
payment. Any premium and any such installment of interest that is overdue at any
time shall also bear interest, at the rate per annum at which the principal then
bears interest (to the extent that the payment of such interest shall be legally
enforceable), from the date any such overdue amount first becomes due until it
is paid or made available for payment. Notwithstanding the foregoing, interest
on any principal, premium or installment of interest that is overdue shall be
payable on demand.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the 15th calendar day (whether or not a
Business Day, as such term is defined in Section 3 on the reverse hereof) next
preceding such Interest Payment Date (a "Regular Record Date"). Any interest so
payable, but not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") will forthwith cease to be payable to
the Holder on such Regular Record Date and such Defaulted Interest either may be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Security not less than 10 days
prior to such Special Record Date, or may be paid in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Manner of Payment - Global Securities
Notwithstanding any provision of this Security or the Indenture, if this
Security is a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 204 of the Indenture (or such
legend as may be specified as contemplated by Section 301 for such Securities)
(a "Global Security"), the Company may make any and all payments of principal,
premium and interest on this Security pursuant to any policies and procedures of
the U.S. Depository (hereinafter, the "Depositary") that is selected by the
Company for this Security.
Manner of Payment - Non-Global Securities - U.S. Dollars
Except as provided in the next paragraph, payment of interest that is due
on an Interest Payment Date payable on this Security in U.S. dollars will be
made by check mailed to the address of the Person shown on the Trustees' records
as of the close of business on the Regular Record Date. All other payments will
be made by check against surrender of this Security to
(Face of Security continued on next)
-3-
JPMorgan Chase Bank, as Paying Agent, or to any other person or financial
institution from time to time designated by the Company as Paying Agent.
If (i) the principal of this Security is at least $1,000,000, and (ii)
the Holder entitled to receive such payment transmits a written request for such
payment to be made in the following manner to the Trustee at its Corporate Trust
Office, Attention: Institutional Trust Services, and (iii) transmits wire
transfer instructions to the Paying Agent on or before the fifth Business Day
before the day on which such payment is to be made, the Company will pay any
amount that becomes due on this Security by wire transfer of immediately
available funds to an account at a bank in New York city, on the due date;
provided that, in the case of any such payment due at the Maturity of the
principal hereof (other than any payment of interest that first becomes due on
an Interest Payment Date), this Security must be first surrendered to the Paying
Agent. Any such request made with respect to any payment on this Security
payable to a particular Holder will remain in effect for all later payments on
this Security payable to such Holder, unless such request is revoked on or
before the fifth Business Day before a payment is to be made, in which case such
revocation shall be effective for such payment and all later payments. In the
case of any payment of interest payable on an Interest Payment Date, such
written request and instructions must be made by the Person who is the
registered Holder of this Security on the relevant Regular Record Date. The
Company will pay any administrative costs imposed by banks in connection with
making payments by wire transfer with respect to this Security, but any tax,
assessment or other governmental charge imposed upon any payment will be borne
by the Holder of this Security and may be deducted from the payment by the
Company or the Paying Agent.
Manner of Payment - Non-Global Securities - Other Specified Currencies
Payment of any amount payable on this Security in a Specified Currency
other than U.S. dollars will be made by wire transfer of immediately available
funds to such account as is maintained in such Specified Currency at a bank or
other financial institution acceptable to the Company and the Trustee and as
shall have been designated at least five Business Days prior to the applicable
payment date by the Person entitled to receive such payment; provided that, in
the case of any such payment due at the Maturity of the principal hereof (other
than any payment of interest that first becomes due on an Interest Payment
Date), this Security must be surrendered to the Paying Agent who will make such
payment in such funds in accordance with its normal procedures. Such account
designation shall be made by transmitting the appropriate information to the
Paying Agent by mail, hand delivery, telecopier or in any other manner approved
by the Paying Agent. Unless revoked, any such account designation made with
respect to this Security by the Holder hereof will remain in effect with respect
to any further payments with respect to this Security payable to such Holder. If
a payment in a Specified Currency other than U.S. dollars with respect to this
Security cannot be made by wire transfer because the required account
designation has not been received by the Paying Agent on or before the requisite
date or for any other reason, the Company will cause a notice to be given to the
Holder of this Security at its registered address requesting an account
designation pursuant to which such wire transfer can be made and such payment
will be made within five Business Days after the Paying Agent's receipt of such
a designation meeting the requirements specified above, with the same force and
effect as if made on the due date. The Company will pay any administrative costs
imposed by banks in connection with
(Face of Security continued on next)
-4-
making payments by wire transfer with respect to this Security, but any tax,
assessment or other governmental charge imposed upon any payment will be borne
by the Holder of this Security and may be deducted from the payment by the
Company or the Paying Agent.
Currency of Payment
Payment of principal of (and premium, if any) and interest on this
Security will be made in the Specified Currency for such payment, except as
provided in this and the next three paragraphs. The Specified Currency for any
payment shall be the currency specified as such on the face of this Security
unless, at the time of such payment, such currency is not legal tender for the
payment of public and private debts in the country issuing such currency, in
which case the Specified Currency for such payment shall be such coin or
currency as at the time of such payment is legal tender for the payment of
public and private debts in such country, except as provided in the next
sentence. If the euro is specified on the face of this Security as the Specified
Currency for any payment, the Specified Currency for such payment shall be such
coin or currency as at the time of payment is legal tender for the payment of
public and private debts in all EMU Countries (as defined in Section 3 on the
reverse hereof), provided that, if on any day there are not at least two EMU
Countries, or if on any day there are at least two EMU Countries but no coin or
currency is legal tender for the payment of public and private debts in all EMU
Countries, then the Specified Currency for such payment shall be deemed not to
be available to the Company on such day.
Except as provided in the next paragraph, any payment to be made on
this Security in a Specified Currency other than U.S. dollars will be made in
U.S. dollars if the Person entitled to receive such payment transmits a written
request for such payment to be made in U.S. dollars to the Trustee at its
Corporate Trust Office, Attention: Institutional Trust Services on or before the
fifth Business Day before the payment is to be made. Such written request may be
mailed, hand delivered, telecopied or delivered in any other manner approved by
the Trustee. Any such request made with respect to any payment on this Security
payable to a particular Holder will remain in effect for all later payments on
this Security payable to such Holder, unless such request is revoked on or
before the fifth Business Day before a payment is to be made, in which case such
revocation shall be effective for such and all later payments. In the case of
any payment of interest payable on an Interest Payment Date, such written
request must be made by the Person who is the registered Holder of this Security
on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the immediately
preceding paragraph will be determined by the Exchange Rate Agent specified on
the face of this Security based upon the highest bid quotation received by the
Exchange Rate Agent as of 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date, from three (or, if three are not
available, then two) recognized foreign exchange dealers selected by the
Exchange Rate Agent in The City of New York, in each case for the purchase by
the quoting dealer, for U.S. dollars and for settlement on such payment date of
an amount of the Specified Currency for such payment equal to the aggregate
amount of such Specified Currency payable on such payment date to all Holders of
Securities of this or any other series who elect to receive U.S. dollar payments
on such payment date, and at which the applicable dealer commits to execute a
contract. If the Exchange Rate Agent determines that two such bid quotations are
not available on such second
(Face of Security continued on next)
-5-
Business Day, such payment will be made in the Specified Currency for such
payment. All currency exchange costs associated with any payment in U.S. dollars
on this Security will be borne by the Holder entitled to receive such payment,
by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security
is payable on any day (including at Maturity) in a Specified Currency other than
U.S. dollars, and if such Specified Currency is not available to the Company on
the two Business Days before such day, due to the imposition of exchange
controls, disruption in a currency market or any other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligation
to pay such amount in such Specified Currency by making such payment in U.S.
dollars. The amount of such payment in U.S. dollars shall be determined by the
Exchange Rate Agent on the basis of the noon buying rate for cable transfers in
The City of New York for such Specified Currency (the "Exchange Rate") as of the
latest day before the day on which such payment is to be made. Any payment made
under such circumstances in U.S. dollars where the required payment is in other
than U.S. dollars will not constitute an Event of Default under the Indenture or
this Security.
Payments Due on a Business Day
Unless otherwise specified on the face of this Security, the following
sentence shall apply to this Security. Notwithstanding any provision of this
Security or the Indenture, if any amount of principal, premium or interest would
otherwise be due on this Security on a day (the "Specified Day") that is not a
Business Day at a Place of Payment, such amount may be paid or made available
for payment on the next succeeding Business Day at such Place of Payment with
the same force and effect as if such amount were paid on the Specified Day,
provided that no interest shall accrue on the amount so payable for the period
from and after such Specified Day. The provisions of this paragraph shall apply
to the Security in lieu of the provisions of Section 114 of the Indenture.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
(Face of Security continued on next)
-6-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
UNIVERSAL CORPORATION
By____________________________
Name:
Title:
Seal
Attest:
____________________________
Authorized Officer
This is one of the Securities of a series issued under the Indenture
described herein.
Dated:
JPMORGAN CHASE BANK, as Trustee
By_________________________________
Authorized Officer
-7-
(Reverse of Security)
1. Securities and Indenture
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of February 1, 1991 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank and as Chemical Bank), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
2. Series and Denominations
This Security is one of the series designated on the face hereof,
limited to an aggregate initial offering price not to exceed $400,000,000 (or
the equivalent thereof in any other currency or currencies or currency units),
which amount may be increased at the option of the Company if in the future it
determines that it may wish to sell additional Securities of this series.
References herein to "this series" mean the series of securities designated on
the face hereof.
