$489,400,000
Boise Cascade Corporation
Medium-Term Notes
AGENCY AGREEMENT
May 12, 1998
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Salomon Brothers Inc,
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Dear Sirs:
1. Introduction. Boise Cascade Corporation, a Delaware corporation (the
"Issuer"), confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") with respect to the issue and sale from time to time
by the Issuer of its medium-term notes offered under the Prospectus, dated
February 25, 1998, as amended and supplemented by the Prospectus Supplement,
dated May , 1998, as may be further amended or supplemented from time to
time (the "Prospectus Supplement"), registered under the registration statement
referred to in Section 2(a) (any such medium-term notes offered under the
Prospectus Supplement being hereinafter referred to as the "Securities", which
expression shall, if the context so admits, include any permanent global
Security). Securities may be sold pursuant to Section 3 of this Agreement in an
aggregate amount not to exceed the amount of Registered Securities (as defined
in Section 2(a) hereof) registered pursuant to such registration statement
reduced by the aggregate amount of any other Registered Securities sold
otherwise than pursuant to Section 3 of this Agreement. The Securities will be
issued under an indenture, dated as of October 1, 1985, as supplemented by a
First Supplemental Indenture, dated as of December 20, 1989, and a Second
Supplemental Indenture, dated as of August 1, 1990 (collectively, the
"Indenture"), between the Issuer and Xxxxxx Guaranty Trust Company of New York,
as trustee. U.S. Bank Trust National Association, became successor trustee (the
"Trustee") under such Indenture.
The Securities shall have the maturity ranges, annual interest rates or
interest rate formulas, if any, redemption, repayment or sinking fund provisions
and other terms set forth in the Prospectus referred to in Section
2(a) as it may be amended or supplemented from time to time, including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"). Securities will be issued, and
the terms thereof established, from time to time by the Issuer in accordance
with the Indenture and the Procedures (as defined in Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer represents
and warrants to, and agrees with, each Agent as follows:
(a) A registration statement (No. 333-41033, including a prospectus,
relating to debt securities of the Issuer, including the Securities
("Registered Securities"), has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under the Securities
Act of 1933 (the "Act"). Such registration statement, as amended as of the
Commencement Date (as defined in Section 3(e) hereof), is hereinafter
referred to as the "Registration Statement", and the prospectus included in
such Registration Statement, as supplemented as of the Commencement Date,
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus". Any reference in this Agreement to
amending or supplementing the Prospectus shall be deemed to include the
filing of materials incorporated by reference in the Prospectus after the
Commencement Date and any reference in this Agreement to any amendment or
supplement to the Prospectus shall be deemed to include any such materials
incorporated by reference in the Prospectus after the Commencement Date.
(b) On the effective date of the registration statement relating to the
Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the rules and regulations of the Commission
(the "Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the Commencement Date, the Registration Statement and the Prospectus, and
at each of the times of acceptance and of delivery referred to in Section
6(a) hereof and at each of the times of amendment or supplementing referred
to in Section 6(b) hereof (the Commencement Date and each of such times of
amendment or supplementing referred to in Section 6(b) hereof being herein
sometimes referred to as a "Representation Date"), the Registration
Statement and the Prospectus as then amended or supplemented will conform
in all respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in
or omissions from any of such documents based upon written information
furnished to the Issuer by any Agent specifically for use therein.
-2-
3. Appointment as Agents; Agreement of Agents; Solicitations as Agents.
(a) Subject to the terms and conditions stated herein, the Issuer
hereby appoints each of the Agents as an agent of the Issuer for the purpose of
soliciting or receiving offers to purchase the Securities from the Issuer by
others. So long as this Agreement shall remain in effect with respect to any
Agent, the Issuer may, without the consent of any such Agent, accept offers to
purchase Securities otherwise than through one of the Agents; provided, that,
the Issuer shall notify the Agents of any such transaction promptly after its
consummation. The Issuer also may (i) sell the Securities directly to investors
on its own behalf without employing an intermediary who takes a position in the
Securities or (ii) sell at any time any Registered Securities in a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of such Registered Securities. The Issuer
expressly reserves the right, upon fifteen days' prior written notice to each
Agent, to appoint other persons, partnerships or corporations ("Additional
Agents") to act as its agent to solicit offers for the purchase of Notes;
provided, each Additional Agent shall be named in the Prospectus and shall
execute this Agreement and become a party hereto; thereafter the term Agents as
used in this Agreement shall mean the Agents and such Additional Agents.
(b) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, each Agent
agrees, as agent of the Issuer, to use reasonable efforts when requested by the
Issuer to solicit offers to purchase the Securities upon the terms and
conditions set forth in the Prospectus, as from time to time amended or
supplemented.
Upon receipt of notice from the Issuer as contemplated by Section 4(b)
hereof, each Agent shall suspend its solicitation of offers to purchase
Securities until such time as the Issuer shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 4(b) and shall have advised such Agent that
such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. Upon receipt of at least one Business Day's prior
notice from the Issuer, the Agents will forthwith suspend solicitation of offers
to purchase Securities from the Issuer until such time as the Issuer has advised
the Agents that such solicitation may be resumed. For the purpose of the
foregoing sentence, "Business Day" shall mean any day that is not a Saturday or
Sunday, and that in The City of New York is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
close.
The Agents are authorized to solicit offers to purchase Securities only
in a minimum aggregate amount of $1,000, and only in fully registered form in
denominations of $1,000 and integral multiples thereof, and at a purchase price
which, unless otherwise specified in the applicable Pricing Supplement, shall be
equal to 100% of the principal amount thereof. Each Agent shall
-3-
communicate to the Issuer, orally or in writing, each reasonable offer to
purchase Securities received by it as agent. The Issuer shall have the sole
right to accept offers to purchase the Securities and may reject any such offer,
in whole or in part. Each Agent shall have the right, in its discretion
reasonably exercised, without notice to the Issuer, to reject any offer to
purchase Securities received by it, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Issuer, until such Security shall have been delivered to the purchaser thereof
against payment by such purchaser.
(c) At the time of delivery of, and payment for, any Securities sold by
the Issuer as a result of a solicitation made by, or offer to purchase received
by, an Agent, the Issuer agrees to pay such Agent a commission in accordance
with the schedule set forth in Exhibit A hereto.
(d) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Agents and the
Issuer. The initial Procedures, which are set forth in Exhibit B hereto, shall
remain in effect until changed by agreement among the Issuer and the Agents.
Each Agent and the Issuer agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Issuer will furnish to the Trustee a copy of the Procedures as
from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall be
delivered at the office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, not later than 10:00 A.M., New York City time, on the date of this
Agreement or at such other location or later time as may be mutually agreed by
the Issuer and the Agents, which in no event shall be later than the time at
which the Agents commence solicitation of purchases of Securities hereunder,
such time and date being herein called the "Commencement Date".
4. Certain Agreements of the Issuer. The Issuer agrees with the Agents
that it will furnish to Xxxxxxxx & Xxxxxxxx, counsel for the Agents, one signed
copy of the Registration Statement, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) During each Marketing Period (as defined in Section 4(b) hereof),
the Issuer will advise each Agent promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will afford the
Agents a reasonable opportunity to comment on any such proposed amendment
or supplement (other than (i) any Pricing Supplement that relates to
Securities not purchased through or by such Agent or (ii) pursuant to any
filing made in the normal course in compliance with Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), copies of which will be forwarded to each
-4-
Agent at the time of such filing); and the Issuer will also advise each
Agent of the filing and effectiveness of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will
consult with the Agents to prevent the issuance of any such stop order and
to obtain its lifting, if issued.
(b) If, during any period when either the Issuer shall not have
suspended solicitations of offers to purchase Securities or a prospectus
relating to the Securities is required to be delivered under the Act (any
such period being referred to herein as a "Marketing Period"), any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary 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 it is necessary at any time to amend the Prospectus
to comply with the Act, the Issuer will promptly notify each Agent to
suspend solicitation of offers to purchase the Securities; and if the
Issuer shall decide to amend or supplement the Registration Statement or
the Prospectus, it will promptly advise each Agent by telephone (with
confirmation in writing) and, subject to the provisions of subsection (a)
of this Section, will promptly prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Notwithstanding the foregoing,
if, at the time of any notification to suspend solicitations, any Agent
shall own any of the Securities with the intention of reselling them, or
the Issuer has accepted an offer to purchase Securities but the related
settlement has not occurred, the Issuer, subject to the provisions of
subsection (a) of this Section, will promptly prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) During each Marketing Period, the Issuer will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, during each
Marketing Period, on or prior to the date on which the Issuer makes any
announcement to the general public concerning earnings or concerning any
other event which is required to be described, or which the Issuer proposes
to describe, in a document filed pursuant to the Exchange Act, the Issuer
will furnish the information contained or to be contained in such
announcement to each Agent, confirmed in writing and, subject to the
provisions of subsections (a) and (b) of this Section, will cause the
Prospectus to be amended or supplemented to reflect the information
contained in such announcement. During each Marketing Period, the Issuer
also will furnish each Agent with copies of all significant corporate press
releases or announcements to the general public. During each Marketing
Period, the Issuer will immediately notify each Agent of any downgrading in
the rating of any debt securities of the Issuer or any proposal to
downgrade the rating of any debt securities of the Issuer by Xxxxx'x
Investors Services, Inc. or Standard & Poor's Ratings Group, or any
-5-
public announcement that either organization has under surveillance or
review its rating of any debt securities of the Issuer (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading of such rating), as soon as the
Issuer learns of such downgrading, proposal to downgrade or public
announcement.
(d) As soon as practicable, but not later than 16 months after the date
of each acceptance by the Issuer of an offer to purchase Securities
hereunder, the Issuer will make generally available to its security holders
an earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration statement
relating to the Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Issuer's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such acceptance, which will satisfy the provisions of
Section 11(a) of the Act. It is understood that compliance by the Issuer
with Rule 158 under the Act will satisfy the Issuer's obligations pursuant
to this Section 4(d).
(e) The Issuer will furnish to each Agent copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents (including any Pricing
Supplement), in each case as soon as available and in such quantities as
are reasonably requested.
(f) The Issuer will arrange for the qualification of the Securities for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Agents designate and will continue such
qualifications in effect so long as required for the distribution.
(g) So long as any Securities are outstanding, the Issuer will furnish
to the Agents, (i) as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year, (ii) as
soon as available, a copy of each report or definitive proxy statement of
the Issuer filed with the Commission under the Exchange Act or mailed to
stockholders, and (iii) from time to time, such other publicly available
information concerning the Issuer as the Agents may reasonably request.
(h) The Issuer will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse each Agent for any
expenses (including fees and disbursements of counsel) incurred by it in
connection with qualification of the Securities for sale and determination
of their eligibility for investment under the laws of such jurisdictions as
such Agent may designate and the preparation of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating of the
Securities, for filing fees, if any, of the National Association of
-6-
Securities Dealers, Inc. relating to the Securities, for expenses incurred
by each Agent in distributing the Prospectus and all supplements thereto
(including any Pricing Supplement), any preliminary prospectuses and any
preliminary prospectus supplements to such Agent, for costs incurred by
each Agent and consented to by the Issuer in advertising any offering of
Securities and for each Agent's reasonable expenses (including the
reasonable fees and disbursements of one counsel to the Agents) incurred in
connection with the establishment or maintenance of the program
contemplated by this Agreement or otherwise in connection with the
activities of the Agents under this Agreement.
5. Conditions of Obligations. The obligation of each Agent, as agent of
the Issuer, under this Agreement at any time to solicit offers to purchase the
Securities is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer herein, to the accuracy, on each
such date, of the statements of the Issuer's officers made pursuant to the
provisions hereof, to the performance, on or prior to each such date, by the
Issuer of its obligations hereunder, and to each of the following additional
conditions precedent:
(a) The Prospectus, as amended or supplemented as of any Representation
Date or date of such solicitation, as the case may be, shall have been
filed with the Commission in accordance with the Rules and Regulations and
no stop order suspending the effectiveness of the Registration Statement or
of any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Issuer or
any Agent, shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such solicitation,
as the case may be, shall contain any untrue statement of fact which, in
the opinion of any Agent, is material or omits to state a fact which, in
the opinion of any Agent, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) No event shall have occurred resulting in (i) the closing of the
New York Stock Exchange, (ii) the general suspension of trading on such
Exchange or the material limiting of such trading, (iii) the general
establishment of minimum prices by such Exchange or by the Commission, (iv)
the declaration of a bank moratorium by authorities of the United States or
of the State of New York, (v) any downgrading in the rating accorded the
Company's senior debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(1) of Regulation C, or (vi) the outbreak or
escalation of major hostilities involving the Armed Forces of the United
States or the declaration by the United States of a national emergency or
war, if, in the good faith judgment of the Agent, the effect
-7-
of any event described in this clause (vi) on the financial markets is such
that it is impracticable or inadvisable to solicit offers to purchase the
Securities.
(d) At the Commencement Date, the Agents shall have received an
opinion, dated the Commencement Date, of the General Counsel or an
Associate General Counsel for the Issuer, to the effect that:
(i) The Issuer has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority under such laws to own its
properties and conduct its business as described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by the Issuer and has been duly qualified under the Trust
Indenture Act, and the Indenture constitutes a valid and legally
binding instrument 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;
(iii) Any series of Securities established on or prior to the date
of such opinion has 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 completed, executed, authenticated and issued in
accordance with the Indenture and delivered against payment as
contemplated by this Agreement, such Security will constitute a valid
and legally binding obligation of the Issuer entitled to the benefits
provided by the Indenture, 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, it being understood that such counsel may
(a) assume that at the time of the issuance, sale and delivery of each
Security the authorization of such series will not have been modified
or rescinded and there will not have occurred any change in law
affecting the validity, legally binding character or enforceability of
such Security and (b) assume that neither the issuance, sale and
delivery of any Security, nor any of the terms of such Security, nor
compliance by the Issuer with such terms, will violate any applicable
law, any agreement or instrument then binding upon the Issuer or any
restriction imposed by any court or governmental body having
jurisdiction over the Issuer;
(iv) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such
-8-
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has been issued
and no proceedings for that purpose have been instituted or are pending
or contemplated under the Act, and the registration statement relating
to the Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the Commencement Date,
and any amendment or supplement thereto, as of its date, complied as to
form in all material respects with the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; and while such
counsel has not independently verified the accuracy, completeness or
fairness of such statements and takes no responsibility therefor, such
counsel has no reason to believe that such registration statement as of
its effective date, the Registration Statement or the Prospectus, as of
the Commencement Date, or any such amendment or supplement, as of its
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; the descriptions in the
Registration Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as required
in all material respects, nor of any contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus which are not described as required in all material
respects; it being understood that such counsel need express no opinion
as to the financial statements or other financial data contained in the
Registration Statement or the Prospectus;
(v) The Issuer has the power and authority (corporate and other)
to own its properties and conduct its business in all material respects
as described in the Prospectus; and
(vi) This Agreement has been duly authorized, executed and
delivered by the Issuer.
(e) At the Commencement Date, the Agents shall have received a
certificate, of either the Chairman of the Board of Directors, the
President or a Vice President of the Issuer, and of either the principal
financial or accounting officer of the Issuer, dated such Commencement
Date, to the effect (i) that the representations and warranties on the part
of the Issuer herein are true and correct as of such Commencement Date with
the same force and effect as if made on that date, and (ii) that the Issuer
has performed all its obligations hereunder to be performed at or prior to
that date, and as to such other matters as the Agents may reasonably
request.
-9-
(f) At the Commencement Date, the Agents shall have received a letter,
dated the Commencement Date, of the Issurer's independent public
accountants in form and substance satisfactory to the Agents.
(g) The Agents shall have received from Xxxxxxxx & Xxxxxxxx, counsel
for the Agents, such opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Issuer, the validity of the Securities,
the Registration Statement, the Prospectus and other related matters as
they may require, and the Issuer shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
The Issuer will furnish the Agents with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the time
of such acceptance and a covenant that such representations and warranties
will be true and correct at the time of delivery to the purchaser of the
Securities relating to such acceptance as though made at and as of each
such time, it being understood that such representations and warranties
shall relate to the Registration Statement and the Prospectus as amended or
supplemented at each such time. Each such acceptance by the Issuer of an
offer for the purchase of Securities shall be deemed to constitute an
additional representation, warranty and agreement by the Issuer that, as of
the settlement date for the sale of such Securities, after giving effect to
the issuance of such Securities, of any other Securities to be issued on or
prior to such settlement date and of any other Registered Securities to be
issued and sold by the Issuer on or prior to such settlement date, the
aggregate amount of Registered Securities (including any Securities) which
have been issued and sold by the Issuer will not exceed the amount of
Registered Securities registered pursuant to the Registration Statement.
(b) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented (including the
filing with the Commission of any document incorporated by reference into
the Registration Statement, other than documents not containing financial
statements, and excluding Pricing Supplements), the Issuer shall, unless
otherwise waived by the Agents, (A) concurrently with such amendment or
supplement or (B) if such amendment or supplement was not filed during a
Marketing Period, on or before the first day of the next succeeding
Marketing Period, furnish the Agents with a certificate, dated the date of
delivery thereof, of either the Chairman of the Board of Directors, the
President or a Vice President of the Issuer, and of either the principal
financial officer, principal accounting officer or the Treasurer of the
Issuer, in form satisfactory to the Agents, to the effect that the
-10-
statements contained in the certificate covering the matters set forth in
Section 5(e) hereof which was last furnished to the Agents are true and
correct at the time of such amendment or supplement, as though made at and
as of such time or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(e); provided, however,
that any certificate furnished under this Section 6(b) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at the
time of delivery of such certificate and, in the case of the matters set
forth in clause (ii) of Section 5(e), to the time of delivery of such
certificate.
(c) During each Marketing Period, at each Representation Date referred
to in Section 6(b), the Issuer shall, unless otherwise waived by the
Agents, (A) concurrently with such amendment or supplement or (B) if such
amendment or supplement was not filed during a Marketing Period, on or
before the first day of the next succeeding Marketing Period, furnish the
Agents with a written opinion or opinions, dated the date of such
Representation Date, of counsel for the Issuer, in form reasonably
satisfactory to the Agents, to the effect set forth in Section 5(d) hereof;
provided, however, that to the extent appropriate such opinion or opinions
may reconfirm matters set forth in a prior opinion delivered under Section
5(d) or this Section 6(c); provided further, however, that any opinion or
opinions furnished under this Section 6(c) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date and shall state that the Securities sold in the
relevant Applicable Period have been duly executed, authenticated, issued
and delivered and constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, subject only to the
exceptions set forth in clause (iii) of Section 5(d) hereof, and conform to
the description thereof contained in the Prospectus as amended or
supplemented at the relevant settlement date or dates for the sale of such
Securities. For the purpose of this Section 6(c), "Applicable Period" shall
mean with respect to any opinion delivered on a Representation Date the
period commencing on the date of the most recent prior opinion delivered
under Section 5(d) or this Section 6(c) and ending on such Representation
Date.
(d) During each Marketing Period, at each Representation Date referred
to in Section 6(b) on which the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial
information, the Issuer shall, unless otherwise waived by the Agents, cause
its independent public accountants to furnish the Agents, (A) concurrently
with such amendment or supplement or (B) if such amendment or supplement
was not filed during a Marketing Period, on or before the first day of the
next succeeding Marketing Period, a letter, addressed jointly to the Issuer
and the Agents and dated the date of such Representation Date, in form and
substance satisfactory to the Agents; provided, however, that to the extent
appropriate such letter may reconfirm matters set forth in a prior letter
delivered pursuant to Section 5(f) or this Section 6(d); provided further,
however, that any
-11-
letter furnished under this Section 6(d) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Issuer.
(e) On each settlement date for the sale of Securities, the Issuer
shall, if requested by an Agent that solicited or received the offer to
purchase any Securities being delivered on such settlement date, furnish
such Agent with a written opinion of counsel of the Issuer, dated the date
of delivery thereof, in form satisfactory to such Agent, to the effect set
forth in clauses (i), (ii) and (iii) of Section 5(d) hereof; provided,
however, that any opinion furnished under this Section 6(e) shall relate to
the Prospectus as amended or supplemented at such settlement date and shall
state that the Securities being sold by the Issuer on such settlement date,
when delivered against payment therefor as contemplated by this Agreement,
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Issuer enforceable
in accordance with their terms, subject only to the exceptions as to
enforcement set forth in clause (iii) of Section 5(d) hereof, and will
conform to the description thereof contained in the Prospectus as amended
or supplemented at such settlement date.