The Securities of this series are issuable only in registered form
without coupons in "Authorized Denominations", which term shall have the
following meaning. For each Security of this series having a principal amount
payable in U.S. dollars, the Authorized Denominations shall be $1,000 and
integral multiples thereof. For each Security of this series having a principal
amount payable in a Specified Currency other than U.S. dollars, the Authorized
Denominations shall be the amount of such Specified Currency equivalent, at the
Exchange Rate on the first Business Day next preceding the date on which the
Company accepts the offer to purchase such Security, to $1,000, rounded to an
integral multiple of 1,000 units of such Specified Currency, or any larger
integral multiple of 1,000 units of such Specified Currency.
3. Exchange Rate Agent and Related Terms
If the principal of or interest on this Security is payable in a
Specified Currency other than U.S. dollars, the Company has initially appointed
the institution named on the face of this Security as Exchange Rate Agent to act
as such agent with respect to this Security, but the Company may, in its sole
discretion, appoint any other institution (including any Affiliate of the
Company) to serve as any such agent from time to time. The Company will give the
Trustee prompt written notice of any change in any such appointment. Insofar as
this Security provides for any such agent to obtain rates, quotes or other data
from a bank, dealer or other institution for use in making any determination
hereunder, such agent may do so from any institution or institutions of the kind
contemplated hereby notwithstanding that any one or more of such institutions
are such agent, Affiliates of such agent or Affiliates of the Company.
(Reverse of Security continued on next page)
-8-
All determinations made by the Exchange Rate Agent may be made by such
agent in its sole discretion and, absent manifest error, shall be conclusive for
all purposes and binding on the Holder of this Security and the Company. The
Exchange Rate Agent shall not have any liability therefor.
Unless otherwise specified on the face hereof, for all purposes of
this Security, the term "Business Day" means each Monday, Tuesday, Wednesday,
Thursday or Friday that (i) is not a day on which banking institutions in The
City of New York generally are authorized or obligated by law, regulation or
executive order to close, (ii) if the Specified Currency for any payment on this
Security is other than U.S. dollars or euros, is not a day on which banking
institutions in the principal financial center of the country issuing such
Specified Currency generally are authorized or obligated by law, regulation or
executive order to close, (iii) if the Specified Currency for any payment on
this Security is euros, is not a Euro Business Day, (iv) solely with respect to
any payment or other action to be made or taken at any Place of Payment outside
The City of New York, is a Monday, Tuesday, Wednesday, Thursday or Friday that
is not a day on which banking institutions in such Place of Payment generally
are authorized or obligated by law, regulation or executive order to close, (v)
if this Security is held through Euroclear, is also not a day on which banking
institutions in Brussels, Belgium are generally authorized or obligated by law,
regulation or executive order to close, and (vi) if this Security is held
through Clearstream Banking, Societe Anonyme, Luxembourg, is also not a day on
which banking institutions in Luxembourg are generally authorized or obligated
by law, regulation or executive order to close. "Euro Business Day" means any
day on which the Trans-European Automated Real-Time Gross Settlement Express
(TARGET) System, or any successor system, is open for business. With respect to
any particular location, the close of business on any day on which business is
not being conducted shall be deemed to mean 5:00 P.M., New York City time, on
that day. "Principal Financial Center" means the capital city of the country
issuing the Specified Currency in respect of which payment on this Security is
to be made, except that with respect to U.S. Dollars, Australian Dollars, and
Swiss Francs, the Principal Financial Center shall be The City of New York,
Sydney and Luxembourg, respectively.
References in this Security to U.S. dollars shall mean, as of any
time, the coin or currency that is then legal tender for the payment of public
and private debts in the United States of America.
References in this Security to the euro shall mean, as of any time,
the coin or currency (if any) that is then legal tender for the payment of
public and private debts in all EMU Countries. "EMU Countries" means, at any
time, the countries (if any) then participating in the European Economic and
Monetary Union (or any successor union) pursuant to the Treaty on European Union
of February 1992 (or any successor treaty), as it may be amended from time to
time.
References in this Security to a particular currency other than U.S.
dollars and euros shall mean, as of any time, the coin or currency that is then
legal tender for the payment of public and private debts in the country issuing
such currency on the Original Issue Date.
(Reverse of Security continued on next page)
-9-
4. Redemption at the Company's Option
Unless a Redemption Commencement Date is specified on the face hereof,
this Security shall not be redeemable at the option of the Company before the
Stated Maturity Date. If a Redemption Commencement Date is so specified, and
unless otherwise specified on the face hereof, this Security is subject to
redemption upon not less than 30 days' nor more than 60 days' notice at any time
and from time to time on or after the Redemption Commencement Date, in each case
as a whole or in part, at the election of the Company and at the applicable
Redemption Price specified on the face hereof (expressed as a percentage of the
principal amount of this Security to be redeemed), together with accrued
interest to the Redemption Date, but interest installments due on or prior to
such Redemption Date will be payable to the Holder of this Security, or one or
more Predecessor Securities, of record at the close of business on the relevant
record date, all as provided in the Indenture.
5. Repayment at the Holder's Option
Except as otherwise may be provided on the face hereof, if one or more
Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in an amount equal to any Authorized Denomination
(provided that the remaining principal amount of any Security surrendered for
partial repayment shall at least equal an Authorized Denomination), on any such
Repayment Date, in each case at the option of the Holder and at the applicable
Repayment Price specified on the face hereof (expressed as a percentage of the
principal amount to be repaid), together with accrued interest to the applicable
Repayment Date (but interest installments due on or prior to such Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Date as
provided in the Indenture). If this Security provides for more than one
Repayment Date and the Holder exercises its option to elect repayment, the
Holder shall be deemed to have elected repayment on the earliest Repayment Date
after all conditions to such exercise have been satisfied, and references herein
to the "Applicable Repayment Date" shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this
Security to be repaid, the Company must receive at the applicable address of the
Trustee set forth below (or at such other place or places of which the Company
shall from time to time notify the Holder of this Security), on any Business Day
not later than the 15th, and not earlier than the 25th, calendar day prior to
the applicable Repayment Date (or, if either such calendar day is not a Business
Day, the next succeeding Business Day), either (i) this Security, with the form
below entitled "Option to Elect Repayment" duly completed and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the Holder of this Security, (b)
the principal amount of this Security and the amount of this Security to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby and (d) a guarantee stating that the Company will receive this Security,
with the form below entitled "Option to Elect Repayment" duly completed and
signed, not later than five Business Days after the date of such telegram,
telex, facsimile transmission or
(Reverse of Security continued on next page)
-10-
letter (provided that this Security and form duly completed and signed are
received by the Company by such fifth Business Day). Any such election shall be
irrevocable. The address to which such deliveries are to be made is JPMorgan
Chase Bank at its Corporate Trust Office, Attention: Institutional Trust
Services, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or at such other
places as the Company or the Trustee shall notify the Holder of this Security).
All questions as to the validity, eligibility (including time of receipt) and
acceptance of any Security for repayment will be determined by the Company,
whose determination will be final and binding. Notwithstanding the foregoing,
(x) if this Security is a Global Security, the option of the Holder to elect
repayment may be exercised in accordance with any policies and procedures of the
Depositary for this Security at least 15 calendar days prior to the applicable
Repayment Date and (y) whether or not this Security is a Global Security, the
option of the Holder to elect repayment may be exercised in any such manner as
the Company may approve.
6. Transfer and Exchange
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of Authorized Denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different Authorized Denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes (subject to Sections 305 and 307 of the Indenture),
whether or not this Security be overdue, and neither the Company nor the Trustee
nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject
to the provisions of the Indenture relating to Global Securities, including the
limitations in Section 305 thereof on transfers and exchanges of Global
Securities.
(Reverse of Security continued on next page)
-11-
7. Defeasance
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture. If so specified on the face
hereof, either or both of such provisions are applicable to this Security, as so
specified.
8. Remedies
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
9. Modification and Waiver
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
(Reverse of Security continued on next page)
-12-
provisions (i) permitting the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at
the time Outstanding of any series to be affected under the Indenture, on behalf
of the Holders of all Securities of such series, to waive certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
10. Governing Law
This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
(Reverse of Security continued on next page)
-13-
CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
UNIVERSAL CORPORATION
MEDIUM-TERM NOTE, SERIES C
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company to
repay the Security referred to in this notice (or the portion thereof specified
below) at the applicable Repayment Price, together with interest to the
Repayment Date, all as provided for in such Security, to the undersigned, whose
name, address, telephone number and social security or other identifying number
are as follows:
_______________________________________________________________________________
(please print name of the undersigned)
_______________________________________________________________________________
(please print address of the undersigned)
_______________________________________________________________________________
(please print telephone number and social security or other identifying number
of the undersigned)
If such Security provides for more than one Repayment Date, the undersigned
requests repayment on the earliest Repayment Date after the requirements for
exercising this option have been satisfied, and references in this notice to the
Repayment Date mean such earliest Repayment Date. Terms used in this notice that
are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable
address of the Trustee set forth below or at such other place or places of which
the Company or the Trustee shall from time to time notify the Holder of such
Security, on any Business Day not later than the 15th or earlier than the 25th
calendar day prior to the Repayment Date (or, if either such calendar day is not
a Business Day, the next succeeding Business Day), (i) such Security, with this
"Option to Elect Repayment" form duly completed and signed, or (ii) a telegram,
telex, facsimile
-14-
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States of America setting forth (a) the name, address and
telephone number of the Holder of such Security, (b) the principal amount of
such Security and the amount of such Security to be repaid, (c) a statement that
the option to elect repayment is being exercised thereby and (d) a guarantee
stating that such Security to be repaid with the form entitled "Option to Elect
Repayment" on the addendum to the Security duly completed and signed will be
received by the Company not later than five Business Days after the date of such
telegram, telex, facsimile transmission or letter (provided that such Security
and form duly completed and signed are received by the Company by such fifth
Business Day). The address to which such deliveries are to be made is:
JPMorgan Chase Bank
Attention: Institutional Trust Services
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other place as the Company or the Trustee shall notify the holder of
such Security.