(f) The Issuer agrees that any obligation of a person who has agreed to
purchase Securities to make payment for and take delivery of such
Securities shall be subject to (i) the accuracy, on the related settlement
date fixed pursuant to the Procedures, of the Issuer's representation and
warranty deemed to be made to the Agents pursuant to the last sentence of
subsection (a) of this Section 6, and (ii) the satisfaction, on such
settlement date, of each of the conditions set forth in Sections 5(a), (b)
and (c), it being understood that under no circumstance shall any Agent
have any duty or obligation to exercise the judgment permitted under
Section 5(b) or (c) on behalf of any such person.
7. Indemnification and Contribution.
(a) The Issuer 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 any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Agent for any legal or other
expenses reasonably incurred by such Agent in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Issuer will not be liable to such Agent in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
-12-
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents in reliance upon and in conformity with
written information furnished to the Issuer by such Agent specifically for use
therein and provided, further, that the indemnity agreement contained in this
paragraph in respect of any preliminary prospectus or preliminary prospectus
supplement shall not inure to the benefit of any Agent on account of any such
losses, claims, damages, or liabilities (or actions in respect thereof), arising
from the sale of Securities to any person if such Agent shall have failed to
send or give to such person (i) with or prior to the written confirmation of
such sale, a copy of the Prospectus or the Prospectus as amended or
supplemented, if any amendments or supplements thereto shall have been furnished
at or prior to the time of written confirmation of the sale involved, or (ii)
with or prior to the delivery of such Securities to such person, a copy of any
amendment or supplement to the Prospectus which shall have been furnished
subsequent to such written confirmation and prior to the delivery of such
Securities to such person, to the extent that any such loss, claim, damage, or
liability results from an untrue statement or an omission which was corrected in
the Prospectus or the Prospectus as amended or supplemented.
(b) Each Agent will indemnify and hold harmless the Issuer against any
losses, claims, damages or liabilities to which the Issuer 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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the 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 reliance upon and in
conformity with written information furnished to the Issuer by such Agent
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Issuer in connection with investigating or defending
any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may 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
-13-
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall be liable for any
compromise or settlement of any such action effected without its consent.
(d) If the indemnification provided for in subsection (a) or (b) above
is for any reason, other than as specified in such subsections, held by a court
to be unavailable and the Company or any Agent has been required to pay damages
as a result of a determination by a court that the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus supplement, contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, then the Company shall contribute to the
damages paid by the Agents, and the Agents shall contribute to the damages paid
by the Company, but in each case only to the extent that such damages arise out
of or are based upon such untrue statement or omission, in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agents on the other from the offering of the Securities, and the
relative fault of the Company on the one hand and the Agents on the other in
connection with the statements or omissions which resulted in such damages as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Agents on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total agency
commissions received by the Agents, in each case as set forth in the Prospectus.
The relative fault of the Company on the one hand and the Agents on the other
shall be determined by reference to, among other things, whether the untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Company or the Agents and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Agents agree that it
would not be just and equitable if their respective obligations to contribute
pursuant to this subsection (d) were to be determined by pro rata allocation of
the aggregate damages (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this subsection
(d). For purposes of this subsection (d), the term "damages" shall include any
legal or other expenses reasonably incurred by the Company or any of the Agents
in connection with investigating or defending against any action or claim which
is the subject of the contribution provisions of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Agents shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities offered by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue statement or 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 Agents' obligations in this
subsection (d) to contribute are several and not joint.
-14-
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls each
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which each Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Issuer, to each officer of the Issuer who has signed the
Registration Statement and to each person, if any, who controls the Issuer
within the meaning of the Act.
8. Status of Each Agent. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than offers to purchase pursuant to Section 11),
each Agent is acting individually and not jointly and is acting solely as agent
for the Issuer and not as principal. Each Agent will make reasonable efforts to
assist the Issuer in obtaining performance by each purchaser whose offer to
purchase Securities from the Issuer has been solicited by such Agent and
accepted by the Issuer, but such Agent shall have no liability to the Issuer in
the event any such purchase is not consummated for any reason. If the Issuer
shall default on its obligations to deliver Securities to a purchaser whose
offer it has accepted, the Issuer (i) shall hold the Agents harmless against any
loss, claim or damage arising from or as a result of such default by the Issuer,
and (ii) in particular, shall pay to the Agents any commission to which they
would be entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Agent, the
Issuer or any of their respective representatives, officers or directors or any
controlling person and will survive delivery of and payment for the Securities.
If this Agreement is terminated pursuant to Section 10 or for any other reason,
the Issuer shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 4(h) and the obligations of the Issuer under Sections
4(d) and 4(g) and the respective obligations of the Issuer and the Agents
pursuant to Section 7 shall remain in effect. In addition, if any such
termination shall occur either (i) at a time when any Agent shall own any of the
Securities with the intention of reselling them or (ii) after the Issuer has
accepted an offer to purchase Securities and prior to the related settlement,
the obligations of the Issuer under the last sentence of Section 4(b), under
Sections 4(a), 4(c), 4(e) and 4(f) and, in the case of a termination occurring
as described in (ii) above, under Sections 3(c), 6(a), 6(e) and 6(f) and under
the last sentence of Section 8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at any
time by the Issuer as to any Agent or, in the case of any Agent, by such Agent
insofar as this Agreement relates to such Agent, upon the giving of one day's
written notice of such termination to the other parties hereto. Any settlement
with respect to Securities placed by an Agent occurring after
-15-
termination of this Agreement shall be made in accordance with the Procedures
and each Agent agrees, if requested by the Issuer, to take the steps therein
provided to be taken by such Agent in connection with such settlement.
11. Purchases as Principal. From time to time, any Agent may agree with
the Issuer to purchase Securities from the Issuer as principal and (unless the
Issuer and such Agent may otherwise agree) such purchase shall be made in
accordance with the terms of a separate agreement (a "Purchase Agreement") to be
entered into between such Agent and the Issuer in the form attached hereto as
Exhibit C. A Purchase Agreement, to the extent set forth therein, may
incorporate by reference specified provisions of this Agreement.
If the Issuer and any Agent do not enter into a Purchase Agreement with
respect to any purchase of Securities by such Agent as principal, the following
provisions shall apply.
For each purchase of Securities by any Agent as principal that is made
orally and not pursuant to a Purchase Agreement or other written agreement (an
"Oral Purchase Agreement"), the Issuer agrees to pay such Agent a commission (or
grant an equivalent discount) in accordance with the schedule set forth in
Exhibit A hereto on the related settlement date for such Securities, unless
otherwise agreed to.
Any Oral Purchase Agreement shall be deemed to have incorporated by
reference Sections 3(d), 4, 6, 7, 12 and 13 hereof, the first and last sentences
of Section 9 hereof and, to the extent applicable, the Procedures, except that
(i) the phrase "jointly with any other indemnifying party similarly notified" in
Section 7(c) hereof and the last sentence of Section 7(d) hereof shall not be
applicable to any Oral Purchase Agreement; and (ii) the term "this Agreement",
as used in Section 7(d) hereof, shall be deemed to refer to such Oral Purchase
Agreement (and not this Agreement) except that in the fifth sentence such term
shall be deemed to refer to this Agreement.
The obligation of such Agent to purchase Securities as principal
pursuant to an Oral Purchase Agreement shall be subject to the accuracy on the
related settlement date of the representations and warranties of the Issuer
contained in Section 2 hereof (it being understood that such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended and supplemented at such settlement date) and the performance and
observance by the Issuer of all covenants and agreements contained in Sections 4
and 6 hereof. The obligation of such Agent to purchase Securities as principal
pursuant to an Oral Purchase Agreement shall (unless the Issuer and such Agent
otherwise agree) also be subject to the following conditions unless otherwise
waived:
(a) The satisfaction, on such settlement date, of each of the
conditions set forth in subsections (a) and (b) and (d) through (g) of
Section 5 hereof (it being understood that each document so required to be
delivered shall be dated such settlement date and that each such condition
and the statements contained in each such document that relate to the
-16-
Registration Statement or the Prospectus shall be deemed to relate to the
Registration Statement or the Prospectus, as the case may be, as amended
and supplemented at the time of settlement on such settlement date and
except that the opinion described in Section 5(d) hereof shall be modified
so as to state that the Securities being sold on such settlement date, when
delivered against payment therefor as provided in such Oral Purchase
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, subject only to the
exceptions set forth in clause (iii) of Section 5(d) hereof, and will
conform to the description thereof contained in the Prospectus as amended
or supplemented at such settlement date);
(b) Between the time of entering into such Oral Purchase Agreement and
such settlement date there shall not have occurred any of the following:
(i) a general suspension or material limitation in trading of securities on
the New York Stock Exchange; (ii) a declaration of a bank moratorium by
authorities of the United States or of the State of New York; (iii) the
general establishment of minimum prices by the New York Stock Exchange or
by the Commission; or (iv) the outbreak or escalation of major hostilities
involving Armed Forces of the United States or the declaration by the
United States of a national emergency or war, if, in the good faith
judgment of such Agent, the effect of any event described in this clause
(iv) on the financial markets is such that it is impracticable or
inadvisable to proceed with completion of the sale of and payment for the
Securities;
(c) Between the time of entering into such Oral Purchase Agreement and
such settlement date there shall not have been any change in the capital
stock or short-term or long-term indebtedness for borrowed money of the
Company and its subsidiaries on a consolidated basis, or any change
(financial or otherwise) in, or any development involving a prospective
change (financial or otherwise) in or affecting, the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries on a consolidated basis or the general affairs of the Company
and its subsidiaries considered as a whole, except as set forth or
contemplated in the Prospectus as of the date of such Oral Purchase
Agreement, which in the judgment of such Agent is material and adverse; and
(d) Between the time of entering into such Oral Purchase Agreement and
such settlement date no downgrading shall have occurred in the rating
accorded the Company's senior debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(1) of Regulation C.
The Issuer agrees that between the date of any Oral Purchase Agreement
and the related settlement date, it will not offer or sell, or enter into any
agreement to sell, any debt securities of the Issuer in the United States, other
than sales of Securities, borrowings under the Issuer's revolving credit
-17-
agreements and lines of credit, the private placement of securities and
issuances of the Issuer's commercial paper.