If less than the entire principal amount of such Security is to be repaid,
specify the portion thereof (which shall equal any Authorized Denomination) that
the Holder elects to have repaid:
_______________________________________________________________________
and specify the denomination or denominations (which shall equal any
Authorized Denomination) of the Security or Securities to be issued to the
Holder in respect of the portion of such Security not being repaid (in the
absence of any specification, one Security will be issued in respect of the
portion not being repaid):
_______________________________________________________________________
Date: _______________ _______________________________________________
Notice: The signature to this Option to Elect
Repayment must correspond with the name of the
Holder as written on the face of such Security
in every particular without alteration or
enlargement or any other change whatsoever.
-15-
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Security, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_____________________________________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_____________________________________________________________
-16-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________
/______________________/
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
________________________________________________________________________________
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints
________________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated: _________________________
Signature Guaranteed
____________________________________ ______________________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must
correspond with the name
of the Holder as
written upon the face
of the attached
Security in every
particular, without
alteration or
enlargement or any
change whatever.
-17-
EXHIBIT 2
[Form of Floating Rate Medium-Term Note]
(Face of Security)
[IF A BOOK-ENTRY SECURITY, INSERT - THIS SECURITY IS A BOOK-ENTRY SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A U.S. DEPOSITORY OR A NOMINEE OF A U.S. DEPOSITORY. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
U.S. DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE U.S. DEPOSITORY TO A NOMINEE OF THE U.S. DEPOSITORY
OR BY A NOMINEE OF THE U.S. DEPOSITORY TO THE U.S. DEPOSITORY OR ANOTHER NOMINEE
OF THE U.S. DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[IF DTC IS THE DEPOSITARY, INSERT - UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO UNIVERSAL CORPORATION OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
No. R-1 CUSIP No. _______
UNIVERSAL CORPORATION
MEDIUM-TERM NOTES, SERIES C
(Floating Rate)
The following terms apply to this Security, as and to the extent shown
below:
PRINCIPAL AMOUNT: REPAYMENT DATE(S): [N/A]
STATED MATURITY DATE: REDEMPTION OR REPAYMENT PRICE(S): [N/A]
SPECIFIED CURRENCY: U.S. dollars for all payments
unless otherwise specified below: BASE RATE:
. Commercial Paper Rate:
. Payments of principal and any premium: [U.S.
dollars]
. Prime Rate:
. Payments of interest: [U.S. dollars]
. Exchange Rate Agent: [N/A] . LIBOR:
- Moneyline Telerate LIBOR Page:
- Reuters Screen LIBOR Page:
ORIGINAL ISSUE DATE*: - Index Currency:
. EURIBOR:
ORIGINAL ISSUE DISCOUNT SECURITY: [N/A] . Treasury Rate:
. CMT Rate:
. Total Amount of OID: [N/A] - Moneyline Telerate Page 7051:
. Yield to Maturity: [N/A] - Moneyline Telerate Page 7052 (weekly/monthly):
. Initial Accrual Period OID: [N/A] - CMT Index Maturity:
. CD Rate:
PLACE OF PAYMENT: . Federal Funds Rate:
[Corporate Trust Office of the [Trustee] [Paying Agent] . Eleventh District Cost of Funds Rate:
in [The City of New York]]
REDEMPTION COMMENCEMENT DATE: [N/A]
________________
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date of
the first Predecessor Security.
(Face of Security continued on next page)
-2-
INDEX MATURITY: INTEREST PAYMENT DATE(S): unless otherwise
specified, the third Wednesday of the following:
SPREAD: . each of the 12 calendar months in each year
SPREAD MULTIPLIER: . each March, June, September and December
in each year
INITIAL BASE RATE: . each of the following two calendar months
in each year:
MAXIMUM RATE: . the following calendar month in each year:
MINIMUM RATE: subject to the second paragraph under "Payments Due
on a Business Day" below
INTEREST RESET PERIOD:
CALCULATION DATE(S): as provided in Section 3(n) on
. if semi-annual, reset will occur in each of the reverse of this Security (unless otherwise
the following two months in each year: specified)
. if annual, reset will occur in the following
month in each year:
CALCULATION AGENT: [JPMorgan Chase Bank]
. otherwise, reset will occur daily, weekly,
monthly or quarterly in each year as follows:
DEFEASANCE:
INTEREST RESET DATE(S): as provided in Section 3(a) . Full Defeasance: At Company's option
on the reverse of this Security (unless otherwise
specified)
. Covenant Defeasance: At Company's option
INTEREST DETERMINATION DATE(S): as provided in
Sections 3(b) through 3(j), as applicable, on the OTHER TERMS: In its sole discretion, the Company
reverse of this Security (unless otherwise specified) may at a later date issue additional debt
securities having the same terms as this Security.
Terms left blank or marked "N/A", "No", "None" or in a similar manner do
not apply to this Security except as otherwise may be specified.
(Face of Security continued on next page)
-3-
Whenever used in this Security, the terms specified above that apply to
this Security have the meanings specified above, unless the context requires
otherwise. Other terms used in this Security that are not defined herein but
that are defined in the Indenture referred to in Section 1 on the reverse of
this Security are used herein as defined therein.
(Face of Security continued on next page)
-4-
Universal Corporation, a corporation duly organized and existing under
the laws of the Commonwealth of Virginia (hereinafter called the "Company",
which term includes any successor Person under the Indenture), for value
received, hereby promises to pay to _____________, or registered assigns, as
principal the Principal Amount on the Stated Maturity Date and to pay interest
thereon, from the Original Issue Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, on the Interest
Payment Date(s) in each year, commencing on the first such date that is at least
15 calendar days after the Original Issue Date, and at the Maturity of the
principal hereof, at a rate per annum determined in accordance with the
applicable provisions of Section 3 on the reverse hereof, until the principal
hereof is paid or made available for payment. Any premium and any such
installment of interest that is overdue at any time shall also bear interest (to
the extent that the payment of such interest shall be legally enforceable), at
the rate per annum at which the principal then bears interest, from the date any
such overdue amount first becomes due until it is paid or made available for
payment. Notwithstanding the foregoing, interest on any principal, premium or
installment of interest that is overdue shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the 15th calendar day (whether or not a
Business Day, as such term is defined in Section 3(n) on the reverse hereof)
next preceding such Interest Payment Date (a "Regular Record Date"). Any
interest so payable, but not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") will forthwith cease
to be payable to the Holder on such Regular Record Date and such Defaulted
Interest either may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of this Security not less
than 10 days prior to such Special Record Date, or may be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which this Security may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
Manner of Payment - Global Securities
Notwithstanding any provision of this Security or the Indenture, if
this Security is a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 204 of the Indenture (or such
legend as may be specified as contemplated by Section 301 for such Securities)
(a "Global Security"), the Company may make any and all payments of principal,
premium and interest on this Security pursuant to any policies and procedures of
the U.S. Depository (hereinafter, the "Depositary") that is selected by the
Company for this Security.
Manner of Payment - Non-Global Securities - U.S. Dollars
Except as provided in the next paragraph, payment of interest that is
due on an Interest Payment Date payable on this Security in U.S. dollars will be
made by
(Face of Security continued on next page)
-5-
check mailed to the address of the Person shown on the Trustees' records as of
the close of business on the Regular Record Date. All other payments will be
made by check against surrender of this Security to JPMorgan Chase Bank, as
Paying Agent, or to any other person or financial institution from time to time
designated by the Company as Paying Agent.
If (i) the principal of this Security is at least $1,000,000, and
(ii) the Holder entitled to receive such payment transmits a written request for
such payment to be made in the following manner to the Trustee at its Corporate
Trust Office, Attention: Institutional Trust Services, and (iii) transmits wire
transfer instructions to the Paying Agent on or before the fifth Business Day
before the day on which such payment is to be made, the Company will pay any
amount that becomes due on this Security by wire transfer of immediately
available funds to an account at a bank in New York city, on the due date;
provided that, in the case of any such payment due at the Maturity of the
principal hereof (other than any payment of interest that first becomes due on
an Interest Payment Date), this Security must be first surrendered to the Paying
Agent. Any such request made with respect to any payment on this Security
payable to a particular Holder will remain in effect for all later payments on
this Security payable to such Holder, unless such request is revoked on or
before the fifth Business Day before a payment is to be made, in which case such
revocation shall be effective for such payment and all later payments. In the
case of any payment of interest payable on an Interest Payment Date, such
written request and instructions must be made by the Person who is the
registered Holder of this Security on the relevant Regular Record Date. The
Company will pay any administrative costs imposed by banks in connection with
making payments by wire transfer with respect to this Security, but any tax,
assessment or other governmental charge imposed upon any payment will be borne
by the Holder of this Security and may be deducted from the payment by the
Company or the Paying Agent.
Manner of Payment - Non-Global Securities - Other Specified Currencies
Payment of any amount payable on this Security in a Specified
Currency other than U.S. dollars will be made by wire transfer of immediately
available funds to such account as is maintained in such Specified Currency at a
bank or other financial institution acceptable to the Company and the Trustee
and as shall have been designated at least five Business Days prior to the
applicable payment date by the Person entitled to receive such payment; provided
that, in the case of any such payment due at the Maturity of the principal
hereof (other than any payment of interest that first becomes due on an Interest
Payment Date), this Security must be surrendered to the Paying Agent who will
make such payment in such funds in accordance with its normal procedures. Such
account designation shall be made by transmitting the appropriate information to
the Paying Agent by mail, hand delivery, telecopier or in any other manner
approved by the Paying Agent. Unless revoked, any such account designation made
with respect to this Security by the Holder hereof will remain in effect with
respect to any further payments with respect to this Security payable to such
Holder. If a payment in a Specified Currency other than U.S. dollars with
respect to this Security cannot be made by wire transfer because the required
account designation has not been received by the Paying Agent on or before the
requisite date or for any other reason, the Company will cause a
(Face of Security continued on next page)
-6-
notice to be given to the Holder of this Security at its registered address
requesting an account designation pursuant to which such wire transfer can be
made and such payment will be made within five Business Days after the Paying
Agent's receipt of such a designation meeting the requirements specified above,
with the same force and effect as if made on the due date. The Company will pay
any administrative costs imposed by banks in connection with making payments by
wire transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne by the Holder of this
Security and may be deducted from the payment by the Company or the Paying
Agent.