If for any reason any Agent's purchase of Securities pursuant to an
Oral Purchase Agreement is not consummated, the Issuer shall remain responsible
for the expenses to be paid or reimbursed by the Issuer pursuant to Section 4
hereof and the respective obligations of the Issuer and such Agent pursuant to
Section 7 hereof shall remain in effect. If for any reason any Agent's purchase
of Securities pursuant to an Oral Purchase Agreement is not consummated other
than because of such Agent's default or a failure to satisfy a condition set
forth in clause (b), (c) or (d) of this Section 11, the Issuer shall reimburse
such Agent, severally, for all out-of-pocket expenses reasonably incurred by
such Agent in connection with the offering of such Securities, and not otherwise
required to be reimbursed pursuant to Section 4 hereof.
The principal amount of Securities to be purchased by any Agent
pursuant to an Oral Purchase Agreement, the interest rate of such Securities or
index pursuant to which the interest rate of such Securities shall be
determined, the price to be paid to the Issuer for such Securities, the time and
date of delivery of and payment for such Securities and the other Purchase
Information with respect to such Securities referred to under the caption "Part
I: Administrative Procedures for Certificated Notes -- Details for Settlement"
or "Part II: Administrative Procedures for Book-Entry Notes -- Settlement
Procedures" in the Procedures shall be agreed to and shall form a part of such
Oral Purchase Agreement.
12. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to Xxxxxxx, Xxxxx & Co. shall be directed to it at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: [Xx. Xxxxxx X. Xxxxxx]; to Salomon Brothers
Inc. shall be directed to it at Xxxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Medium-Term Note Group and notices to the Issuer shall be
directed to it at Boise Cascade Corporation, 0000 Xxxx Xxxxxxxxx Xxxxxx (83702),
X.X. Xxx 00, Xxxxx, Xxxxx 00000, Attention: General Counsel; or in the case of
any party hereto, to such other address or person as such party shall specify to
each other party by a notice given in accordance with the provisions of this
Section 12. Any such notice shall take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(f), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
14. Governing Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such executed counterparts shall together
constitute one and the same Agreement.
-18-
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
BOISE CASCADE CORPORATION
By:____________________________
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the
date first above written:
XXXXXXX, SACHS & CO.
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
SALOMON BROTHERS INC
By: ____________________________
Name:
Title:
-20-
EXHIBIT A
The Issuer agrees to pay each Agent a commission equal to the following
percentage of the principal amount of Securities sold to purchasers solicited by
such Agent:
Commission Rate
(as a percentage of
Term principal amount)
---- -----------------
9 months to less than 12 months .125%
12 months to less than 18 months .150
18 months to less than 24 months .200
24 months to less than 30 months .250
30 months to less than 3 years .300
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 7 years .500
7 years to less than 10 years .550
10 years to less than 20 years .600
20 years to 30 years .750
more than 30 years To be negotiated
EXHIBIT B
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes due nine months or more from their issue date
(the "Notes") are to be offered from time to time on a continuing basis by Boise
Cascade Corporation (the "Issuer"). Xxxxxxx, Xxxxx & Co., and Salomon Brothers
Inc as agents (individually, an "Agent" and collectively, the "Agents"), have
each agreed to use reasonable efforts to solicit offers to purchase the Notes.
Neither Agent will be obligated to purchase Notes for its own account. The Notes
are being sold pursuant to an Agency Agreement, dated May 12, 1998 (the "Agency
Agreement"), among the Issuer and the Agents, and will be issued pursuant to an
Indenture, dated as of October 1, 1985, as supplemented by a First Supplemental
Indenture, dated as of December 20, 1989, and a Second Supplemental Indenture,
dated as of August 1, 1990 (collectively, the "Indenture"), between the Issuer
and Xxxxxx Guaranty Trust Company of New York, as trustee with U.S. Bank Trust
National Association as successor trustee (the "Trustee"). The Notes will rank
equally and ratably with all other unsecured and unsubordinated indebtedness of
the Issuer and will have been registered with the Securities and Exchange
Commission (the "Commission"). For a description of the terms of the Notes and
the offering and sale thereof, see the sections entitled "Description of Notes"
and "Plan of Distribution of Notes" in the Prospectus Supplement relating to the
Notes, dated May [12], 1998, attached hereto and hereinafter referred to as the
"Prospectus Supplement", and the sections entitled "Description of Debt
Securities" and "Plan of Distribution" in the Prospectus relating to the Notes,
dated February 25, 1998, attached hereto and hereinafter referred to as the
"Prospectus".
The Notes will be represented by either book-entry notes delivered to
The Depository Trust Company ("DTC") or its nominee and recorded in the
book-entry system maintained by DTC ("Book-Entry Notes") or a certificate
delivered to the Holder thereof or a Person designated by such Holder
("Certificated Notes"). Owners of "Book-Entry Notes" will not be entitled to
receive a certificate representing such Notes. Notes for which interest is
calculated on the basis of a fixed interest rate are referred to herein as
"Fixed Rate Notes". Notes for which interest is calculated at a rate or rates
determined by reference to an interest rate formula are referred to herein as
"Floating Rate Notes".
Administrative procedures and specific terms of the offering are
explained below -- Part I indicating specific procedures for Certificated Notes,
Part II indicating specific procedures for Book-Entry Notes, and Part III
indicating procedures applicable to all Notes. Administrative and record keeping
responsibilities will be handled for the Issuer by its Treasury Department. The
Issuer will advise the Agents in writing of those persons handling
administrative responsibilities with whom the Agents are to communicate
regarding offers to purchase Notes and the details of their delivery.
Unless otherwise defined herein, terms defined in the Indenture (or any
applicable Board Resolution referred to therein related to the Notes) shall be
used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Issue Date
Each Certificated Note will be dated the date of its authentication.
Each Certificated Note will also bear an original issue date (the "Issue Date")
which, with respect to any such Note (or portion thereof), shall mean the date
of its original issuance and shall be specified therein. The Issue Date will
remain the same for all Certificated Notes subsequently issued upon transfer,
exchange or substitution of a Certificated Note, regardless of their dates of
authentication.
Price to Public; Denominations; Registration
Except as otherwise specified in a Pricing Supplement, each
Certificated Note will be issued at 100% of principal amount. The denominations
of the Certificated Notes will be $1,000 and any larger denomination which is an
integral multiple of $1,000. Certificated Notes will be issued only in fully
registered form.
Transfers and/or Exchanges
A Certificated Note may be presented for transfer or exchange at the
principal corporate trust office in The City of New York of the Trustee.
Certificated Notes will be exchangeable for other Certificated Notes of any
authorized denominations and having identical terms and provisions and for a
like aggregate principal amount, upon surrender of the Certificated Notes to be
exchanged at the corporate trust office of the Trustee. Certificated Notes will
not be exchangeable for Book-Entry Notes.
Interest Payments
Interest on each Certificated Note will be calculated and paid in the
manner described in such Note and in the Prospectus Supplement. Unless otherwise
specified therein, each payment of interest on a Certificated Note will include
interest accrued from and including its original issue date, or from and
including the last date to which interest has been paid or duly provided for, as
the case may be, to but excluding the next Interest Payment Date or the Maturity
date of such Note; provided, however, that a Floating Rate Certificated Note
which has a rate of interest that is reset daily or weekly will include interest
accrued from and including its original issue date or from but excluding the
last preceding Regular Record Date, as the case may be, to, and including, the
next succeeding Regular Record Date (as defined below), except that at Maturity,
the interest payable will include interest accrued to, but excluding, the
Maturity Date. Unless otherwise specified therein, each Certificated Note will
bear interest (i) in the case of Fixed Rate Notes, at the annual rate stated on
the face thereof, payable semiannually in arrears on [February 1] and [August 1]
of each year and at Maturity and (ii) in the case of Floating Rate Notes, at a
rate determined pursuant to the formula stated on the face thereof. Interest
will be payable to the person in whose name the Certificated Note is registered
at the
-2-
close of business on the Regular Record Date (described below) next preceding
the Interest Payment Date; provided, however, that interest payable at Maturity
will be payable to the person to whom principal shall be payable. The first
payment of interest on any Note originally issued between a Regular Record Date
and an Interest Payment Date will be made on the Interest Payment Date following
the next succeeding Regular Record Date to the person in whose name such Note is
registered on the Regular Record Date for such succeeding interest payment date.
If any Interest Payment Date specified on the face of a Fixed Rate Certificated
Note would otherwise be a day that is not a Business Day with respect to such
Note, then the interest payable on such Interest Payment Date shall be payable
on the next succeeding Business Day and no interest on such payment shall accrue
for the period from and after the Interest Payment Date. Interest payments will
be made on Floating Rate Certificated Notes monthly, quarterly, semiannually, or
annually, in arrears, and at Maturity. Interest will be payable, in the case of
Floating Rate Certificated Notes with a daily or weekly Interest Reset Date, on
the third Wednesday of March, June, September and December of each year, as
specified in the Note; with a monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March, June, September and
December of each year, as specified in the applicable Note; with a quarterly
Interest Reset Date, on the third Wednesday of March, June, September and
December of each year; with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified in the applicable Note; and with an annual
Interest Reset Date, on the third Wednesday of the month specified in the
applicable Note; provided, however, that if any interest payment date specified
on the face of a Floating Rate Certified Note would otherwise be a day that is
not a Business Day with respect to such Note, then such interest payment date
shall be postponed to the next succeeding Business Day, except that in the case
of a Floating Rate Note for which the Base Rate is LIBOR, if such Business Day
is in the succeeding calendar month, such interest payment date will be the
immediately preceding Business Day. All interest payments (excluding interest
payments made at Maturity) will be made by check mailed to the person entitled
thereto as provided above, except that interest payments may be made by wire
transfer to the person entitled thereto as provided above if written
instructions have been received by the Trustee no later than fifteen days prior
to the applicable Interest Payment Date, and arrangements satisfactory to the
Issuer, the Trustee and such person have been made.
Promptly following each Record Date, the Trustee will furnish the
Issuer with a list of interest payments (to the extent then known) due on the
following Interest Payment Date by telephone (confirmed in writing), facsimile
transmission or other acceptable written means. The Trustee will provide, on or
about the first Business Day of each month, to the Issuer's Treasury Department
a list of the principal and interest to be paid on Certificated Notes maturing
in the next succeeding month. The Trustee will assume responsibility for
withholding taxes on interest paid as required by law to the extent Holders have
not produced a taxpayer identification number ("TIN").
Redemption/Repayment
The Notes will be subject to repayment at the option of the Holders
thereof in accordance with the terms of the Notes on the Repayment Date, if any.
-3-
The Repayment Date and Repayment Price, if any, will be fixed at the time of
sale and set forth in the applicable Pricing Supplement and in the applicable
Note. If no Repayment Date is indicated with respect to a Note, such Note will
not be repayable at the option of the Holder prior to Maturity.
The Notes will be subject to redemption in whole or in part (subject to
applicable minimum denominations), at the option of the Issuer on and after the
Redemption Date, if any. The Redemption Date and Redemption Price, if any, will
be fixed at the time of sale and set forth in the applicable Note. If no
Redemption Date is indicated with respect to a Note, such Note will not be
redeemable prior to Maturity.
Payment at Maturity
Upon presentation of each Certificated Note at Maturity, the Trustee
(or a duly authorized Paying Agent) will pay the principal amount thereof,
together with accrued interest due at Maturity. Such payment will be made in
immediately available funds, provided that the Certificated Note is presented in
time for the Trustee (or any such Paying Agent) to make payment in such funds in
accordance with its normal procedures. The Issuer will provide the Trustee (and
any such Paying Agent) with funds available for immediate use for such purpose.
Certificated Notes presented at Maturity will be cancelled by the Trustee as
provided in the Indenture.
Determination of Settlement Date
The receipt of immediately available funds by the Issuer in payment for
a Certificated Note and the authentication and issuance of such Note shall, with
respect to such Note, constitute "settlement". All offers accepted by the Issuer
will be settled on the third Business Day next succeeding the date of acceptance
unless otherwise agreed by any purchaser and the Issuer. The settlement date
shall be specified upon acceptance of an offer. The Trustee will deliver the
Certificated Notes to the Presenting Agent no later than 2:15 p.m., New York
City time, on that day.
Details for Settlement
For each offer accepted by the Issuer, the Agent who presented such
offer (the "Presenting Agent") will communicate to the Issuer's Treasury
Department, prior to 3:00 p.m., New York City time, on the Business Day
preceding the settlement date, by facsimile transmission or other acceptable
means, the following information (the "Purchase Information"):
1. Exact name in which the Certificated Note or Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different, the address for
delivery, notices and payment of principal and interest.
3. TIN of registered owner.
-4-
4. Principal amount of each Certificated Note in authorized denominations
to be delivered to the registered owner.
5. In the case of a Fixed Rate Note, the interest rate of each
Certificated Note; in the case of a Floating Rate Note, the Initial
Interest Rate (if known at such time), Index Maturity, Interest Rate
Basis, Spread or Spread Multiplier (if any), Maximum Interest Rate (if
any), Minimum Interest Rate (if any), Interest Reset Period, Interest
Reset Dates, Interest Payment Dates, and the Calculation Agent, in each
case, to the extent applicable.
6. Stated Maturity of each Certificated Note.
7. Redemption and/or repayment provisions, if any, of each Certificated
Note.
8. Trade Date of each Certificated Note.
9. Settlement date (Issue Date) for each Certificated Note.
10. Presenting Agent's Commission (to be paid in the form of a discount
from the proceeds remitted to the Issuer on settlement).
11. Price.
12. Any additional applicable terms of each Certificated Note.
The Issue Date of, and the settlement date for, Certificated Notes will
be the same. Before accepting any offer to purchase Certificated Notes to be
settled in less than three Business Days, the Issuer will verify that the
Trustee will have adequate time to prepare and authenticate the Certificated
Notes.
All Note issuance instructions shall be given by the Issuer by
telephone (confirmed in writing), facsimile transmission or other acceptable
written means. Instructions shall be given by the Issuer or by any person,
including any employee of an Agent, who has been designated by the Issuer in
writing to the Trustee as a person authorized to give such instructions
hereunder.
Immediately after receiving the details for each offer from the
Presenting Agent, but in no event later than 3:00 p.m. on the Business Day
preceding the Settlement Date, the Issuer will, after recording the details and
any necessary calculations, communicate the Purchase Information by facsimile
transmission or other acceptable written means, to the Trustee. Each such
instruction given by the Issuer to the Trustee will constitute a continuing
representation and warranty by the Issuer to the Trustee and the Agents that (i)
the issuance and delivery of such Certificated Notes have been duly and validly
authorized by the Issuer and (ii) such Certificated Notes, when completed,
authenticated and delivered, will constitute the valid and legally binding
-5-
obligation of the Issuer. The Trustee will assign to and enter on each
Certificated Note a transaction number.
The Issuer will deliver to the Trustee a preprinted four-ply packet for
such Certificated Note, which packet will contain the following documents in
forms that have been approved by the Issuer, the Agents and the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Issuer.
The Trustee will complete such Certificated Note and will authenticate
such Certificated Note and deliver it (with the Confirmation) and Stubs One and
Two to such Agent, and such Agent will acknowledge receipt of the Certificated
Note by stamping or otherwise marking Stub One and returning it to the Trustee.
The Trustee will send Stub Three to the Issuer by first-class mail.
Confirmation
For each accepted offer, the Presenting Agent will issue a confirmation
to the purchaser, with a copy to the Issuer's Treasury Department, setting forth
the Purchase Information and delivery and payment instructions; provided,
however, that, in the case of the confirmation issued to the purchaser, no
confirmation shall be delivered to the purchaser prior to the delivery of the
Prospectus referred to in Part III.
Settlement; Note Deliveries and Cash Payment
The Issuer will deliver to the Trustee at the commencement of the
program and from time to time thereafter a supply of duly executed Certificated
Notes with pre-printed control numbers adequate to implement the program. Upon
the receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Determination of Terms Certificate and
verification thereof, the Trustee will cause the Certificated Notes to be
completed and authenticated and hold the Certificated Notes for delivery.
The Trustee will deliver the Certificated Notes in accordance with
instructions from the Issuer, to the Presenting Agent, as the Issuer's agent,
for the benefit of the purchaser only against receipt. The Presenting Agent will
acknowledge receipt of the Certificated Note through a broker's receipt.
Delivery of the Certificated Note by the Trustee will be made only against such
acknowledgement of receipt from the Presenting Agent. Upon the Presenting
Agent's determination that such Certificated Note has been authenticated,
delivered and completed as aforesaid, the Presenting Agent will make, or cause
to be made, payment to the Issuer at such account of the Issuer as it may
specify in writing, in immediately available funds, of an amount equal to the
principal
-6-
amount of such Certificated Notes, less the applicable commission. If the
Presenting Agent in any instance advances its own funds, the Issuer shall not
use any of the proceeds of such sale to acquire securities.
The Presenting Agent, as the Issuer's agent, will deliver the
Certificated Notes (with the written confirmation provided for above) to the
purchaser thereof against payment therefor by such purchaser. Delivery of any
confirmation or Certificated Note will be made in compliance with "Delivery of
Prospectus" in Part III.
Fails
In the event that a purchaser shall fail to accept delivery of and make
payment for a Certificated Note on the settlement date, the Presenting Agent
will notify the Trustee and the Issuer by telephone, confirmed in writing. If
the Certificated Note has been delivered to the Presenting Agent, as the
Issuer's agent, the Presenting Agent will return such Certificated Note to the
Trustee. If funds have been advanced by the Presenting Agent for the purchase of
such Certificated Note, the Trustee will, immediately upon receipt of such
Certificated Note, debit the account of the Issuer for the amount so advanced
and the Issuer will refund the payment previously made by the Presenting Agent
in immediately available funds. Such payment will be made on the settlement
date, if possible, and in any event not later than the Business Day following
the settlement date. If such fail shall have occurred for any reason other than
the failure of the Presenting Agent to provide the Purchase Information to the
Trustee and the Issuer or to provide a confirmation to the purchaser, the Issuer
will reimburse the Presenting 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
Issuer.
Immediately upon receipt of the Certificated Note in respect of which
the fail occurred, the Trustee will cause the Security Registrar to make
appropriate entries to reflect the fact that the Certificated Note was never
issued and the Certificated Note will be canceled and disposed of as provided in
the Indenture.
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its obligations under a Letter of Representation (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC dated as of
May __, 1998 and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance
All Book-Entry Notes having the same Issue Date, interest rate, Stated
Maturity and redemption and repayment terms, if any, will be represented
-7-
initially by a single depository note (the "Global Note") in fully registered
form without coupons representing up to $400,000,000 aggregate principal amount
of all such Book-Entry Notes which are Fixed Rate Notes that have the same
Original Issue Date, Interest Rate, Interest Payment Dates, Stated Maturity, and
redemption and repayment provisions, if any, or a single Global Note in a fully
registered form without coupons representing up to $400,000,000 aggregate
principal amount of all such Book-Entry Notes which are Floating Rate Notes
having the same Original Issue Date, redemption and repayment provisions,
Interest Rate Basis, Initial Interest Rate, Index Maturity, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if any), Maximum Interest Rate (if
any), Interest Determination Dates, Interest Reset Dates, Interest Payment Dates
and Stated Maturity Date (collectively, the "Terms"). Each Global Note will be
dated and issued as of the date of its authentication by the Trustee. Each
Global Note will bear an "Original Issue Date", which will be (i) with respect
to an original Global Note (or any portion thereof), its Issue Date, and (ii)
following a consolidation of Global Notes, the most recent Interest Payment Date
to which interest has been paid or duly provided for on the predecessor Global
Notes, regardless of the date of authentication of such subsequently issued
Global Note. No Global Note will represent both Fixed Rate and Floating Rate
Book-Entry Notes or any Certificated Note.
Identification Numbers
The Issuer has arranged with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers), such series consisting of
approximately 900 CUSIP numbers and relating to Global Notes representing
Book-Entry Notes. The Issuer has obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers and has delivered it to the Trustee
and DTC. The Trustee will assign CUSIP numbers serially to Global Notes as
described below under Settlement Procedure "C". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the Trustee has assigned
to Global Notes. The Trustee will notify the Issuer at the time when fewer than
100 of the reserved CUSIP numbers remain unassigned to the Global Notes; and the
Issuer will reserve an additional 900 CUSIP numbers for assignment to Global
Notes representing Book-Entry Notes. Upon obtaining such additional CUSIP
numbers, the Issuer shall deliver a list of such additional CUSIP numbers to the
Trustee and DTC.