Currency of Payment
Payment of principal of (and premium, if any) and interest on this
Security will be made in the Specified Currency for such payment, except as
provided in this and the next three paragraphs. The Specified Currency for any
payment shall be the currency specified as such on the face of this Security
unless, at the time of such payment, such currency is not legal tender for the
payment of public and private debts in the country issuing such currency, in
which case the Specified Currency for such payment shall be such coin or
currency as at the time of such payment is legal tender for the payment of
public and private debts in such country, except as provided in the next
sentence. If the euro is specified on the face of this Security as the Specified
Currency for any payment, the Specified Currency for such payment shall be such
coin or currency as at the time of payment is legal tender for the payment of
public and private debts in all EMU Countries (as defined in Section 3 on the
reverse hereof), provided that, if on any day there are not at least two EMU
Countries, or if on any day there are at least two EMU Countries but no coin or
currency is legal tender for the payment of public and private debts in all EMU
Countries, then the Specified Currency for such payment shall be deemed not to
be available to the Company on such day.
Except as provided in the next paragraph, any payment to be made
on this Security in a Specified Currency other than U.S. dollars will be made in
U.S. dollars if the Person entitled to receive such payment transmits a written
request for such payment to be made in U.S. dollars to the Trustee at its
Corporate Trust Office, Attention: Institutional Trust Services on or before the
fifth Business Day before the payment is to be made. Such written request may be
mailed, hand delivered, telecopied or delivered in any other manner approved by
the Trustee. Any such request made with respect to any payment on this Security
payable to a particular Holder will remain in effect for all later payments on
this Security payable to such Holder, unless such request is revoked on or
before the fifth Business Day before a payment is to be made, in which case such
revocation shall be effective for such and all later payments. In the case of
any payment of interest payable on an Interest Payment Date, such written
request must be made by the Person who is the registered Holder of this Security
on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the
immediately preceding paragraph will be determined by the Exchange Rate Agent
specified on the face of this Security based upon the highest bid quotation
received by the Exchange Rate Agent as of 11:00 A.M., New York City time, on the
second Business Day preceding the
(Face of Security continued on next page)
-7-
applicable payment date, from three (or, if three are not available, then two)
recognized foreign exchange dealers selected by the Exchange Rate Agent in The
City of New York, in each case for the purchase by the quoting dealer, for U.S.
dollars and for settlement on such payment date of an amount of the Specified
Currency for such payment equal to the aggregate amount of such Specified
Currency payable on such payment date to all Holders of Securities of this or
any other series who elect to receive U.S. dollar payments on such payment date,
and at which the applicable dealer commits to execute a contract. If the
Exchange Rate Agent determines that two such bid quotations are not available on
such second Business Day, such payment will be made in the Specified Currency
for such payment. All currency exchange costs associated with any payment in
U.S. dollars on this Security will be borne by the Holder entitled to receive
such payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this
Security is payable on any day (including at Maturity) in a Specified Currency
other than U.S. dollars, and if such Specified Currency is not available to the
Company on the two Business Days before such day, due to the imposition of
exchange controls, disruption in a currency market or any other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligation to pay such amount in such Specified Currency by making such payment
in U.S. dollars. The amount of such payment in U.S. dollars shall be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York for such Specified Currency (the "Exchange
Rate") as of the latest day before the day on which such payment is to be made.
Any payment made under such circumstances in U.S. dollars where the required
payment is in other than U.S. dollars will not constitute an Event of Default
under the Indenture or this Security.
Payments Due on a Business Day
Unless otherwise specified on the face of this Security, the
following sentence shall apply to this Security. Notwithstanding any provision
of this Security or the Indenture, if any amount of principal, premium or
interest would otherwise be due on this Security on a day (the "Specified Day")
that is not a Business Day at a Place of Payment, such amount may be paid or
made available for payment on the next succeeding Business Day at such Place of
Payment (unless the Base Rate is LIBOR or EURIBOR and such next succeeding
Business Day falls in the next calendar month, in which case such amount may be
paid or made available for payment on the next preceding Business Day at such
Place of Payment) with the same force and effect as if such amount were paid on
the Specified Day, provided that no interest shall accrue on the amount so
payable for the period from and after such Specified Day. The provisions of this
paragraph shall apply to this Security in lieu of the provisions of Section 114
of the Indenture.
Unless otherwise specified on the face of this Security, the
following sentence shall apply to each Interest Payment Date other than one that
falls on the date of Maturity of the principal hereof. If any such Interest
Payment Date would otherwise be a day that is not a Business Day, such Interest
Payment Date shall be deferred to the next succeeding Business Day, provided
that, if the Base Rate is LIBOR or EURIBOR and the
(Face of Security continued on next page)
-8-
next succeeding Business Day would fall in the next calendar month, then such
Interest Payment Date will be advanced to the next preceding Business Day.
__________________
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
(Face of Security continued on next page)
-9-
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
UNIVERSAL CORPORATION
By____________________________
Name:
Title:
Dated:
Seal
Attest:
______________________________
Authorized Officer
This is one of the Securities of a series issued under the
Indenture described herein.
JPMORGAN CHASE BANK, as Trustee
By________________________________________
Authorized Officer
-10-
(Reverse of Security)
1. Securities and Indenture
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of February 1, 1991 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank and as Chemical Bank), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
2. Series and Denominations
This Security is one of the series designated on the face hereof,
limited to an aggregate initial offering price not to exceed $400,000,000 (or
the equivalent thereof in any other currency or currencies or currency units),
which amount may be increased at the option of the Company if in the future it
determines by or pursuant to a Board Resolution that it may wish to sell
additional Securities of this series. References herein to "this series" mean
the series of securities designated on the face hereof.
The Securities of this series are issuable only in registered form
without coupons in "Authorized Denominations", which term shall have the
following meaning. For each Security of this series having a principal amount
payable in U.S. dollars, the Authorized Denominations shall be $1,000 and
integral multiples thereof. For each Security of this series having a principal
amount payable in a Specified Currency other than U.S. dollars, the Authorized
Denominations shall be the amount of such Specified Currency equivalent, at the
Exchange Rate on the first Business Day next preceding the date on which the
Company accepts the offer to purchase such Security, to $1,000, rounded to an
integral multiple of 1,000 units of such Specified Currency, or any larger
integral multiple of 1,000 units of such Specified Currency.
3. Interest Rate
(a) Interest Rate Reset. The interest rate on this Security will be
reset from time to time, as provided in this Section 3, and each date upon which
such rate is reset as so provided is hereinafter called an "Interest Reset
Date". Unless otherwise specified on the face hereof, the Interest Reset Dates
with respect to this Security will be as follows:
(i) if the Interest Reset Period is daily, each Business Day;
(ii) if the Interest Reset Period is weekly and the Base Rate is not
the Treasury Rate, the Wednesday of each week;
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-11-
(iii) if the Interest Reset Period is weekly and the Base Rate is the
Treasury Rate, except as otherwise provided in the definition of "Treasury
Interest Determination Date" in Section 3(n) below, the Tuesday of each
week;
(iv) if the Interest Reset Period is monthly, the third Wednesday of
each month;
(v) if the Interest Reset Period is quarterly, the third Wednesday
of each March, June, September and December of each year;
(vi) if the Interest Reset Period is semi-annual, the third Wednesday
of each of two months in each year specified under "Interest Reset Period"
on the face hereof; and
(vii) if the Interest Reset Period is annual, the third Wednesday of
the month in each year specified under "Interest Reset Period" on the face
hereof;
provided, however, that (x) the interest rate on this Security in effect from
the Original Issue Date to but excluding the first Interest Reset Date will be
the Initial Base Rate and (y) if the Interest Reset Period is daily or weekly,
the Base Rate in effect for each day following the second Business Day
immediately prior to an Interest Payment Date to, but excluding, such Interest
Payment Date, and for each day following the second Business Day immediately
prior to the day of Maturity of the principal hereof to, but excluding, such day
of Maturity, will be the Base Rate in effect on such applicable second Business
Day; and provided, further, that, if any Interest Reset Date would otherwise be
a day that is not a Business Day, such Interest Reset Date shall be the next
succeeding day that is a Business Day, except that, unless otherwise specified
on the face hereof, if the Base Rate is LIBOR and such next succeeding Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day.
Subject to applicable provisions of law and except as otherwise
specified herein, on each Interest Reset Date the interest rate on this Security
shall be the rate determined in accordance with such of the following Sections
3(b) through 3(j) as provide for determination of the Base Rate for this
Security. The Calculation Agent shall determine the interest rate of this
Security in accordance with the applicable Section below.
Unless the Base Rate is LIBOR or EURIBOR, the Calculation Agent will
determine the interest rate of this Security that takes effect on any Interest
Reset Date on a day no later than the Calculation Date (as defined in Section
3(n) below) corresponding to such Interest Reset Date. However, the Calculation
Agent need not wait until the Calculation Date to determine such interest rate
if the rate information it needs to make such determination in the manner
specified in the applicable provisions of Sections 3(b) through 3(j) hereof is
available from the relevant sources specified in such applicable provisions.
(Reverse of Security continued on next page)
-12-
Upon request of the Holder to the Calculation Agent, the Calculation
Agent will provide the interest rate then in effect on this Security and, if
determined, the interest rate that will become effective on the next Interest
Reset Date.
(b) Determination of Commercial Paper Rate. If the Base Rate is the
Commercial Paper Rate, the Base Rate that takes effect on any Interest Reset
Date shall equal the Money Market Yield (as defined in Section 3(n) below) of
the rate, for the second Business Day immediately preceding such Interest Reset
Date (the "Commercial Paper Interest Determination Date"), for commercial paper
having the Index Maturity, as published in H.15(519) (as defined in Section 3(n)
below) under the heading "Commercial Paper - Nonfinancial". If the Commercial
Paper Rate cannot be determined as described above, the following procedures
will apply in determining the Commercial Paper Rate:
(i) If the rate described above does not appear in H.15(519) by 3:00
P.M., New York City time, on the Calculation Date (as defined in Section
3(n) below) corresponding to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate will be the rate, for such
Commercial Paper Interest Determination Date, for commercial paper having
the Index Maturity, as published in H.15 Daily Update (as defined in
Section 3(n) below) or any other recognized electronic source used for
displaying that rate, under the heading "Commercial Paper -
Nonfinancial".
(ii) If the rate described in clause (i) above does not appear in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date, the Commercial
Paper Rate will be the Money Market Yield of the arithmetic mean of the
following offered rates for U.S. dollar commercial paper that has the
Index Maturity and is placed for an industrial issuer whose bond rating
is "AA", or the equivalent, from a nationally recognized rating agency:
the rates offered as of 11:00 A.M., New York City time, on such
Commercial Paper Interest Determination Date by three leading U.S. dollar
commercial paper dealers in New York City selected by the Calculation
Agent.
(iii) If fewer than three dealers selected by the Calculation Agent
are quoting as described in clause (ii) above, the Commercial Paper Rate
shall be the Commercial Paper Rate in effect on the previous Commercial
Paper Interest Determination Date (or, in the case of the first Interest
Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(b) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(c) Determination of Prime Rate. If the Base Rate is the Prime Rate,
the Base Rate that takes effect on any Interest Reset Date shall equal the rate,
for the second Business Day immediately preceding such Interest Reset Date (the
"Prime
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-13-
Interest Determination Date"), published in H.15(519) under the heading "Bank
Prime Loan". If the Prime Rate cannot be determined as described above, the
following procedures will apply in determining the Prime Rate:
(i) If the rate described above does not appear in H.15(519) by 3:00
P.M., New York City time, on the Calculation Date corresponding to such
Prime Interest Determination Date, then the Prime Rate will be the rate,
for such Prime Interest Determination Date, as published in H.15 Daily
Update or another recognized electronic source used for the purpose of
displaying that rate, under the heading "Bank Prime Loan".
(ii) If the rate described in clause (i) above does not appear in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date, then the Prime
Rate will be the arithmetic mean of the following rates as they appear on
the Reuters Screen US PRIME 1 Page (as defined in Section 3(n) below):
the rate of interest publicly announced by each bank appearing on that
page as that bank's prime rate or base lending rate, as of 11:00 A.M.,
New York City time, on such Prime Interest Determination Date.
(iii) If fewer than four of the rates referred to in clause (ii) above
appear on the Reuters Screen US PRIME 1 Page, the Prime Rate will be the
arithmetic mean of the Prime Rates or base lending rates, as of the close
of business on such Prime Interest Determination Date, of three major
banks in New York City selected by the Calculation Agent. For this
purpose, the Calculation Agent will use rates quoted on the basis of the
actual number of days in the year divided by a 360-day year.
(iv) If fewer than three banks selected by the Calculation Agent are
quoting as described in clause (iii) above, the Prime Rate shall be the
Prime Rate in effect on such Prime Interest Determination Date (or, in
the case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(c) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(d) Determination of LIBOR. If the Base Rate is LIBOR, the Base Rate
that takes effect on any Interest Reset Date shall be LIBOR on the corresponding
LIBOR Interest Determination Date (as defined in Section 3(n) below) and shall
be determined in accordance with the following provisions:
LIBOR will be either of the following rates, whichever appears on the
face hereof:
(x) the offered rate appearing on the Moneyline Telerate LIBOR
Page (as defined in Section 3(n) below); or
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-14-
(y) the arithmetic mean of the offered rates appearing on the
Reuters Screen LIBOR Page (as defined in Section 3(n) below) unless that page by
its terms cites only one rate, in which case that rate;
in either case, as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date for deposits of the Index Currency having the Index Maturity
beginning on such Interest Reset Date. If no reference page is specified on the
face hereof, Moneyline Telerate LIBOR Page will apply to this Security:
(i) If Moneyline Telerate LIBOR Page is specified on the face hereof
and the rate referenced in clause (x) above does not appear on that page,
or if Reuters Screen LIBOR Page is specified on the face hereof and fewer
than two of the rates referenced in clause (y) above appear on that page
or no rate appears on any page on which only one rate normally appears,
then LIBOR will be determined on the basis of the rates, at approximately
11:00 A.M., London time, on such LIBOR Interest Determination Date, at
which deposits of the following kind are offered to prime banks in the
London interbank market by four major banks in that market selected by
the Calculation Agent: deposits of the Index Currency having the Index
Maturity beginning on such Interest Reset Date and in a Representative
Amount (as defined in Section 3(n) below). The Calculation Agent will
request the principal London office of each such bank to provide a
quotation of its rate. If at least two quotations are provided, LIBOR for
such LIBOR Interest Determination Date will be the arithmetic mean of the
quotations.
(ii) If fewer than two quotations are provided as described in clause
(i) above, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of the rates for loans of the following kind to leading
European banks quoted, at approximately 11:00 A.M. in the principal
financial center (as defined in Section 3(n) below) for the country
issuing the Index Currency, on such LIBOR Interest Determination Date, by
three major banks in that principal financial center selected by the
Calculation Agent: loans of the Index Currency having the Index Maturity
beginning on such Interest Reset Date and in a Representative Amount.
(iii) If fewer than three banks selected by the Calculation Agent are
quoting as described in clause (ii) above, LIBOR will be the LIBOR in
effect on the previous LIBOR Interest Determination Date (or, in the case
of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(d) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any. If the Base Rate is LIBOR and
no currency is specified on the face hereof as the Index Currency, the Index
Currency shall be U.S. dollars.
(e) Determination of EURIBOR. If the Base Rate is EURIBOR, the Base
Rate that takes effect on any Interest Reset Date shall equal the interest rate
for
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-15-
deposits in euros designated as "EURIBOR" and sponsored jointly by the European
Banking Federation and ACI - the Financial Market Association (or any company
established by the joint sponsors for purposes of compiling and publishing that
rate) on the second Euro Business Day (as defined in Section 3(n) below) before
such Interest Reset Date (a "EURIBOR Interest Determination Date"), and will be
determined in accordance with the following provisions:
(i) EURIBOR will be the offered rate for deposits in euros having
the Index Maturity beginning on such Interest Reset Date, as that rate
appears on Moneyline Telerate Page 248 (as defined in Section 3(n) below)
as of 11:00 A.M., Brussels time, on such EURIBOR Interest Determination
Date.
(ii) If the rate described in clause (i) above does not appear on
Moneyline Telerate Page 248, EURIBOR will be determined on the basis of
the rates, at approximately 11:00 A.M., Brussels time, on such EURIBOR
Interest Determination Date, at which deposits of the following kind are
offered to prime banks in the Euro-Zone (as defined in Section 3(n)
below) interbank market by the principal Euro-Zone office of each of four
major banks in that market selected by the Calculation Agent: euro
deposits having the Index Maturity beginning on such Interest Reset Date
and in a Representative Amount. The Calculation Agent will request the
principal Euro-Zone office of each of these banks to provide a quotation
of its rate. If at least two quotations are provided, EURIBOR for such
EURIBOR Interest Determination Date will be the arithmetic mean of such
quotations.
(iii) If fewer than two quotations are provided as described in clause
(ii) above, EURIBOR for such EURIBOR Interest Determination Date will be
the arithmetic mean of the rates for loans of the following kind to
leading Euro-Zone banks quoted, at approximately 11:00 A.M., Brussels
time, on such EURIBOR Interest Determination Date, by three major banks
in the Euro-Zone selected by the Calculation Agent: loans of euros having
the Index Maturity beginning on such Interest Reset Date and in a
Representative Amount.
(iv) If fewer than three banks selected by the Calculation Agent are
quoting as described in clause (iii) above, EURIBOR shall be the EURIBOR
in effect on such EURIBOR Interest Determination Date (or, in the case of
the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(e) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(f) Determination of Treasury Rate. If the Base Rate is the Treasury
Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the
rate for the auction on the corresponding Treasury Interest Determination Date
(as defined in Section 3(n) below) of direct obligations of the United States
("Treasury Bills") having the Index
(Reverse of Security continued on next page)
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Maturity, as that rate appears on Moneyline Telerate Page 56 or 57 under the
heading "Investment Rate". If the Treasury Rate cannot be determined as
described above, the following procedures will apply in determining the Treasury
Rate:
(i) If the rate described above does not appear on either Moneyline
Telerate Page 56 or 57 by 3:00 P.M., New York City time, on the Calculation
Date corresponding to such Treasury Interest Determination Date, the
Treasury Rate will be the Bond Equivalent Yield (as defined in Section 3(n)
below) of the rate, for such Treasury Interest Determination Date and for
Treasury Bills having the Index Maturity, as published in H.15 Daily
Update, or another recognized electronic source used for displaying that
rate, under the heading "U.S. Government Securities/Treasury Bills/Auction
High".