Registration
Each Global Note will be registered in the name of Cede & Co., as
nominee for DTC, on the Security Register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more indirect participants in
DTC designated by such owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to act as agent or agents for
such owner in connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Note in the account of such
Participants. The ownership interest of such beneficial owner in such Note will
-8-
be recorded through the records of such Participants or through the separate
records of such Participants and one or more indirect participants in DTC.
Transfers
Transfers of a Book-Entry Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
Exchanges
The Trustee may upon notice to the Issuer deliver to DTC and the CUSIP
Service Bureau at any time a written notice of consolidation (a copy of which
shall be attached to the Global Note resulting from such consolidation)
specifying (i) the CUSIP numbers of two or more outstanding Global Notes that
represent Book-Entry Notes having the same Terms, and for which interest has
been paid to the same date, (ii) a date occurring at least thirty days after
such written notice is delivered and at least thirty days before the next
Interest Payment Date for such Notes, on which such Global Notes shall be
exchanged for a single replacement Global Note and (iii) a new CUSIP number to
be assigned to such replacement Global Note. Upon receipt of such a notice, DTC
will send to its Participants (including the Trustee) a written reorganization
notice to the effect that such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the CUSIP Service Bureau a
written notice setting forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP numbers of the Global Notes to
be exchanged will no longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single Global Note bearing the new
CUSIP number and a new Original Issue Date and the CUSIP numbers of the
exchanged Global Notes will, in accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
Redemption/Repayment
The Trustee will comply with the terms of the Letter with regard to
redemptions or repayments of the Book-Entry Notes. If a Global Note is to be
redeemed in part, the Trustee will cancel such Global Note and issue a Global
Note which shall represent the remaining portion of such Global Note and shall
bear the CUSIP number of the canceled Global Note.
Payment Upon Redemption
In the case of Book-Entry Notes stated by their terms to be redeemable
prior to maturity, at least 60 calendar days before the date fixed for
redemption (the "Redemption Date"), the Issuer shall notify the Trustee of the
Issuer's election to redeem such Book-Entry Notes in whole or in part and the
principal amount of such Book-Entry Notes to be so redeemed. At least 30
calendar days but not more than 60 calendar days prior to the Redemption Date,
the Trustee shall notify DTC of the Issuer's election to redeem such Book-Entry
-9-
Notes. The Trustee shall notify the Issuer and DTC of the CUSIP numbers of the
particular Book-Entry Notes to be redeemed either in whole or in part. The
Issuer, the Trustee and DTC will confirm the amounts of such principal and
interest payable with respect to each such Book-Entry Note on or about the fifth
Business Day preceding the Redemption Date of such Book-Entry Note. The Issuer
will pay the Trustee, in accordance with the terms of the Issuing and Paying
Agency Agreement, the principal amount necessary to redeem each such Book-Entry
Note or the applicable portion of each such Book-Entry Note, together with
interest due on such principal amount of each such Book-Entry Note on such
Redemption Date. The Trustee will pay such amount to DTC at the times and in the
manner set forth herein. Promptly after payment to DTC of the principal and
interest due on the Redemption Date for such Book-Entry Note, the Trustee shall
cancel any such Book-Entry Note; the Trustee shall cancel any such Book-Entry
Note redeemed in whole and shall deliver it to the Issuer with an appropriate
debit advice.
Denominations
The denominations of the Book-Entry Notes will be $1,000 or any larger
denomination which is an integral multiple of $1,000. Global Notes will be
denominated in principal amounts not in excess of $400,000,000.
Interest
Interest on each Book-Entry Note will be calculated and paid in the
manner described in such Note and in the Prospectus Supplement. Unless otherwise
specified therein, each payment of interest on a Book-Entry Note will include
interest accrued from and including its original issue date, or from and
including the last date to which interest has been paid or duly provided for, as
the case may be, to but excluding the next interest payment date or the Maturity
Date of such Note; provided, however, that a Floating Rate Book-Entry Note which
has a rate of interest that is reset daily or weekly will include interest
accrued from and including its original issue date or from but excluding the
preceding Regular Record Date, as the case may be, to, and including, the next
succeeding Record Date (as defined below), except that at Maturity, the interest
payable will include interest accrued to, but excluding, the Maturity Date.
Unless otherwise specified therein, each Book-Entry Note will bear interest (i)
in the case of Fixed Rate Notes, at the annual rate stated on the face thereof,
payable semiannually in arrears on [February 1] and [August 1] of each year, and
at Maturity and (ii) in the case of Floating Rate Notes, at a rate determined
pursuant to the formula stated on the face thereof. Interest will be payable to
the person in whose name the Book-Entry Note in registered at the close of
business on the Regular Record Date (described below) next preceding the
Interest Payment Date; provided, however, that interest payable at Maturity will
be payable to the Person to whom the principal of such Note is payable. The
first payment of interest on any Note originally issued between a Regular Record
Date and an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the person in whose name
such Note is registered on the Regular Record Date for such succeeding interest
payment date. If any Interest Payment Date specified on the face of a Fixed Rate
-10-
Book-Entry Note would otherwise be a day that is not a Business Day with respect
to such Note, then the interest payable on such Interest Payment Date shall be
payable on the next succeeding Business Day and no interest on such payment
shall accrue for the period from and after the Interest Payment Date. Interest
payments will be made on Floating Rate Book-Entry Notes monthly, quarterly,
semiannually, or annually, in arrears, and at Maturity. Interest will be
payable, in the case of Floating Rate Book-Entry Notes with a daily or weekly
Interest Reset Date, on the third Wednesday of March, June, September and
December of each year as specified in Settlement Procedure "A" below; with a
monthly Interest Reset Date, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year, as
specified in Settlement Procedure "A" below; with a quarterly Interest Reset
Date, on the third Wednesday of March, June, September, and December of each
year; with a semiannual Interest Reset Date, on the third Wednesday of the two
months specified in Settlement Procedure "A" below; and with an annual Interest
Reset Date, on the third Wednesday of the month specified in Settlement
Procedure "A" below; provided, however, that if any interest payment date
specified on the face of a Floating Rate Book-Entry Note would otherwise be a
day that is not a Business Day with respect to such Note, then such interest
payment date shall be postponed to the next succeeding Business Day, except that
in the case of a Floating Rate Note for which the Base Rate is LIBOR, if such
Business Day is in the succeeding calendar month, such interest payment date
will be the immediately preceding Business Day. Standard & Poor's Corporation
will use the information received in the pending deposit message described under
Settlement Procedure "C" to include the amount of any interest payable and
certain other information regarding the related Global Note in the appropriate
daily or weekly bond report published by Standard & Poor's Corporation.
Notice of Interest Payment and Regular Record Date
To the extent then known, on the first Business Day of March, June,
September, and December of each year, the Trustee will deliver to the Issuer and
DTC a written list of Record Dates and interest payment dates that will occur
with respect to Floating Rate Book-Entry Notes during the six-month period
beginning on such first Business Day.
Payments of Principal and Interest
(a) Payments of Interest Only. Promptly after each Regular Record Date,
the Trustee will deliver to the Issuer and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each Global Note on the
following Interest Payment Date (other than an Interest Payment Date coinciding
with Maturity) and the total of such amounts. The Issuer will confirm with the
Trustee the amount payable on each Global Note on such Interest Payment Date.
DTC will confirm the amount payable on each Global Note on such Interest Payment
Date by reference to the daily or weekly bond reports published by Standard &
Poor's Corporation. The Issuer will pay to the Trustee the total amount of
interest due on such Interest Payment Date (other than at Maturity), and the
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment".
-11-
(b) Payments at Maturity. On or about the first Business Day of each
month, the Trustee will deliver to the Issuer and DTC a written list of
principal and interest to be paid on each Global Note maturing in the following
month. The Issuer, the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each such Global Note on or
about the fifth Business Day preceding the Maturity of such Global Note. The
Issuer will pay to the Trustee, as the paying agent, the principal amount of
such Global Note, together with interest due at such Maturity. Upon surrender of
a Global Note, the Trustee will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment". If any Maturity of a Global
Note representing Book-Entry Notes is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such Maturity. Promptly
after payment to DTC of the principal and interest due at Maturity of such
Global Note, the Trustee will cancel such Global Note and return such Global
Note to the Issuer in accordance with the terms of the Indenture.
(c) Manner of Payment. The total amount of any principal and interest
due on Global Notes on any Interest Payment Date or at Maturity shall be paid by
the Issuer to the Trustee in immediately available funds on such date. The
Issuer will make such payment on such Global Notes by wire transfer to the
Trustee. The Issuer will confirm instructions regarding payment in writing to
the Trustee. Prior to 10:00 a.m. New York City time, on each Maturity Date or as
soon as possible thereafter, the Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each payment of principal
(together with interest thereon) due on Global Notes on any Maturity Date. On
each Interest Payment Date, interest payment shall be made to DTC in same day
funds in accordance with existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the Book-Entry Notes
represented by such Global Notes are recorded in the book-entry system
maintained by DTC. NEITHER THE ISSUER NOR THE TRUSTEE SHALL HAVE ANY DIRECT
RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH PARTICIPANTS OF THE
PRINCIPAL OF AND INTEREST ON THE BOOK-ENTRY NOTES.
(d) Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-Entry Note
will be determined and withheld by the Participant, indirect participant in DTC
or other person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Settlement
The receipt by the Issuer of immediately available funds in payment for
a Book-Entry Note and the authentication and issuance of the Global Note or
Global Notes representing such Note shall constitute "settlement" with respect
to such Book-Entry Note. All orders accepted by the Issuer will be settled on
-12-
the third Business Day from the date of the sale pursuant to the timetable for
settlement set forth below unless the Issuer and the purchaser agree to
settlement on a later date.
Settlement Procedures
Settlement Procedures with regard to each Book-Entry Note sold by the
Issuer through an Agent shall be as follows:
A. Such Agent will advise the Issuer by telephone of the following settlement
information:
1. Registered owner.
2. Address of registered owner and, if different, the address for
delivery, notices and payment of principal and interest.