(ii) If the rate described in clause (i) above does not appear in
H.15 Daily Update or another recognized electronic source by 3:00 P.M., New
York City time, on such Calculation Date, the Treasury Rate will be the
Bond Equivalent Yield of the auction rate, for such Treasury Interest
Determination Date and for Treasury Bills having the Index Maturity, as
announced by the U.S. Department of the Treasury.
(iii) If the auction rate described in clause (ii) above is not so
announced by 3:00 P.M., New York City time, on such Calculation Date, or if
no such auction is held for the relevant week, then the Treasury Rate will
be the Bond Equivalent Yield of the rate, for such Treasury Interest
Determination Date and for Treasury Bills having a remaining maturity
closest to the Index Maturity, as published in H.15(519) under the heading
"U.S. Government Securities/Treasury Bills/Secondary Market".
(iv) If the rate described in clause (iii) above does not appear in
H.15(519) by 3:00 P.M., New York City time, on such Calculation Date, then
the Treasury Rate will be the rate, for such Treasury Interest
Determination Date and for Treasury Bills having a remaining maturity
closest to the Index Maturity, as published in H.15 Daily Update, or
another recognized electronic source used for displaying that rate, under
the heading "U.S. Government Securities/ Treasury Bills /Secondary Market".
(v) If the rate described in clause (iv) above does not appear in
H.15 Daily Update or another recognized electronic source by 3:00 P.M., New
York City time, on such Calculation Date, the Treasury Rate will be the
Bond Equivalent Yield of the arithmetic mean of the following secondary
market bid rates for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity: the rates bid as of approximately 3:30 P.M.,
New York City time, on such Treasury Interest Determination Date, by three
primary U.S. government securities dealers in New York City selected by the
Calculation Agent.
(Reverse of Security continued on next page)
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(vi) If fewer than three dealers selected by the Calculation
Agent are quoting as described in clause (v) above, the Treasury Rate
shall be the Treasury Rate in effect on such Treasury Interest
Determination Date (or, in the case of the first Interest Reset Date,
the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(f)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any, specified on the
face hereof.
(g) Determination of CMT Rate. If the Base Rate is the CMT Rate,
the Base Rate that takes effect on any Interest Reset Date shall equal the CMT
Rate on the second Business Day immediately preceding such Interest Reset Date
(the "CMT Interest Determination Date"). "CMT Rate" means the following rate
displayed on the Designated CMT Moneyline Telerate Page (as defined in Section
3(n) below) under the heading " . . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.", under the
column for the Designated CMT Index Maturity (as defined in Section 3(n) below):
(x) if the Designated CMT Moneyline Telerate Page is Moneyline
Telerate Page 7051, the rate for such CMT Interest Determination Date; or
(y) if the Designated CMT Moneyline Telerate Page is Moneyline
Telerate Page 7052, the weekly or monthly average, as specified on the face
hereof, for the week that ends immediately before the week in which such
CMT Interest Determination Date falls, or for the month that ends
immediately before the month in which such CMT Interest Determination Date
falls, as applicable.
If the CMT Rate cannot be determined as described above, the following
procedures will apply in determining the CMT Rate:
(i) If the applicable rate described above is not displayed on
the relevant Designated CMT Moneyline Telerate Page by 3:00 P.M., New
York City time, on the Calculation Date corresponding to such CMT
Interest Determination Date, then the CMT Rate will be the applicable
Treasury constant maturity rate described above - i.e., for the
Designated CMT Index Maturity and for either such CMT Interest
Determination Date or the weekly or monthly average, as applicable -
as published in H.15(519).
(ii) If the applicable rate described in clause (i) above does
not appear in H.15(519) by 3:00 P.M., New York City time, on such
Calculation Date, then the CMT Rate will be the Treasury constant
maturity rate, or other U.S. Treasury rate, for the Designated CMT
Index Maturity and with reference to such CMT Interest Determination
Date, that:
(a) is published by the Board of Governors of the Federal
Reserve System, or the U.S. Department of the Treasury, and
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(b) is determined by the Calculation Agent to be comparable to
the applicable rate formerly displayed on the Designated CMT Moneyline
Telerate Page and published in H.15(519).
(iii) If the information described in clause (ii) above is not
provided by 3:00 P.M., New York City time, on such Calculation Date, then
the CMT Rate will be the yield to maturity of the arithmetic mean of the
following secondary market offered rates for the most recently issued
Treasury Notes (as defined in Section 3(n) below) having an original
maturity of approximately the Designated CMT Index Maturity, having a
remaining term to maturity of not less than the Designated CMT Index
Maturity minus one year and in a Representative Amount: the offered rates,
as of approximately 3:30 P.M., New York City time, on such CMT Interest
Determination Date, of three primary U.S. government securities dealers in
New York City selected by the Calculation Agent. In selecting such offered
rates, the Calculation Agent will request quotations from five such primary
dealers and will disregard the highest quotation or, if there is equality,
one of the highest - and the lowest quotation - or, if there is equality,
one of the lowest.
(iv) If the Calculation Agent is unable to obtain three quotations of
the kind described in clause (iii) above, the CMT Rate will be the yield to
maturity of the arithmetic mean of the following secondary market offered
rates for Treasury Notes having an original maturity longer than the
Designated CMT Index Maturity, having a remaining term to maturity closest
to the Designated CMT Index Maturity and in a Representative Amount: the
offered rates, as of approximately 3:30 P.M., New York City time, on such
CMT Interest Determination Date, of three primary U.S. government
securities dealers in New York City selected by the Calculation Agent. In
selecting such offered rates, the Calculation Agent will request quotations
from five such primary dealers and will disregard the highest quotation -
or, if there is equality, one of the highest - and the lowest quotation -
or, if there is equality, one of the lowest. If two Treasury Notes with an
original maturity longer than the Designated CMT Index Maturity have
remaining terms to maturity that are equally close to the Designated CMT
Index Maturity, the Calculation Agent will obtain quotations for the
Treasury Note with the shorter remaining term to maturity.
(v) If fewer than five but more than two such primary dealers are
quoting as described in clause (iv) above, then the CMT Rate for such CMT
Interest Determination Date will be based on the arithmetic mean of the
offered rates so obtained, and neither the highest nor the lowest of such
quotations will be disregarded.
(vi) If two or fewer primary dealers selected by the Calculation Agent
are quoting as described in clause (v) above, the CMT Rate shall be the CMT
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Rate in effect on such CMT Interest Determination Date (or, in the
case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(g)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(h) Determination of CD Rate. If the Base Rate is the CD Rate,
the Base Rate that takes effect on any Interest Reset Date shall equal the rate,
on the second Business Day immediately preceding such Interest Reset Date (the
"CD Interest Determination Date"), for negotiable U.S. dollar certificates of
deposit having the Index Maturity as published in H.15(519) under the heading
"CDs (Secondary Market)". If the CD Rate cannot be determined as described
above, the following procedures will apply in determining the CD Rate:
(i) If the rate described above does not appear in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date corresponding
to such CD Interest Determination Date, then the CD Rate shall be the
rate described above as published in H.15 Daily Update, or another
recognized electronic source used for displaying that rate, under the
heading "CDs (Secondary Market)".
(ii) If the rate described in clause (i) above does not appear in
H.15(519), H.15 Daily Update or another recognized electronic source
by 3:00 P.M., New York City time, on such Calculation Date, then the
CD Rate shall be the arithmetic mean of the following secondary market
offered rates for negotiable U.S. dollar certificates of deposit of
major U.S. money center banks having a remaining maturity closest to
the Index Maturity and in a Representative Amount: the rates offered
as of 10:00 A.M., New York City time, on such CD Interest
Determination Date, by three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in New York City, as selected by
the Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation
Agent are quoting as described in clause (ii) above, the CD Rate will
be the CD Rate in effect on such CD Interest Determination Date (or,
in the case of the first Base Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(h)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(i) Determination of Federal Funds Rate. If the Base Rate is the
Federal Funds Rate, the Base Rate that takes effect on any Interest Reset Date
shall equal the rate, on the second Business Day immediately preceding such
Interest Reset Date (the "Federal Funds Interest Determination Date"), for
Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)", as that rate is displayed on
(Reverse of Security continued on next page)
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Moneyline Telerate Page 120. If the Federal Funds Rate cannot be determined as
described above, the following procedures will apply in determining the Federal
Funds Rate:
(i) If the rate described above is not displayed on Moneyline
Telerate Page 120 by 3:00 P.M., New York City time, on the Calculation Date
corresponding to such Federal Funds Interest Determination Date, then the
Federal Funds Rate will be the rate described above as published in H.15
Daily Update, or another recognized electronic source used for displaying
that rate, under the heading "Federal Funds (Effective)".
(ii) If the rate described in clause (i) above is not displayed on
Moneyline Telerate Page 120 and does not appear in H.15 (519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City
time, on such Calculation Date, the Federal Funds Rate will be the
arithmetic mean of the rates for the last transaction in overnight, U.S.
dollar federal funds arranged, before 9:00 A.M., New York City time, on
such Federal Funds Interest Determination Date, by three leading brokers of
U.S. dollar federal funds transactions in New York City selected by the
Calculation Agent.
(iii) If fewer than three brokers selected by the Calculation Agent
are quoting as described in clause (ii) above, the Federal Funds Rate will
be the Federal Funds Rate in effect on such Federal Funds Interest
Determination Date (or, in the case of the first Interest Reset Date, the
Initial Base Rate).
The interest rate determined in accordance with this Section 3(i) will
be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(j) Determination of 11th District Rate. If the Base Rate is the
Eleventh District Cost of Funds Rate (the "11th District Rate"), the Base Rate
that takes effect on any Interest Reset Date shall equal the 11th District Rate
on the 11th District Interest Determination Date (as defined in Section 3(n)
below) corresponding to such Interest Reset Date. The 11th District Rate on any
11th District Interest Determination Date shall be the rate equal to the monthly
weighted average cost of funds for the calendar month immediately before such
date, as displayed on Moneyline Telerate Page 7058 under the heading "11th
District" as of 11:00 A.M., San Francisco time, on such date. If the 11th
District Rate cannot be determined as described above, the following procedures
will apply in determining the 11th District Rate:
(i) If the rate described above does not appear on Moneyline Telerate
Page 7058 on such 11th District Interest Determination Date, then the 11th
District Rate on such date will be the monthly weighted average cost of
funds paid by institutions that are members of the Eleventh Federal Home
Loan Bank District for the calendar month immediately preceding such date,
as most recently announced by the Federal Home Loan Bank of San Francisco
as such monthly weighted average cost of funds.
(Reverse of Security continued on next page)
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(ii) If the Federal Home Loan Bank of San Francisco fails to announce
the cost of funds described in clause (i) above on or before such 11th
District Interest Determination Date, the 11th District Rate that takes
effect on such Interest Reset Date will be the 11th District Rate in effect
on such 11th District Interest Determination Date (or, in the case of the
first Interest Reset Date, the Initial Base Rate).
The interest rate determined in accordance with this Section 3(j) will
be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(k) Minimum and Maximum Limits. Notwithstanding the foregoing, the
rate at which interest accrues on this Security (i) shall not at any time be
higher than the Maximum Rate, if any, or less than the Minimum Rate, if any,
specified on the face hereof, in each case on an accrual basis, and (ii) shall
not at any time be higher than the maximum rate permitted by New York law, as
the same may be modified by United States law of general application.
(l) Calculation of Interest. Payments of interest hereon with respect
to any Interest Payment Date or at the Maturity of the principal hereof will
include interest accrued to but excluding such Interest Payment Date or the date
of such Maturity, as the case may be. Accrued interest from the date of issue or
from the last date to which interest has been paid or duly provided for shall be
calculated by the Calculation Agent by multiplying the Principal Amount by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factors calculated for each day from and including the
Original Issue Date or from and including the last date to which interest has
been paid or duly provided for, to but excluding the date for which accrued
interest is being calculated. The interest factor for each such day shall be
expressed as a decimal and computed by dividing the interest rate (also
expressed as a decimal) in effect on such day by 360, if the Base Rate is the
Commercial Paper Rate, Prime Rate, LIBOR, EURIBOR, CD Rate, Federal Funds Rate
or 11th District Rate, or by the actual number of days in the year, if the Base
Rate is the Treasury Rate or CMT Rate.
All percentages resulting from any calculation with respect to this
Security will be rounded upward or downward, as appropriate, to the next higher
or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or
..09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or
..09876545) being rounded up to 9.87655% (or .0987655) ). All amounts used in or
resulting from any calculation with respect to this Security will be rounded
upward or downward, as appropriate, to the nearest cent, in the case of U.S.
dollars, or to the nearest corresponding hundredth of a unit, in the case of a
currency other than U.S. dollars, with one-half cent or one-half of a
corresponding hundredth of a unit or more being rounded upward.
(m) Calculation Agent and Exchange Rate Agent. The Company has
initially appointed the institutions named on the face of this Security as
Calculation Agent and Exchange Rate Agent, respectively, to act as such agents
with respect to this Security, but the Company may, in its sole discretion,
appoint any other institution
(Reverse of Security continued on next page)
-22-
(including any Affiliate of the Company) to serve as any such agent from time to
time. The Company will give the Trustee prompt written notice of any change in
any such appointment. Insofar as this Security provides for any such agent to
obtain rates, quotes or other data from a bank, dealer or other institution for
use in making any determination hereunder, such agent may do so from any
institution or institutions of the kind contemplated hereby notwithstanding that
any one or more of such institutions are any such agent, Affiliates of any such
agent or Affiliates of the Company.
All determinations made by the Calculation Agent or the Exchange Rate
Agent may be made by such agent in its sole discretion and, absent manifest
error, shall be conclusive for all purposes and binding on the Holder of this
Security and the Company. Neither the Calculation Agent nor the Exchange Rate
Agent shall have any liability therefor.
(n) Definitions of Calculation Terms. As used in this Security, the
following terms have the meanings set forth below:
"Bond Equivalent Yield" means a yield expressed as a percentage and
calculated in accordance with the following formula:
Bond Equivalent Yield = D x N x 100,
---------
360(D x M)
where
. "D" equals the annual rate for Treasury Bills quoted on a bank
discount basis and expressed as a decimal;
. "N" equals 365 or 366, as the case may be; and
. "M" equals the actual number of days in the period from and including
the relevant Interest Reset Date to but excluding the next succeeding
Interest Reset Date.
"Business Day" means, for this Security, a day that meets the
requirements set forth in each of clauses (i) through (iv) below, in each case
to the extent such requirements apply to this Security as specified below:
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(i) is a Monday, Tuesday, Wednesday, Thursday or Friday that is not
a day on which banking institutions in The City of New York
generally are authorized or obligated by law, regulation or
executive order to close;
(ii) if the Base Rate is LIBOR, is also a London Business Day;
(iii) if the Specified Currency for payment of principal of or
interest on this Security is other than U.S. dollars or euros,
is also a day on which banking institutions in the principal
financial center of the country issuing such Specified Currency
generally are not authorized or obligated by law, regulation or
executive order to close;
(iv) if the Base Rate is EURIBOR or if the Specified Currency for
payment of principal of or interest on this Security is euros,
or the Base Rate is LIBOR for which the Index Currency is euros,
is also a Euro Business Day; and
(v) solely with respect to any payment or other action to be made or
taken at any Place of Payment outside The City of New York, is a
Monday, Tuesday, Wednesday, Thursday or Friday that is not a day
on which banking institutions in such Place of Payment generally
are authorized or obligated by law, regulation or executive
order to close.
Solely when used in the third paragraph under the heading "Currency of Payment"
on the face of this Security, the meaning of the term "Business Day" shall be
determined as if the Base Rate for this Security is neither LIBOR nor EURIBOR.
With respect to any particular location, the close of business on any day on
which business is not being conducted at that location shall be deemed to mean
5:00 P.M., New York City time, on that day.
The "Calculation Date" corresponding to any Commercial Paper Interest
Determination Date, Prime Interest Determination Date, LIBOR Interest
Determination Date, EURIBOR Interest Determination Date, Treasury Interest
Determination Date, CMT Interest Determination Date, CD Interest Determination
Date, Federal Funds Interest Determination Date or 11th District Interest
Determination Date, as the case may be, means the earlier of:
(i) the tenth day after such interest determination date or, if any
such day is not a Business Day, the next succeeding Business Day; and
(ii) the Business Day immediately preceding the Interest Payment Date
or the date of Maturity of the principal hereof, whichever is the day on
which the next payment of interest will be due.
The Calculation Date corresponding to any Interest Reset Date means the
Calculation Date corresponding to the relevant interest determination date
immediately preceding such Interest Reset Date.
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-24-
"Designated CMT Index Maturity" means, if the Base Rate is the CMT
Rate, the CMT Index Maturity for this Security and will be the original period
to maturity of a U.S. Treasury security - either 1, 2, 3, 5, 7, 10, 20 or 30
years - specified on the face hereof, provided that, if no such original
maturity period is so specified, the Designated CMT Index Maturity will be 2
years.
"Designated CMT Moneyline Telerate Page" means, if the Base Rate is
the CMT Rate, the Moneyline Telerate Page specified on the face hereof that
displays Treasury constant maturities as reported in H.15(519), provided that,
if no Moneyline Telerate Page is so specified, then the applicable page will be
Moneyline Telerate Page 7052 and provided, further, that if Moneyline Telerate
Page 7052 applies but it is not specified on the face hereof whether the weekly
or monthly average applies, the weekly average will apply.
The "11th District Interest Determination Date" corresponding to a
particular Interest Reset Date will be the last working day, in the first
calendar month immediately preceding such Interest Reset Date, on which the
Federal Home Loan Bank of San Francisco publishes the monthly average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District for the second calendar month immediately preceding such Interest Reset
Date.
"EMU Countries" means, at any time, the countries (if any) then
participating in the European Economic and Monetary Union (or any successor
union) pursuant to the Treaty on European Union of February 1992 (or any
successor treaty), as it may be amended from time to time.
"Euro Business Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System, or any
successor system, is open for business.
"Euro-Zone" means, at any time, the region comprised of the EMU
Countries.
"H.15(519)" means the weekly statistical release entitled "Statistical
Release H.15 (519)", or any successor publication, published by the Board of
Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519) available
through the worldwide web site of the Board of Governors of the Federal Reserve
System, at ▇▇▇▇://▇▇▇. ▇▇▇.▇▇▇.▇▇▇.▇▇/▇▇▇▇▇▇▇▇/▇▇▇/▇▇▇▇▇▇, or any successor site
or publication.
The "LIBOR Interest Determination Date" corresponding to any Interest
Reset Date means the second London Business Day preceding such Interest Reset
Date, unless the Index Currency is pounds sterling, in which case the LIBOR
Interest Determination Date will be the Interest Reset Date.
"London Business Day" means any day on which dealings in the Index
Currency are transacted in the London interbank market.
"Money Market Yield" means a yield expressed as a percentage and
calculated in accordance with the following formula:
(Reverse of Security continued on next page)
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇ Yield = D x 360 x 100,
-----------
360 - (D x M)
where
. "D" equals the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and
. "M" equals the actual number of days in the period from and including
the relevant Interest Reset Date to but excluding the next succeeding
Interest Reset Date.