3. TIN of registered owner.
4. Principal amount.
5. Stated Maturity Date.
6. In the case of a Fixed Rate Note, the interest rate of each
Certificated Note; in the case of a Floating Rate Note, the Initial
Interest Rate (if known at such time), Index Maturity, Interest Rate
Basis, Spread or Spread Multiplier (if any), Maximum Interest Rate (if
any), Minimum Interest Rate (if any), Interest Reset Period, Interest
Reset Dates, Interest Payment Dates, and the Calculation Agent, in each
case, to the extent applicable.
7. Redemption and/or repayment provisions, if any.
8. Trade Date.
9. Settlement date (Issue Date).
10. Agent's commission (expressed as a percentage).
11. Price.
12. Any additional applicable terms.
B. The Issuer will advise the Trustee by telephone (confirmed in writing),
facsimile transmission or by another mutually acceptable method of the
settlement information set forth in Settlement Procedure "A" above and the
name of the applicable Agent. Each such communication by the Issuer shall
constitute a representation and warranty by the Issuer to the Trustee and
each Agent that such Global Note is then, and at the time of issuance and
sale thereof will be, duly authorized for issuance and sale by the Issuer.
-13-
C. The Trustee will assign a CUSIP number to the Global Note representing such
Book-Entry Note and will telephone the Issuer and advise the Issuer of such
CUSIP number and, as soon thereafter as practicable, the Issuer shall
notify the Agent of such CUSIP number. The Trustee will enter a pending
deposit message through DTC's Participant Terminal System, providing the
following settlement information to DTC (which shall route such information
to Standard & Poor's Corporation) and the relevant Agent:
1. The applicable information set forth in Settlement Procedure "A".
2. Initial Interest Payment Date for such Book-Entry Note, number of days
by which such date succeeds the Regular Record Date which, in the case
of Floating Rate Notes which reset daily or weekly, shall be the date 5
calendar days immediately preceding the applicable interest payment
date, and in the case of all other Notes shall be the Regular Record
Date (as defined in the Note), and, if known, the amount of interest
payable on such Interest Payment Date per $1,000 principal amount of
Book-Entry Notes.
3. Identification as either a Fixed Rate Note or a Floating Rate Note.
4. CUSIP number of the Global Note representing such Note.
5. Whether such Global Note will represent any other Book-Entry Note (to
the extent known at such time).
6. Interest payment periods.
7. Numbers of the participant accounts maintained by DTC on behalf of the
Trustee and the Agents.
D. The Trustee will complete and authenticate the Global Note representing
such Note.
E. DTC will credit such Note to the Trustee's participant account at DTC.
F. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to such Agent's participant
account and (ii) debit such Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the price of such Note
less such Agent's commission. The entry of such a deliver order shall
constitute a representation and warranty by the Trustee to DTC that (i) the
Global Note representing such Note has been executed, delivered and
authenticated and (ii) the Trustee is holding such Global Note pursuant to
the Medium-Term Note Certificate Agreement between the Trustee and DTC.
G. Such Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to such Agent's
-14-
participant account and credit such Note to the Participant accounts of the
Participants with respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of such
Agent for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. The Trustee, upon confirming receipt of such funds, will wire transfer the
amount transferred to the Trustee in accordance with Settlement Procedure
"F", in funds available for immediate use, for the account of "Boise
Cascade Corporation", to account no. 00000-00000 at Bank of America, San
Francisco, California (ABA No. 1210-0035-8).
J. Such Agent will confirm the purchase of such Note to the purchaser either
by transmitting to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional delivery system or
by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable
For orders of Book-Entry Notes solicited by an Agent, and accepted by
the Issuer for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth above shall be completed as soon
as possible but not later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the sale date
B 12:00 Noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A", "B" and "C" shall be completed as soon as
practicable but not later than 11:00 a.m., Noon and 2:00 p.m., as the case may
be, on the first Business Day after the sale date.
-15-
If the initial interest rate for a Floating Rate Book-Entry Note has
not been determined at the time that Settlement Procedure "A" is completed, then
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 12:00 Noon and 2:00 p.m., as the case may be,
on the Business Day before the settlement date. Settlement Procedure "H" is
subject to extension in accordance with any extension of Fedwire closing
deadlines and in the other events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, the
Company shall notify the Trustee, and upon receipt of such notice, the Trustee
will deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled settlement date.
Failure to Settle
If the Trustee has not entered an SDFS delivery order with respect to a
Book-Entry Note pursuant to Settlement Procedure "F", then upon written request
(which may be evidenced by telecopy transmission) of the Issuer, the Trustee
shall deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable, but no later than 2:00 p.m. on any Business Day, a withdrawal
message instructing DTC to debit such Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that the Trustee's participant
account contains a principal amount of the Global Note representing such Note
that is at least equal to the principal amount to be debited. If withdrawal
messages are processed with respect to all the Book-Entry Notes represented by a
Global Note, the Trustee will xxxx such Global Note "cancelled", make
appropriate entries in the Trustee's records and send such cancelled Global Note
to the Issuer. The CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If withdrawal messages are processed with respect to one
or more, but not all, of the Book-Entry Notes represented by a Global Note, the
Trustee will exchange such Global Note for two Global Notes, one of which shall
represent such Note or Notes and shall be cancelled immediately after issuance
and the other of which shall represent the remaining Book-Entry Notes previously
represented by the surrendered Global Note and shall bear the CUSIP number of
the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such Note may enter an
SDFS deliver order through DTC's Participant Terminal System debiting such Note
to such Agent's participant account and crediting such Note free to the
participant account of the Trustee and shall notify the Trustee and the Issuer
thereof. Thereafter, the Trustee, (i) will immediately notify the Issuer, once
the Trustee has confirmed that such Note has been credited to its participant
account, and the Issuer shall immediately transfer by Fedwire (immediately
available funds) to such Agent an amount equal to the price of such Note which
was previously sent
-16-
by wire transfer to the account of the Issuer maintained at Bank of America in
accordance with Settlement Procedure "I", and (ii) the Trustee will deliver the
withdrawal message and take the related actions described in the preceding
paragraph. Such debits and credits will be made on the settlement date, if
possible, and in any event not later than 5:00 p.m. on the following Business
Day. If such failure shall have occurred for any reason other than failure by
the applicable Agent to perform its obligations hereunder the Agency Agreement,
the Issuer will reimburse such Agent on an equitable basis for its loss of the
use of funds during the period when the funds were credited to the account of
the Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Note, the Trustee will provide, in accordance with
Settlement Procedures "D" and "E", for the authentication and issuance of a
Global Note representing the other Book-Entry Notes to have been represented by
such Global Note and will make appropriate entries in its records.
-17-
PART III. ADMINISTRATIVE PROCEDURES APPLICABLE TO ALL NOTES
Maturities; Minimum Purchase; Calculation of Interest
Each Note will mature on a date, selected by the purchaser and agreed
to by the Issuer, which will be at least 9 months or more after its Issue Date.
The minimum aggregate amount of Notes which may be offered to any purchaser will
be $1,000. Interest on Fixed Rate Notes (including interest for partial periods)
will be calculated on the basis of a 360-day year of twelve 30-day months.
Interest will not accrue on the 31st day of any month. Interest on Floating Rate
Notes, except as otherwise set forth therein, will be calculated on the basis of
actual days elapsed and a year of 360 days, except that in the case of a
Floating Rate Note for which the Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of days in the year.
Regular Record Dates for Interest
Except as otherwise specified in a Pricing Supplement, the Regular
Record Date for Fixed Rate Notes with respect to any Interest Payment Date shall
be January 16 or July 16. Unless otherwise specified in a Pricing Supplement,
the Regular Record Date with respect to Floating Rate Notes shall be the date 15
calendar days prior to each Interest Payment Date, whether or not such date
shall be a Business Day.
Procedures for Establishing the Terms of the Notes
The Issuer and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of offers
by the Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms, and communicated with the Issuer, if the Issuer plans to
accept an offer to purchase Notes upon such terms, it will prepare a Pricing
Supplement to the Prospectus, as then amended or supplemented, reflecting the
terms of such Notes and, after approval from the Agents, will arrange to have 10
copies of the Pricing Supplement filed with, or transmitted by a means
reasonably calculated to result in filing with, the Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933, as amended (the "Act"), no later
than the fifth Business Day following the date of determination of the
settlement information described below or the date such Pricing Supplement is
first used. The Issuer will supply at least 10 copies of the Prospectus, as then
amended or supplemented, and bearing such Pricing Supplement, to the Agent who
presented such offer (the "Presenting Agent"). No settlements with respect to
Notes upon such terms may occur prior to such transmitting or filing and the
Agents will not, prior to such transmitting or filing, mail confirmations to
customers who have offered to purchase Notes upon such terms. After such
transmitting or filing, sales, mailing of confirmations and settlements may
occur with respect to Notes upon such terms, subject to the provisions of
"Delivery of Prospectus" below.
If the Issuer decides to post rates and a decision has been reached to
change interest rates, the Issuer will promptly notify each Agent. Each Agent
will forthwith suspend solicitation of purchases. At that time, the Agents will
-18-
recommend and the Issuer will establish rates to be so "posted". Following
establishment of posted rates and prior to the transmitting or filing described
in the preceding paragraph, the Agents may only record indications of interest
in purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Issuer, if the Issuer plans to accept an offer at the posted rate, it will
prepare a Pricing Supplement reflecting such posted rates and, after approval
from the Agents, will arrange to have 10 copies of the Pricing Supplement filed
with, or transmitted by means reasonably calculated to result in filing with,
the Commission and will supply at least 10 copies of the Prospectus, as then
amended or supplemented, and bearing such Pricing Supplement, to the Presenting
Agent. No settlements at the posted rates may occur prior to such transmitting
or filing and the Agents will not, prior to such transmitting or filing, mail
confirmations to customers who have offered to purchase Notes at the posted
rates. After such transmitting or filing, sales, mailing of confirmations and
settlements may resume, subject to the provisions of "Delivery of Prospectus"
below.
Outdated Pricing Supplements, and copies of the Prospectus to which
they are attached (other than those retained for files), will be destroyed.
Suspension of Solicitation; Amendment or Supplement
As provided in the Agency Agreement, the Issuer may instruct the Agents
to suspend solicitation of offers to purchase at any time, and upon receipt of
at least one Business Day's prior notice from the Issuer, the Agents will each
forthwith suspend solicitation until such time as the Issuer has advised them
that solicitation of offers to purchase may be resumed.