"Moneyline Telerate LIBOR Page" means Moneyline Telerate Page 3750 or
any replacement page or pages on which London interbank rates of major banks for
the Index Currency are displayed.
"Moneyline Telerate Page" means the display on Moneyline Telerate,
Inc., or any successor service, on the page or pages specified on the face
hereof, or any replacement page or pages on that service.
"Principal Financial Center" means the capital city of the country
issuing the Specified Currency in respect of which payment on this Security is
to be made, or, with respect to the calculation of LIBOR, issuing the specified
Index Currency, except that with respect to U.S. Dollars, Australian Dollars and
Swiss Francs, the Principal Financial Center shall be The City of New York,
Sydney and Luxembourg, respectively.
"Representative Amount" means an amount that, in the Calculation
Agent's judgment, is representative of a single transaction in the relevant
market at the relevant time.
"Reuters Screen LIBOR Page" means the display on the Reuters Monitor
Money Rates Service, or any successor service, on the page designated as "LIBOR"
or any replacement page or pages on which London interbank rates of major banks
for the Index Currency are displayed.
"Reuters Screen US PRIME 1 Page" means the display on the "US PRIME 1"
page on the Reuters Monitor Money Rates Service, or any successor service, or
any replacement page or pages on that service, for the purpose of displaying
prime rates or base lending rates of major U.S. banks.
The "Treasury Interest Determination Date" corresponding to any
Interest Reset Date means the day of the week in which such Interest Reset Date
falls on which Treasury bills would normally be auctioned. If, as the result of
a legal holiday, an auction is so held on the Friday in the week immediately
preceding the week in which such Interest Reset Day falls, such Friday will be
the corresponding Treasury Interest Determination Date. If an auction date shall
fall on a day that would otherwise be an Interest Reset Date, then such Interest
Reset Date shall instead be the first Business Day immediately following such
auction date.
(Reverse of Security continued on next page)
-26-
"Treasury Notes" means direct, noncallable, fixed rate obligations of
the U.S. government.
References in this Security to U.S. dollars shall mean, as of any
time, the coin or currency that is then legal tender for the payment of public
and private debts in the United States of America.
References in this Security to the euro shall mean, as of any time,
the coin or currency (if any) that is then legal tender for the payment of
public and private debts in all EMU Countries.
References in this Security to a particular currency other than U.S.
dollars and euros shall mean, as of any time, the coin or currency that is then
legal tender for the payment of public and private debts in the country issuing
such currency on the Original Issue Date.
References in this Security to a particular heading or headings on any
of Designated CMT Moneyline Telerate Page, H.15(519), H.15 Daily Update, Reuters
Screen LIBOR Page, Reuters Screen US Prime 1 Page, Moneyline Telerate LIBOR Page
or Moneyline Telerate Page include any successor or replacement heading or
headings as determined by the Calculation Agent.
4. Redemption at the Company's Option
Unless a Redemption Commencement Date is specified on the face hereof,
this Security shall not be redeemable at the option of the Company before the
Stated Maturity Date. If a Redemption Commencement Date is so specified, and
unless otherwise specified on the face hereof, this Security is subject to
redemption upon not less than 30 days' nor more than 60 days' notice at any time
and from time to time on or after the Redemption Commencement Date, in each case
as a whole or in part, at the election of the Company and at the applicable
Redemption Price specified on the face hereof (expressed as a percentage of the
principal amount of this Security to be redeemed), together with accrued
interest to the Redemption Date, but interest installments due on or prior to
such Redemption Date will be payable to the Holder of this Security, or one or
more Predecessor Securities, of record at the close of business on the relevant
record date, all as provided in the Indenture.
5. Repayment at the Holder's Option
Except as otherwise may be provided on the face hereof, if one or more
Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in an amount equal to any Authorized Denomination
(provided that the remaining principal amount of any Security surrendered for
partial repayment shall at least equal an Authorized Denomination), on any such
Repayment Date, in each case at the option of the Holder and at the applicable
Repayment Price specified on the face hereof (expressed as a percentage of the
principal amount to be repaid), together with accrued interest to the applicable
Repayment Date (but interest installments due on or prior to such Repayment Date
will be payable to the Holder of this Security, or one or
(Reverse of Security continued on next page)
-27-
more Predecessor Securities, of record at the close of business on the relevant
Record Date as provided in the Indenture). If this Security provides for more
than one Repayment Date, and the Holder exercises its option to elect repayment,
the Holder shall be deemed to have elected repayment on the earliest Repayment
Date after all conditions to such exercise have been satisfied, and references
herein to the "applicable Repayment Date" shall mean such earliest Repayment
Date.
In order for the exercise of such option to be effective and this
Security to be repaid, the Company must receive at the applicable address of the
Trustee set forth below (or at such other place or places of which the Company
shall from time to time notify the Holder of this Security), on any Business Day
not later than the 15th, and not earlier than the 25th, calendar day prior to
the applicable Repayment Date (or, if either such calendar day is not a Business
Day, the next succeeding Business Day), either (i) this Security, with the form
below entitled "Option to Elect Repayment" duly completed and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., or
a commercial bank or a trust company in the United States of America setting
forth (a) the name, address and telephone number of the Holder of this Security,
(b) the principal amount of this Security and the amount of this Security to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby and (d) a guarantee stating that the Company will receive this Security,
with the form below entitled "Option to Elect Repayment" duly completed and
signed, not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (provided that this Security and form
duly completed and signed are received by the Company by such fifth Business
Day). Any such election shall be irrevocable. The address to which such
deliveries are to be made is JPMorgan Chase Bank, [Attention: Institutional
Trust Services, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇] (or at
such other places as the Company or the Trustee shall notify the Holder of this
Security). All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Security for repayment will be determined by the
Company, whose determination will be final and binding. Notwithstanding the
foregoing, (x) if this Security is a Global Security, the option of the Holder
to elect repayment may be exercised in accordance with any policies and
procedures of the Depositary for this Security at least 15 calendar days prior
to the applicable Repayment Date and (y) whether or not this Security is a
Global Security, the option of the Holder to elect repayment may be exercised in
any such manner as the Company may approve.
6. Transfer and Exchange
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this
(Reverse of Security continued on next page)
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series and of like tenor, of Authorized Denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different Authorized Denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes (subject to Sections 305 and 307 of the Indenture),
whether or not this Security be overdue, and neither the Company nor the Trustee
nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be
subject to the provisions of the Indenture relating to Global Securities,
including the limitations in Section 305 thereof on transfers and exchanges of
Global Securities.
7. Defeasance
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture. If so specified on the face
hereof, either or both of such provisions are applicable to this Security, as so
specified.
8. Remedies
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall
(Reverse of Security continued on next page)
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not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein. No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of (and premium, if any) and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
9. Modification and Waiver
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions (i) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected under the Indenture, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and (ii) permitting the Holders of a majority in principal amount of
the Securities at the time Outstanding of any series to be affected under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration o 10. transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Governing Law
This Security and the Indenture shall be governed by and construed
in accordance with the laws of the State of New York.
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CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
UNIVERSAL CORPORATION
MEDIUM-TERM NOTE, SERIES C
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the
Company to repay the Security referred to in this notice (or the portion thereof
specified below) at the applicable Repayment Price, together with interest to
the Repayment Date, all as provided for in such Security, to the undersigned,
whose name, address, telephone number and social security or other identifying
number are as follows:
________________________________________________________________________________
(please print name of the undersigned)
________________________________________________________________________________
(please print address of the undersigned)
________________________________________________________________________________
(please print telephone number and social security or other identifying number
of the undersigned)
If such Security provides for more than one Repayment Date, the
undersigned requests repayment on the earliest Repayment Date after the
requirements for exercising this option have been satisfied, and references in
this notice to the Repayment Date mean such earliest Repayment Date. Terms used
in this notice that are defined in such Security are used herein as defined
therein.
For such Security to be repaid the Company must receive at the
applicable address of the Trustee set forth below or at such other place or
places of which the Company shall from time to time notify the Holder of such
Security, on any Business Day not later than the 15th or earlier than the 25th
calendar day prior to the Repayment Date (or, if either such calendar day is not
a Business Day, the next succeeding Business Day), (i) such Security, with this
"Option to Elect Repayment" form duly completed and signed, or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc., or a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the Holder of such Security, (b)
the principal amount of such Security and the amount of such Security to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby and (d) a guarantee stating that such Security to be repaid with the
form entitled "Option to Elect Repayment" on the
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addendum to the Security duly completed and signed will be received by the
Company not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (provided that such Security and form
duly completed and signed are received by the Company by such fifth Business
Day). The address to which such deliveries are to be made is:
JPMorgan Chase Bank
Attention: Institutional Trust Services
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or at such other place as the Company or the Trustee shall notify the holder of
such Security.
If less than the entire principal amount of such Security is to be
repaid, specify the portion thereof (which shall equal any Authorized
Denomination) that the Holder elects to have repaid:
______________________
and specify the denomination or denominations (which shall equal any Authorized
Denomination) of the Security or Securities to be issued to the Holder in
respect of the portion of such Security not being repaid (in the absence of any
specification, one Security will be issued in respect of the portion not being
repaid):
______________________
Date: _______________ ____________________________________________________
Notice: The signature to this Option to Elect
Repayment must correspond with the name of the
Holder as written on the face of such Security in
every particular without alteration or enlargement
or any other change whatsoever.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Security, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_________________________________
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________
/________________/
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
________________________________________________________________________________
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________________________________
________________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:______________
Signature Guaranteed
__________________________ ____________________________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must
correspond with the name
of the Holder as written
upon the face of the attached Security in
every particular, without alteration or
enlargement or any change whatever.
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