If the Agents receive the notice from the Issuer contemplated by
Section 4(b) of the Agency Agreement, they will promptly suspend solicitation
and will only resume solicitation as provided in the Agency Agreement. If the
Issuer is required, pursuant to the last sentence of Section 4(b) of the Agency
Agreement, to prepare an amendment or supplement, it will promptly furnish each
Agent with the proposed amendment or supplement; if the Issuer decides to amend
or supplement the Registration Statement or the Prospectus relating to the
Notes, it will promptly advise each Agent and will furnish each Agent with the
proposed amendment or supplement in accordance with the terms of the Agency
Agreement. The Issuer will file such amendment or supplement with the
Commission, provide the Agents with copies of any such amendment or supplement,
confirm to the Agents that such amendment or supplement has been filed with the
Commission and advise the Agents that solicitation may be resumed.
Any such suspension shall not affect the Issuer's obligations under the
Agency Agreement; and in the event that at the time the Issuer suspends
solicitation of offers to purchase there shall be any offers already accepted by
the Issuer outstanding for settlement, the Issuer will have the sole
responsibility for fulfilling such obligations. The Issuer will in addition
promptly advise the Agents and the Trustee if such offers are not to be settled
and if copies of the Prospectus as in affect at the time of the suspension may
not be delivered in connection with the settlement of such offers.
-19-
Acceptance of Offers
Each Agent will promptly advise the Issuer, at its option orally or in
writing, of each reasonable offer to purchase Notes received by it, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, without notice to the Issuer, reject any offer received by it, in
whole or in part. The Issuer will have the sole right to accept offers to
purchase Notes and may reject any such offer, in whole or in part. If the Issuer
accepts or rejects an offer, the Issuer will promptly notify the Agent involved.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof (except as provided below) must be delivered to a
purchaser prior to or together with the earlier of the delivery of (i) the
written confirmation provided for above, and (ii) any Note purchased by such
purchaser. Subject to the foregoing, it is anticipated that delivery of the
Prospectus, confirmation and Notes to the Purchaser will be made simultaneously
at settlement. The Issuer shall ensure that the Presenting Agent receives copies
of the Prospectus and each amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities and within such time limits
as will enable the Presenting Agent to deliver such confirmation or Note to a
purchaser as contemplated by these procedures and in compliance with the first
sentence of this paragraph. If, since the date of acceptance of a purchaser's
offer, the Prospectus shall have been supplemented solely to reflect any sale of
Notes on terms different from those agreed to between the Issuer and such
purchaser or a change in posted rates not applicable to such purchaser, such
purchaser shall not receive the Prospectus as supplemented by such new
supplement, but shall receive the Prospectus as supplemented to reflect the
terms of the Notes being purchased by such purchaser and otherwise as most
recently amended or supplemented on the date of delivery of the Prospectus.
Authenticity of Signatures
The Issuer will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustees' officers, employees
or agents who have been authorized by the Trustee to authenticate Notes, but no
Agent will have any obligation or liability to the Issuer or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Issuer or the Trustee on any Note or Global Note.
Advertising Expenses
The Issuer will determine with the Agents the amount of advertising
that may be appropriate in offering the Notes. Advertising expenses will be paid
by the Issuer.
-20-
Business Day
"Business Day" means any day which is not a Saturday or Sunday and is
not a day on which banking institutions are generally authorized or obligated by
law or executive order to close in The City of New York and, with respect to
LIBOR notes, a London Banking Day. "London Banking Day" means any day on which
dealings in deposits in U.S. Dollars are transacted in the London interbank
market.
Trustee Not to Risk Funds
Nothing herein shall be deemed to require the Trustee to risk or expend
its own funds in connection with any payment made to the Issuer, or the Agents,
or DTC, or any Noteholder, it being understood by all parties that payments made
by the Trustee to the Issuer, or the Agents, or DTC, or any Noteholder shall be
made only to the extent that funds are provided to the Trustee for such purpose.
-21-
PURCHASE AGREEMENT EXHIBIT C
_____________, 19__
Boise Cascade Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx (83702)
X.X. Xxx 00
Xxxxx, Xxxxx 00000
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of
the Securities described in the Agency Agreement dated May 12, 1998 (the "Agency
Agreement"):
Principal Amount $____________
Interest Rate _____%
Maturity Date ___________, 19__
Discount ___% of Principal Amount
Price to be paid to Issuer
[(in immediately available funds)] $____________
[(in New York Clearing House next
day funds)]
Commission to Agent $____________
Settlement Date _____________
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Agency Agreement shall have the same meanings as in the
Agency Agreement. The terms Agent and Agents, as used in the Agency Agreement,
shall be deemed to refer only to the undersigned for purposes of this Agreement.
This Agreement incorporates by reference Sections 3(d), 4, 6, 7, 12 and
13 of the Agency Agreement, the first and last sentences of Section 9 thereof
and, to the extent applicable, the Procedures, except that (i) the phrase
"jointly with any other indemnifying party similarly notified" in Section 7(c)
and the last sentence of Section 7(d) shall not be applicable; and (ii) the term
"this Agreement", as used in Section 7(d) of the Agency Agreement, shall be
deemed to refer to this Agreement (and not the Agency Agreement) except that in
the fifth sentence such term shall be deemed to refer to the Agency Agreement.
[Insert other appropriate changes.] You and we agree to perform, to the extent
applicable, our respective duties and obligations specifically provided to be
performed by each of us in the Procedures.
Our obligation to purchase Securities hereunder is subject to the
accuracy of the above Settlement Date of your representations and warranties
contained in Section 2 of the Agency Agreement (it being understood that such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended at such Settlement Date) and to your performance and
observance of all covenants and agreements contained in Sections 4 and 6
thereof. Our obligation hereunder is also subject to the following conditions
unless otherwise waived:
(a) the satisfaction, at such Settlement Date, of each of the
conditions set forth in subsections (a) and (b) and (d) through (g) of Section 5
of the Agency Agreement (it being understood that each document so required to
be delivered shall be dated such Settlement Date and that each such condition
and the statements contained in each such document that relate to the
Registration Statement or the Prospectus shall be deemed to relate to the
Registration Statement or the Prospectus, as the case may be, as amended or
supplemented at the time of settlement on such Settlement Date and except that
the opinion described in Section 5(d) shall be modified so as to state that the
Securities being sold on such Settlement Date, when delivered against payment
therefor as provided in this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Issuer enforceable in accordance with their terms,
subject only to the exceptions as to enforcement set forth in clause (iii) of
Section 5(d) of the Agency Agreement, and will conform to the description
thereof contained in the Prospectus as amended or supplemented at such
Settlement Date; and
(b) Between the time of entering into such Oral Purchase Agreement and
such Settlement Date there shall not have occurred any of the following: (i) a
general suspension or material limitation in trading of securities on the New
York Stock Exchange; (ii) a declaration of a bank moratorium by authorities of
the United States or of the State of New York; (iii) the general establishment
of minimum prices by the New York Stock Exchange or by the Commission; or (iv)
the outbreak or escalation of major hostilities involving Armed Forces of the
United States or the declaration by the United States of a national emergency or
war, if, in the good faith judgment of such Agent, the effect of any event
described in this clause (iv) on the financial markets is such that it is
impracticable or inadvisable to proceed with completion of the sale of and
payment for the Securities;
(c) Between the time of entering into such Oral Purchase Agreement and
such Settlement Date there shall not have been any change in the capital stock
or short-term or long-term indebtedness for borrowed money of the Company and
its subsidiaries on a consolidated basis, or any change (financial or otherwise)
in, or any development involving a prospective change (financial or otherwise)
in or affecting, the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries on a consolidated basis or the
general affairs of the Company and its subsidiaries considered as a whole,
except as set forth or contemplated in the Prospectus as of the date of such
Oral Purchase Agreement, which in the judgment of such Agent is material and
adverse; and
(d) Between the time of entering into such Oral Purchase Agreement and
such Settlement Date no downgrading shall have occurred in the rating accorded
the Company's senior debt securities by any "nationally recognized statistical
-2-
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(1) of Regulation C.
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the Issuer in
the United States, other than sales of Securities, borrowings under your
revolving credit agreements and lines of credit, the private placement of
securities and issuances of your commercial paper.
If for any reason our purchase of the above Securities is not
consummated, you shall remain responsible for the expenses to be paid or
reimbursed by you pursuant to Section 4 of the Agency Agreement and the
respective obligations of you and the undersigned pursuant to Section 7 shall
remain in effect. If for any reason our purchase of the above Securities is not
consummated other than because of our default or a failure to satisfy a
condition set forth in clause (b), (c) or (d) above, you shall reimburse us,
severally, for all out-of-pocket expenses reasonably incurred by us in
connection with the offering of the above Securities and not otherwise required
to be reimbursed pursuant to Section 4 of the Agency Agreement.
-3-
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
executed counterparts shall together constitute one and the same Agreement.
[(INSERT NAME OF PURCHASER)]
By:______________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
BOISE CASCADE CORPORATION
By:______________________
Name:
Title:
-4-
EXHIBIT D
AMENDMENT
[Insert Title of Security
to be Covered by this Amendment]
The undersigned hereby agree that for the purposes of the issue and
sale of Securities [with respect to which an index is used to determine the
amounts of payments of principal and any premium and interest] (the "Applicable
Securities") pursuant to the Agency Agreement, dated May 12, 1998 (the "Agency
Agreement"), the following additions and modifications shall be made to the
Agency Agreement. The additions and modifications adopted hereby shall be of the
same effect for the sale under the Agency Agreement of all Applicable
Securities, whether offered on an agency or principal basis, but shall be of no
effect with respect to any other Securities.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Agency Agreement shall have the same meanings as in the
Agency Agreement. The terms Agent and Agents, as used in the Agency Agreement,
shall be deemed to refer only to the undersigned Agents for purposes of this
Amendment.
[Insert appropriate additions and modifications to the Agency Agreement
and the Procedures, for example, to opinions of counsel, conditions to
obligations and settlement procedures, according to the customary practice of
the Agents when acting as underwriters in offerings of the Applicable
Securities.]
________________, 19_
BOISE CASCADE CORPORATION
By:______________________
Name:
Title:
[NAME(S) OF AGENT(S) PARTICIPATING IN
THE OFFERING OF APPLICABLE SECURITIES]
By:______________________
Name:
Title:
