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EXHIBIT 1.2
CABOT CORPORATION
$500,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
___________, 199_
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Cabot Corporation, a Delaware corporation (the "Company"), confirms its
agreement with each of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. (each,
an "Agent", and collectively, the "Agents") with respect to the issue and sale
by the Company of its Medium-Term Notes Due Nine Months or More From Date of
Issue (the "Notes"). The Notes are to be issued pursuant to an Indenture, dated
as of December 1, 1987, as supplemented and amended by a First Supplemental
Indenture dated as of June 17, 1992 and a Second Supplemental Indenture dated as
of January 31, 1997, and (collectively and as amended or supplemented from time
to time, the "Indenture"), between the Company and State Street Bank and Trust
Company, as successor trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance and sale of up to U.S. $500,000,000
aggregate initial offering price of Notes (or its equivalent, based upon the
exchange rate on the applicable trade date in such foreign or composite
currencies as the Company shall designate at the time of issuance) to or through
the Agents pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold to or through the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one
or more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-________) [and
pre-effective amendment[s] no[s]. ________ thereto] for the
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registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to any acceptance by
the Company of an offer for the purchase of Notes. Such registration statement
(as so amended, if applicable) has been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement (as so amended, if
applicable) is referred to herein as the "Registration Statement"; and the final
prospectus and all applicable amendments or supplements thereto (including the
final prospectus supplement and pricing supplement relating to the offering of
Notes), in the form first furnished to the applicable Agent(s), are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to any
acceptance by the Company of an offer for the purchase of Notes; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the registration statement became effective and any
prospectus furnished by the Company after the registration statement became
effective and before any acceptance by the Company of an offer for the purchase
of Notes which omitted information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "disclosed", "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
1. APPOINTMENT AS AGENT.
a. APPOINTMENT. Subject to the terms and conditions stated herein
and subject to the reservation by the Company of the right to
sell Notes directly on its own behalf, the Company hereby agrees
that Notes will be sold exclusively to or through the Agents. The
Company agrees that it will not appoint any other agents to act
on its behalf, or to assist it, in the placement of the Notes.
b. SALE OF NOTES. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the
amount which shall be authorized by the Company from time to time
or in excess of the aggregate initial offering price of Notes
registered pursuant to the Registration Statement. The Agents
shall have no responsibility for maintaining records with respect
to the aggregate initial offering price of Notes sold, or of
otherwise monitoring the availability of Notes for sale, under
the Registration Statement.
c. PURCHASES AS PRINCIPAL. The Agents shall not have any obligation
to purchase Notes from the Company as principal. However, absent
an agreement between an Agent and the Company that such Agent
shall be acting solely as an agent for the Company, such Agent
shall be deemed to be
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acting as principal in connection with any offering of Notes by
the Company through such Agent. Accordingly, the Agents,
individually or in a syndicate, may agree from time to time to
purchase Notes from the Company as principal for resale to
investors and other purchasers determined by such Agents. Any
purchase of Notes from the Company by an Agent as principal shall
be made in accordance with Section 3(a) hereof.
d. SOLICITATIONS AS AGENT. If agreed upon between an Agent and the
Company, such Agent, acting solely as an agent for the Company
and not as principal, will solicit offers for the purchase of
Notes. Such Agent will communicate to the Company, orally, each
offer for the purchase of Notes solicited by it on an agency
basis other than those offers rejected by such Agent. Such Agent
shall have the right, in its discretion reasonably exercised, to
reject any offer for the purchase of Notes, in whole or in part,
and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company may accept or reject any
offer for the purchase of Notes, in whole or in part. Such Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer for the purchase of
Notes has been solicited by it on an agency basis and accepted by
the Company. Such Agent shall not have any liability to the
Company in the event that any such purchase is not consummated
for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer has been solicited by
such Agent on an agency basis and accepted by the Company, the
Company shall (i) hold such Agent harmless against any loss,
claim or damage arising from or as a result of such default by
the Company and (ii) pay to such Agent any commission to which it
would otherwise be entitled absent such default.
e. RELIANCE. The Company and the Agents agree that any Notes
purchased from the Company by one or more Agents as principal
shall be purchased, and any Notes the placement of which an Agent
arranges as an agent of the Company shall be placed by such
Agent, in reliance on the representations, warranties, covenants
and agreements of the Company contained herein and on the terms
and conditions and in the manner provided herein.
2. REPRESENTATIONS AND WARRANTIES.
a. The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an
offer for the purchase of Notes (whether to such Agent as
principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through
such Agent as agent) (the date of each such delivery to such
Agent as principal is referred to herein as a "Settlement Date"),
and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (each of the times
referenced above is referred to herein as a "Representation
Date"), as follows:
i. DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF
THE COMPANY. The Company has been duly organized and is
validly existing as a corporation in good standing under
the laws of Delaware with corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into
this Agreement and consummate the transactions contemplated
in the Prospectus; the Company is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the
failure to so qualify or be in good standing would not
result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material
Adverse Effect").
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ii. DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF
SIGNIFICANT SUBSIDIARIES. Each significant subsidiary (as
such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act), if any, and [______]
(each, a "Significant Subsidiary") has been duly organized
and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate
its properties and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a
Material Adverse Effect; the Company owns such amount or
percentage of the outstanding capital stock of its
subsidiaries as it is stated in the Prospectus to own or as
it is assumed to own for purposes of preparing the
financial statements of the Company included in the
Prospectus, free and clear of all liens, encumbrances and
claims, and all such stock is validly issued, fully paid
and nonassessable.
iii. REGISTRATION STATEMENT AND PROSPECTUS. The Company meets
the requirements for use of Form S-3 under the 1933 Act;
the Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933
Act and no stop order suspending the effectiveness of the
Registration Statement (including any Rule 462(b)
Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part
of the Commission for additional information has been
complied with; the Indenture has been duly qualified under
the 1939 Act; at the respective times that the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto (including the filing of
the Company's most recent Annual Report on Form 10-K with
the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration
Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will
comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and did not and will
not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations; each preliminary
prospectus and the Prospectus delivered to the applicable
Agent(s) for use in connection with the offering of Notes
are identical to any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T; and at the date
hereof, at the date of the Prospectus and at each
Representation Date, neither the Prospectus nor any
amendment or supplement thereto included or will include an
untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the
statements therein not misleading; provided, however, that
the representations and warranties in this subsection shall
not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Company in writing by the Agents expressly for use in the
Registration Statement or the Prospectus or to any
statement in or omission from the Statement of Eligibility
and Qualification on Form T-1 of the Trustee.
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iv. INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Prospectus,
at the time they were or are hereafter filed with the
Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act
(the "1934 Act Regulations") and, when read together with
the other information in the Prospectus, at the date
hereof, at the date of the Prospectus and at each
Representation Date, did not and will not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
v. INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus
are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
vi. FINANCIAL STATEMENTS. The consolidated financial statements
of the Company included in the Registration Statement and
the Prospectus, together with the related schedules and
notes, as well as those financial statements, schedules and
notes of any other entity included in the Registration
Statement and the Prospectus, present fairly the
consolidated financial position of the Company and its
subsidiaries, or such other entity, as the case may be, at
the dates indicated and the consolidated statement of
operations, stockholders' equity and cash flows of the
Company and its subsidiaries, or such other entity, as the
case may be, for the periods specified; such financial
statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except
for the notes to any unaudited financial statements; the
supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance
with GAAP the information required to be stated therein;
the selected financial data and the summary financial
information included in the Registration Statement and the
Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the
audited financial statements included in the Registration
Statement and the Prospectus; and any pro forma
consolidated financial statements of the Company and its
subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly
the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to
therein.
vii. NO MATERIAL CHANGES. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (1) there
has been no event or occurrence that would result in a
Material Adverse Effect and (2) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company
and its subsidiaries considered as one enterprise.
viii. AUTHORIZATION, ETC. OF THIS AGREEMENT, THE INDENTURE AND
THE NOTES. This Agreement has been duly authorized,
executed and delivered by the Company; the Indenture has
been duly authorized, executed and delivered by the Company
and will be a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by
(1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors'
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rights generally, (2) general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law), (3) requirements that a
claim with respect to any debt securities issued under the
Indenture that are payable in a foreign or composite
currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant
to applicable law or (4) governmental authority to limit,
delay or prohibit the making of payments outside the United
States; the Notes have been duly authorized by the Company
for offer, sale, issuance and delivery pursuant to this
Agreement and, when issued, authenticated and delivered in
the manner provided for in the Indenture and delivered
against payment of the consideration therefor, will
constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of
creditors' rights generally, (2) general equitable
principles (regardless of whether enforcement is considered
in a proceeding in equity or at law), (3) requirements that
a claim with respect to any Notes payable in a foreign or
composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (4) governmental
authority to limit, delay or prohibit the making of
payments outside the United States; the Notes will be
substantially in a form previously certified to the Agents
and contemplated by the Indenture; and each holder of Notes
will be entitled to the benefits of the Indenture.
ix. DESCRIPTIONS OF THE INDENTURE AND THE NOTES. The Indenture
and the Notes conform and will conform in all material
respects to the statements relating thereto contained in
the Prospectus and are substantially in the form filed or
incorporated by reference, as the case may be, as an
exhibit to the Registration Statement. Immediately after
any sale of Notes by the Company hereunder, the aggregate
amount of Notes which shall have been issued and sold by
the Company hereunder and of any debt securities of the
Company (other than such Notes) that shall have been issued
and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the
Registration Statement.
x. ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which
have not been so described and filed as required.
xi. ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its subsidiaries is in violation of the provisions
of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this
Agreement, the Indenture, the Notes and any other agreement
or instrument entered into or issued or to be entered into
or issued by the Company in connection with the
transactions contemplated by the Prospectus, the
consummation of the transactions contemplated in the
Prospectus (including the issuance and sale of the Notes
and the use of proceeds therefrom as described in the
Prospectus) and the compliance by the Company with its
obligations hereunder and under the Indenture, the Notes
and such other agreements or instruments have been duly
authorized by all necessary corporate
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action and do not and will not, whether with or without the
giving of notice or the passage of time or both, conflict
with or constitute a breach of, or default or event or
condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries (a
"Repayment Event") under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of
its subsidiaries pursuant to, any Agreements and
Instruments, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their assets, properties or
operations.
xii. ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company
threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as
stated therein), or which may reasonably be expected to
result in a Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect
the assets, properties or operations thereof, the
performance by the Company of its obligations under this
Agreement, the Indenture and the Notes or the consummation
of the transactions contemplated in the Prospectus; and the
aggregate of all pending legal or governmental proceedings
to which the Company or any of its subsidiaries is a party
or of which any of their respective assets, properties or
operations is the subject which are not described in the
Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, may
not reasonably be expected to result in a Material Adverse
Effect.
xiii. TITLE TO PROPERTY. The Company and its subsidiaries have
good and marketable title to all property that is described
in the Prospectus as owned by the Company and its
subsidiaries or necessary to conduct its business as
described in the Prospectus, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as
otherwise stated in the Registration Statement and the
Prospectus or (B) those which are not material and do not,
singly or in the aggregate, materially interfere with or
adversely affect the use made and proposed to be made of
such property by the Company or any of its subsidiaries.
xiv. ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except as
would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or
administrative interpretation thereof including any
judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human
health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials")
or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"),
(B) the Company and its subsidiaries have all
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permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or
any of its subsidiaries and (D) there are no events or
circumstances that may reasonably be expected to form the
basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or
governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
xv. NO FILINGS, REGULATORY APPROVALS ETC. No filing with, or
approval, authorization, consent, license, registration,
qualification, order or decree of, any court or
governmental authority or agency, domestic or foreign, is
necessary or required for the performance by the Company
of its obligations under this Agreement, the Indenture and
the Notes or in connection with the transactions
contemplated in the Prospectus, except such as have been
obtained under the 1933 Act or the 1939 Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities
or Blue Sky laws in connection with the solicitation by
any Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as
principal, as the case may be, in each case in the manner
contemplated hereby.
xvi. INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and
the application of the net proceeds therefrom as described
in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
xvii. COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, as amended (the "Commodity
Exchange Act"), and the rules and regulations of the
Commodity Futures Trading Commission under the Commodity
Exchange Act (the "Commodity Exchange Act Regulations").
xviii. RATINGS. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes,
are rated [ ] by Xxxxx'x Investors Service, Inc. and
[BBB+] by Standard & Poor's Ratings Service, or such other
rating as to which the Company shall have most recently
notified the Agents pursuant to Section 4(a) hereof.
b. ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer
of the Company or any of its subsidiaries and delivered to one or
more Agents or to counsel for the Agents in connection with an
offering of Notes to one or more Agents as principal or through
an Agent as agent shall be deemed a representation and warranty
by the Company to such Agent or Agents as to the matters covered
thereby on the date of such certificate[ and, unless subsequently
amended or supplemented, at each Representation Date subsequent
thereto].
3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
a. PURCHASES AS PRINCIPAL. Notes purchased from the Company by the
Agents, individually or in a syndicate, as principal shall be
made in accordance with terms agreed upon between such Agent or
Agents and the Company (which terms, unless otherwise agreed,
shall, to the extent applicable, include those terms specified in
Exhibit A hereto and shall be agreed upon orally, with written
confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's
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commitment to purchase Notes as principal shall be deemed to have
been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms
and conditions herein set forth. Unless the context otherwise
requires, references herein to "this Agreement" shall include the
applicable agreement of one or more Agents to purchase Notes from
the Company as principal. Each purchase of Notes by one or more
Agents as principal, unless otherwise agreed, shall be at a
discount from the principal amount of each such Note equivalent
to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in
connection with the resale of the Notes purchased by them as
principal and may allow all or any portion of the discount
received from the Company in connection with such purchases to
such brokers or dealers. At the time of each purchase of Notes
from the Company by one or more Agents as principal, such Agent
or Agents shall specify the requirements for the officers'
certificate, opinion of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an
agreement pursuant to which such Agents agree to purchase Notes
from the Company as principal and one or more of such Agents
shall fail at the Settlement Date to purchase the Notes which it
or they are obligated to purchase (the "Defaulted Notes"), then
the nondefaulting Agents shall have the right, within 24 hours
thereafter, to make arrangements for one of them or one or more
other Agents or underwriters to purchase all, but not less than
all, of the Defaulted Notes in such amounts as may be agreed upon
and upon the terms herein set forth; provided, however, that if
such arrangements shall not have been completed within such
24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes
does not exceed 10% of the aggregate principal amount of Notes to
be so purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions
that their respective initial underwriting obligations bear to
the underwriting obligations of all nondefaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such
agreement shall terminate without liability on the part of any
nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any
defaulting Agent from liability in respect of its default. In the
event of any such default which does not result in a termination
of such agreement, either the nondefaulting Agents or the Company
shall have the right to postpone the Settlement Date for a period
not exceeding seven days in order to effect any required changes
in the Registration Statement or the Prospectus or in any other
documents or arrangements.
b. SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and
conditions herein set forth, when agreed by the Company and an
Agent, such Agent, as an agent of the Company, will use its
reasonable efforts to solicit offers for the purchase of Notes
upon the terms set forth in the Prospectus. The Agents are not
authorized to appoint sub-agents with respect to Notes sold
through them as agent. All Notes sold through an Agent as agent
will be sold at 100% of their principal amount unless otherwise
agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of offers for the purchase of Notes through
an Agent, as an agent of the Company, commencing at any time for
any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend
solicitation of offers for the purchase of Notes from the
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Company until such time as the Company has advised such Agent
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the
principal amount of each Note sold by the Company as a result of
a solicitation made by such Agent, as an agent of the Company, as
set forth in Schedule A hereto.
c. ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in
Exhibit A hereto (as applicable) shall be agreed upon between the
Company and the applicable Agent(s) and specified in a pricing
supplement to the Prospectus (each, a "Pricing Supplement") to be
prepared by the Company in connection with each sale of Notes.
Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S.
$1,000 or any larger amount that is an integral multiple of U.S.
$1,000. Administrative procedures with respect to the issuance
and sale of the Notes (the "Procedures") shall be agreed upon
from time to time among the Company, the Agents and the Trustee.
The Agents and the Company agree to perform, and the Company
agrees to cause the Trustee to agree to perform, their respective
duties and obligations specifically provided to be performed by
them in the Procedures.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent as follows:
a. NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration
Statement or the filing of any amendment or supplement to the
Prospectus (other than any amendment or supplement thereto
providing solely for the determination of the variable terms of
the Notes or relating solely to the offering of securities other
than the Notes), (ii) the receipt of any comments from the
Commission, (iii) any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, (iv) the issuance
by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of any order preventing or
suspending the use of any preliminary prospectus, or of the
initiation of any proceedings for that purpose or (v) any change
in the rating assigned by any nationally recognized statistical
rating organization to the Program or any debt securities
(including the Notes) of the Company, or the public announcement
by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative
implications, its rating of the Program or any such debt
securities, or the withdrawal by any nationally recognized
statistical rating organization of its rating of the Program or
any such debt securities. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
b. FILING OR USE OF AMENDMENTS. The Company will give the Agents
advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of
additional Notes, any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment or supplement to the prospectus
included in the Registration Statement at the time it became
effective or to the Prospectus (other than an amendment or
supplement thereto providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of
securities other than the Notes), whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish to the Agents copies
of any such
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document a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such
document to which the Agents or counsel for the Agents shall
object.
c. DELIVERY OF THE REGISTRATION STATEMENT. The Company has furnished
to each Agent and to counsel for the Agents, without charge,
signed and conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed and conformed copies of all consents and
certificates of experts. The Registration Statement and each
amendment thereto furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
d. DELIVERY OF THE PROSPECTUS. The Company will deliver to each
Agent, without charge, as many copies of each preliminary
prospectus as such Agent may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each Agent, without
charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
e. PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold to or through one or more
Agents pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the
Agents. The Company will deliver such Pricing Supplement no later
than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for
the purchase of such Notes and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the
close of business of the Commission on the fifth business day
after the date on which such Pricing Supplement is first used.
f. REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (m) of this Section 4, if at any time
during the term of this Agreement any event shall occur or
condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Agents or counsel for the Company,
to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company shall give immediate notice, confirmed in writing, to the
Agents to cease the solicitation of offers for the purchase of
Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Company will promptly
prepare and file with the Commission, subject to Section 4(b)
hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration
Statement and Prospectus comply with such requirements, and the
Company will furnish to the Agents, without charge, such number
of copies of such amendment or supplement as the Agents may
reasonably request. In addition, the Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of
each offering of Notes.
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g. PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (m) of this Section 4, on or
prior to the date on which there shall be released to the general
public interim financial statement information related to the
Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause
the Prospectus to be timely amended or supplemented to include
financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall
be necessary for an understanding thereof or as shall be required
by the 1933 Act or the 1933 Act Regulations.
h. PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (m) of this Section 4, on or
prior to the date on which there shall be released to the general
public financial information included in or derived from the
audited consolidated financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information
to the Agents, confirmed in writing, and shall cause the
Prospectus to be timely amended or supplemented to include such
audited consolidated financial statements and the report or
reports, and consent or consents to such inclusion, of the
independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an
understanding of such consolidated financial statements or as
shall be required by the 1933 Act or the 1933 Act Regulations.
i. EARNINGS STATEMENTS. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
j. REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
k. RESTRICTION ON OFFERS AND SALES OF SECURITIES. Unless otherwise
agreed upon between one or more Agents acting as principal and
the Company, between the date of the agreement by such Agent(s)
to purchase the related Notes from the Company and the Settlement
Date with respect thereto, the Company will not, without the
prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise
dispose of, any debt securities of the Company (other than the
Notes that are to be sold pursuant to such agreement or
commercial paper in the ordinary course of business).
l. USE OF PROCEEDS. The Company will use the net proceeds received
by it from the issuance and sale of the Notes in the manner
specified in the Prospectus.
m. SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (f), (g) or
(h) of this Section 4 during any period from the time (i) the
Agents shall have suspended solicitation of offers for the
purchase of Notes in their capacity as agents pursuant to a
request from the Company and (ii) no Agent shall then hold any
Notes purchased from the Company as principal, as the case may
be, until the time the Company shall determine that solicitation
of offers for the purchase of Notes should be resumed or an Agent
shall subsequently purchase Notes from the Company as principal.
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5. CONDITIONS OF AGENTS' OBLIGATIONS.
The obligations of one or more Agents to purchase Notes from the Company
as principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through an Agent as
an agent of the Company, will be subject to the accuracy of the representations
and warranties on the part of the Company herein contained or contained in any
certificate of an officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance and observance by the
Company of its covenants and other obligations hereunder, and to the following
additional conditions precedent:
a. EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement (including any Rule 462(b) Registration Statement) has
become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose
shall have been instituted or shall be pending or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Agents.
b. LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) OPINION OF COUNSEL FOR THE COMPANY. The favorable opinion
of Xxxxxx Xxxxxxxx, Esq., Vice President and General
Counsel of the Company, to the effect set forth in Exhibit
B hereto and to such further effect as the Agents may
reasonably request.
(2) OPINION OF COUNSEL FOR THE AGENTS. The favorable opinion
of Xxxxxxx, Xxxxxxx & Xxxx LLP, counsel for the Agents,
with respect to the matters set forth in numbered
paragraphs 1 (first sentence), 5, 6, 8 and 10 and the
penultimate paragraph of Exhibit B hereto.
c. OFFICER'S CERTIFICATE. On the date hereof, there shall not have
been, since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course
of business, and the Agents shall have received a certificate of
the President or a Vice President of the Company and of the chief
financial officer and chief accounting officer of the Company,
dated as of the date hereof, to the effect that (i) there has
been no such material adverse change, (ii) the representations
and warranties of the Company herein contained are true and
correct with the same force and effect as though expressly made
at and as of the date of such certificate, (iii) the Company has
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such
certificate, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to the
best of such officer's knowledge, are threatened by the
Commission.
d. COMFORT LETTER OF INDEPENDENT ACCOUNTANTS. On the date hereof,
the Agents shall have received a letter from the independent
certified public accountants who have certified the financial
statements included or incorporated by reference in the
Registration Statement and Prospectus, as then amended or
supplemented, dated as of the date hereof and in form and
substance satisfactory to the Agents, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented.
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e. ADDITIONAL DOCUMENTS. On the date hereof, counsel to the Agents
shall have been furnished with such documents and opinions as
such counsel may require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party
except as provided in Section 10 hereof and except that Sections 8, 9, 11, 14
and 15 hereof shall survive any such termination and remain in full force and
effect.
6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT.
Delivery of Notes sold through an Agent as an agent of the Company shall
be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company further covenants and agrees with each Agent as follows:
a. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by the Company of an offer for the purchase of Notes (whether to
one or more Agents as principal or through an Agent as agent),
and each delivery of Notes (whether to one or more Agents as
principal or through an Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the
Company herein contained and contained in any certificate
theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may
be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to such Agent(s)
or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (it being understood that
such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented
to each such time).
b. SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for the determination of the variable terms of the Notes
or relating solely to the offering of securities other than the
Notes), (ii) [(if required in connection with the purchase of
Notes from the Company by one or more Agents as principal)] the
Company sells Notes to one or more Agents[, whether] as principal
[or as agent] or (iii) the Company sells Notes in a form not
previously certified to the Agents by the Company, the Company
shall furnish or cause to be furnished to the Agent(s), forthwith
a certificate dated the date of filing with the Commission or the
date of effectiveness of such amendment or supplement, as
applicable, or the date of such sale, as the case may be, in form
satisfactory to the Agent(s) to the effect that the statements
contained
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in the certificate referred to in Section 5(c) hereof which were
last furnished to the Agents are true and correct at the time of
the filing or effectiveness of such amendment or supplement, as
applicable, or the time of such sale, as the case may be, as
though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu
of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(c) hereof, modified as
necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such certificate (it being understood that, in the case of clause
(ii) above, any such certificate shall also include a
certification that there has been no material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise since the date of the
agreement by such Agent(s) to purchase Notes from the Company as
principal).
c. SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for the determination of the variable terms of the Notes
or relating solely to the offering of securities other than the
Notes), (ii) [(if required in connection with the purchase of
Notes from the Company by one or more Agents as principal)] the
Company sells Notes to one or more Agents[, whether] as principal
[or as agent] or (iii) the Company sells Notes in a form not
previously certified to the Agents by the Company, the Company
shall furnish or cause to be furnished forthwith to the Agent(s)
and to counsel to the Agents the written opinion of Xxxxxx
Xxxxxxxx, Esq., counsel to the Company, or other counsel
satisfactory to the Agent(s), dated the date of filing with the
Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case
may be, in form and substance satisfactory to the Agent(s), of
the same tenor as the opinion referred to in Section 5(b)(1)
hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion,
counsel last furnishing such opinion to the Agents shall furnish
the Agent(s) with a letter substantially to the effect that the
Agent(s) may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter
authorizing reliance).
d. SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information (other
than by an amendment or supplement relating solely to the
issuance and/or offering of securities other than the Notes) or
(ii) [(if required in connection with the purchase of Notes from
the Company by one or more Agents as principal)] the Company
sells Notes to one or more Agents [, whether] as principal [or as
agent], the Company shall cause its independent public
accountants forthwith to furnish to the Agent(s) a letter, dated
the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or
the date of such sale, as the case may be, in form satisfactory
to the Agent(s), of the same tenor as the letter referred to in
Section 5(d) hereof but modified to relate to the Registration
Statement and Prospectus as amended and supplemented to the date
of such letter.
8. INDEMNIFICATION.
a. INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who
controls such Agent within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
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i. against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising
out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
ii. against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that
(subject to Section 8(d) hereof) any such settlement is
effected with the written consent of the Company; and
iii. against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel),
reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
b. INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each Agent
severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a)
hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
c. ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall
not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In case any such
action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, to assume the defense
thereof, jointly with any other indemnifying party
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similarly notified, with counsel satisfactory to such indemnified
party and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 8 for any legal expenses of
other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the
defense thereof except as provided below and except for the
reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (i) the
employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the
indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition
to those available to the indemnifying party, (iii) a conflict or
potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (iv) the indemnifying party has not in
fact employed counsel to assume the defense of such action within
a reasonable time after receiving notice of the commencement of
the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense
of the indemnifying party or parties. In no event shall the
indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 or 9 hereof
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
d. SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 8(a)(ii)
effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the
date of such settlement.
9. CONTRIBUTION. If the indemnification provided for in Section 8 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the applicable Agent(s), on the other hand, from the offering of the
Notes that were the subject of the claim for indemnification or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the applicable Agent(s), on the other hand, in connection
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with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
10. PAYMENT OF EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
a. The preparation, filing, printing and delivery of the
Registration Statement as originally filed and all amendments
thereto and any preliminary prospectus, the Prospectus and any
amendments or supplements thereto;
b. The preparation, printing and delivery of this Agreement and the
Indenture;
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c. The preparation, issuance and delivery of the Notes, including
any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form and the cost of obtaining CUSIP or other
identification numbers for the Notes;
d. The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or
exchange rate agent) and of the Trustee and its counsel;
e. The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and
incurred from time to time in connection with the transactions
contemplated hereby;
f. The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
g. The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
h. The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the
review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD"); and
i. Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Agents or any controlling person of an Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for the Notes.
12. TERMINATION.
a. TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the
Company as principal) may be terminated for any reason, at any
time by either the Company or an Agent, as to itself, upon the
giving of 30 days' prior written notice of such termination to
the other party hereto.
b. TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent(s) may terminate any agreement by such Agent(s)
to purchase Notes from the Company as principal, immediately upon
notice to the Company, at any time prior to the Settlement Date
relating thereto, if (i) there has been, since the date of such
agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United
States or, if such Notes are denominated and/or payable in, or
indexed to, one or more foreign or composite currencies, in the
international financial markets, or any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change
or development or event involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make
it, in the judgment of such Agent(s), impracticable to market
such Notes or enforce contracts for the sale of such Notes, or
(iii) trading in any securities of the
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Company has been suspended or limited by the Commission or a
national securities exchange, or if trading generally on the New
York Stock Exchange or the American Stock Exchange or in the
Nasdaq National Market has been suspended or limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by either of said exchanges or by
such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities or by the
relevant authorities in the country or countries of origin of any
foreign or composite currency in which such Notes are denominated
and/or payable, or (v) the rating assigned by any nationally
recognized statistical rating organization to the Program or any
debt securities (including the Notes) of the Company as of the
date of such agreement shall have been lowered or withdrawn since
that date or if any such rating organization shall have publicly
announced that it has under surveillance or review its rating of
the Program or any such debt securities, or (vi) there shall have
come to the attention of such Agent(s) any facts that would cause
such Agent(s) to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of such Notes, included
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time of such
delivery, not misleading.
c. GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the
Agents shall be entitled to any commissions earned in accordance
with the third paragraph of Section 3(b) hereof, (ii) if at the
time of termination (a) any Agent shall own any Notes purchased
by it from the Company as principal or (b) an offer to purchase
any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of such Notes relating
thereto has not occurred, the covenants set forth in Sections 4
and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant
set forth in Section 4(i) hereof, the provisions of Section 10
hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14
and 15 hereof shall remain in effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
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If to the Company:
Cabot Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Treasurer
Telecopy No.: 000-000-0000
with a copy to:
Cabot Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Credit Department, Credit Control -- Medium-Term Notes
Telecopy No.: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Department
Telecopy No.: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons, officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons,
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officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
15. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR
ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK.
16. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
CABOT CORPORATION
By: ____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _________________________________
Authorized Signatory
XXXXXXX, XXXXX & CO.
By: _________________________________
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By: _________________________________
Authorized Signatory
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year........................... .125%
From 1 year to less than 18 months.......................... .150
From 18 months to less than 2 years......................... .200
From 2 years to less than 3 years........................... .250
From 3 years to less than 4 years........................... .350
From 4 years to less than 5 years........................... .450
From 5 years to less than 6 years........................... .500
From 6 years to less than 7 years........................... .550
From 7 years to less than 10 years.......................... .600
From 10 years to less than 15 years......................... .625
From 15 years to less than 20 years......................... .700
From 20 years to 30 years................................... .750
Greater than 30 years....................................... (1)
--------
(1) As agreed to by the Company and the applicable Agent at the time of sale.
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EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters Page:
[ ] LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention: [ ] 30/360 for the period from _______ to
________ or
[ ] Actual/360 for the period from _______ to
______
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
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Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
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EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(1)
(1) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to issue and sell the Notes.
The Company has been duly qualified to do business as a foreign corporation
in, and is in good standing under the laws of, each jurisdiction (other
than the State of Delaware) where the Company owns or leases properties, or
conducts any business, so as to require such qualification, except where
the failure to so qualify or failure to be in good standing would not have
a material adverse effect upon the Company and its subsidiaries taken as a
whole.
(2) Each of the current subsidiaries of the Company which is a "significant
subsidiary" (as defined in Regulation S-X under the Securities Act of 1933)
has been duly incorporated and is validly existing as a corporation and is
in good standing under the laws of the jurisdiction of its incorporation
(except with respect to any subsidiaries incorporated in jurisdictions
where the concept of good standing is not recognized); and the Company owns
of record or beneficially all of the outstanding shares of capital stock of
each such subsidiary, to the best of such counsel's knowledge, free and
clear of any liens, encumbrances or claims.
(3) To the best of such counsel's knowledge, other than as set forth in the
Prospectus, there is not pending or threatened any action, suit or
proceeding before any court or governmental agency, authority or body
involving the Company or any of its subsidiaries which either individually
or in the aggregate may reasonably be foreseen to have a material adverse
effect on the business or condition of the Company and its subsidiaries,
taken as a whole; and the descriptions of the actions, suits and
proceedings incorporated by reference in the Prospectus fairly describe, to
the extent required by applicable Exchange Act provisions, such actions,
suits or proceedings as of the date made and no materially adverse change
has occurred with respect to such actions, suits or proceedings.
(4) To the best of such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities in connection
with the Registration Statement.
(5) The Distribution Agreement has been duly authorized, executed and delivered
by the Company.
(6) The Notes have been duly authorized and, when duly executed, authenticated,
issued in accordance with the Indenture and delivered by the Company, and
paid for in accordance with the terms thereof, will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, enforceable in accordance with their terms,
subject, as to enforcement, to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, (ii) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or law), (iii) the
discretion of the court before which any proceeding therefor may be
brought, (iv) requirements that a claim with respect to any Notes payable
in a foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law and
(v) governmental authority to limit, delay or prohibit the making of
payments outside the United States (collectively, the "Enforceability
Limitations"). The Indenture and the Notes conform in all material respects
to the descriptions thereof in the Prospectus, as amended or supplemented
through the date of such opinion.
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(7) The Indenture has been duly authorized, executed and delivered on behalf of
the Company and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
the Enforceability Limitations. The Indenture has been duly qualified under
the Trust Indenture Act.
(8) No authorization consent or approval under any law or by any regulatory
authority is required for the valid issuance and sale of the Notes or the
consummation by the Company of the transactions contemplated in the
Distribution Agreement (except under the so-called "blue sky" or securities
laws of the several states, as to the applicability of which such counsel
need express no opinion).
(9) The execution, delivery and performance by the Company of the Distribution
Agreement and the Indenture, and the issuance and sale of the Notes, will
not result in any violation of or be in conflict with or constitute a
default under any term of (a) its charter or by-laws, (b) any statute or
governmental rule or regulation or (c) to the best knowledge of such
counsel, any license, permit, agreement, indenture, instrument, judgment,
decree or order, in each case applicable to it so as to materially and
adversely affect the financial condition of the Company and its
subsidiaries taken as a whole.
(10) Each of the documents incorporated by reference into the Registration
Statement, when it was filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(11) The Registration Statement became effective under the Act on [_________],
1998; any required filing, as of the date hereof, of a prospectus or any
supplement thereto pursuant to Rule 424(b) of the Act has been made in the
manner and within the time period required thereby; and, to the best of my
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending under the Act.
(12) The Registration Statement (including the Prospectus contained therein) as
of its effective date, and the Prospectus and Prospectus Supplement as of
the date hereof, other than the financial statements and the related
schedules therein, as to which such counsel need express no opinion,
complied as to form in all material respects with the requirements of the
Securities Act of 1933 and the applicable published rules and regulations
thereunder and the Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act and the rules and
regulations thereunder.
(13) Such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be incorporated by reference into the Prospectus or required
to be described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required.
In addition, such counsel shall state that, without passing upon or
assuming any responsibility for the accuracy or completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, nothing
has come to such counsel's attention that would lead such counsel to believe (a)
that the Registration Statement or any post-effective amendment thereto (except
for financial statements, supporting schedules and other financial data included
therein or omitted therefrom and for the Form T-1, as to which such counsel need
make no statement), at the time the Registration Statement or any post-effective
amendment thereto (including the filing of the Company's Annual Report on Form
10-K with the Commission) became effective or at the date of any agreement of
the applicable Agent(s) to purchase Notes from the Company as principal,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (b) that the Prospectus or any amendment or supplement thereto
(except for financial statements, supporting schedules and other financial and
statistical data included therein or omitted therefrom, as to which such counsel
need make no statement), at the time the Prospectus was
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issued, at the time any such amended or supplemented prospectus was issued or at
the date of such opinion, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering this opinion, counsel for the Company may rely (A) as to
matters involving the application of laws other than the laws of the United
States, the Commonwealth of Massachusetts and the State of Delaware, to the
extent such counsel deems proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (dated and furnished to the Agents on the
date of such counsel's opinion, and in form and substance reasonably
satisfactory to counsel for the Agents) of other counsel that is familiar with
the applicable laws and is reasonably acceptable to counsel for the Agents, and
(B) as to matters of fact (but not as to legal conclusions), to the extent such
counsel deems proper, on certificates of responsible officers of the Company and
public officials. The opinion of counsel to the Company, to the extent that it
relies on such opinions, certificates or other written statements, shall state
that the opinion of any such other counsel or any such certificate is in form
satisfactory to such counsel and, in such counsel's opinion, such counsel and
the Agents are justified in relying thereon.
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CABOT CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
(Dated as of _________, 199_)
Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes") are to be offered on a continuous basis by Cabot Corporation, a
Delaware corporation (the "Company"), to or through Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx
Securities Inc. (each, an "Agent" and, collectively, the "Agents") pursuant to a
Distribution Agreement, dated _______, 1998 (the "Distribution Agreement"), by
and among the Company and the Agents. The Distribution Agreement provides both
for the sale of Notes by the Company to one or more of the Agents as principal
for resale to investors and other purchasers and for the sale of Notes by the
Company directly to investors (as may from time to time be agreed to by the
Company and the related Agent or Agents), in which case each such Agent will act
as an agent of the Company in soliciting purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes are to be issued pursuant to an Indenture, dated as of
December 1, 1987, as supplemented and amended by a First Supplemental Indenture
dated as of June 17, 1992 and a Second Supplemental Indenture dated as of
January 31, 1997, and (collectively and as amended or supplemented from time to
time, the "Indenture"), between the Company and State Street Bank and Trust
Company, as successor trustee (the "Trustee"). The Company has filed a
Registration Statement with the Securities and Exchange Commission (the
"Commission") registering debt securities (which includes the Notes) (the
"Registration Statement", which term shall include any additional registration
statements filed in connection with the Notes). The most recent base prospectus
deemed part of the Registration Statement, as supplemented with respect to the
Notes, is herein referred to as "Prospectus." The most recent supplement to the
Prospectus setting forth the purchase price, interest rate or formula, maturity
date and other terms of the Notes (as applicable) is herein referred to as the
"Pricing Supplement."
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The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Maturities: Each Note will mature on a date nine months or more
from its Original Issue Date (the "Stated Maturity
Date") selected by the investor or other purchaser
and agreed to by the Company.
Registration: Unless otherwise provided in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Interest Rate Bases
applicable to
Floating Rate Notes: Unless otherwise provided in the applicable Pricing
Supplement, Floating Rate Notes will bear interest
at a rate or rates determined by reference to the
CD Rate, the CMT Rate, the Commercial Paper Rate,
the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR, the Prime Rate, the
Treasury Rate, or such other interest rate basis or
formula as may be set forth in applicable Pricing
Supplement, or by reference to two or more such
rates, as adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating
Rate Notes.
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Redemption/Repayment: The Notes will be subject to redemption by the
Company in accordance with the terms of the Notes,
which will be fixed at the time of sale and set
forth in the applicable Pricing Supplement. If no
Initial Redemption Date is indicated with respect
to a Note, such Note will not be redeemable prior
to its Stated Maturity Date.
The Notes will be subject to repayment at the
option of the Holders thereof in accordance with
the terms of the Notes, which will be fixed at the
time of sale and set forth in the applicable
Pricing Supplement. If no Optional Repayment Date
is indicated with respect to a Note, such Note will
not be repayable at the option of the Holder prior
to its Stated Maturity Date.
Calculation of Interest: In case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated
and paid on the basis of a 360-day year of twelve
30-day months.
The interest rate on each Floating Rate Note will
be calculated by reference to the specified
Interest Rate Basis or Bases plus or minus the
applicable Spread, if any, and/or multiplied by the
applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable Pricing
Supplement, interest on each Floating Rate Note
will be calculated by multiplying its principal
amount by an accrued interest factor. Such accrued
interest factor is computed by adding the interest
factor calculated for each day in the period for
which accrued interest is being calculated. Unless
otherwise provided in the applicable Pricing
Supplement, the interest factor for each such day
is computed by dividing the interest rate
applicable to such day by 360 if the CD Rate,
Commercial Paper Rate, Eleventh District Cost of
Funds Rate, Federal Funds Rate, LIBOR or Prime Rate
is an applicable Interest Rate Basis, or by the
actual number of days in the year if the CMT Rate
or Treasury Rate is an applicable Interest Rate
Basis. As provided in the applicable Pricing
Supplement, the interest factor for Notes for which
the interest rate is calculated with reference to
two or more Interest Rate Bases will be calculated
in each period in the same manner as if only the
lowest, highest or average of the applicable
Interest Rate Bases applied.
Interest: GENERAL. Each Note will bear interest in accordance
with its terms. Unless otherwise provided in the
applicable Pricing
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33
Supplement, interest on each Note will accrue from
and including the Original Issue Date of such Note
for the first interest period or from the most
recent Interest Payment Date (as defined below) to
which interest has been paid or duly provided for
all subsequent interest periods to but excluding
applicable Interest Payment Date or the Stated
Maturity Date or date of earlier redemption or
repayment, as the case may be (the Stated Maturity
Date or date of earlier redemption or repayment is
referred to herein as the "Maturity Date" with
respect to the principal repayable on such date).
If an Interest Payment Date or the Maturity Date
with respect to any Fixed Rate Note falls on a day
that is not a Business Day (as defined below), the
required payment to be made on such day need not be
made on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day, and no interest
shall accrue on such payment for the period from
and after such day to the next succeeding Business
Day. If an Interest Payment Date other than the
Maturity Date with respect to any Floating Rate
Note would otherwise fall on a day that is not a
Business Day, such Interest Payment Date will be
postponed to the next succeeding Business Day,
except that in the case of a Note for which LIBOR
is an applicable Interest Rate Basis, if such
Business Day falls in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding Business Day. If the Maturity
Date with respect to any Floating Rate Note falls
on a day that is not a Business Day, the required
payment to be made on such day need not be made on
such day, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such day, and no interest shall accrue on
such payment for the period from and after the
Maturity Date to the next succeeding Business Day.
Unless otherwise provided in the applicable Pricing
Supplement, "Business Day" means any day, other
than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are
authorized or required by law, regulation or
executive order to close in The City of New York;
provided, however, that, with respect to Notes the
payment of which is to be made in a currency other
than U.S. dollars or composite currencies (such
currency or composite currency in which a Note is
denominated is the "Specified Currency"), such day
is also not a day on which banking institutions are
authorized or required by law, regulation or
executive order to close in the Principal Financial
Center (as
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34
defined below) of the country issuing such
Specified Currency (or, in the case of European
Currency Units ("ECUs"), is not a day that appears
as an ECU non-settlement day on the display
designated as "ISDE" on the Xxxxxx Monitor Money
Rates Service (or a day so designated by the ECU
Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so
designated), is not a day on which payments in ECU
cannot be settled in the international interbank
market); provided, further, that, with respect to
Notes for which LIBOR is an applicable Interest
Rate Basis, such day is also a London Business Day
(as defined below). "London Business Day" means (i)
if the currency (including composite currencies)
specified in the applicable Pricing Supplement as
the currency (the "Index Currency") for which LIBOR
is calculated is other than ECU, any day on which
dealings in such Index Currency are transacted in
the London interbank market or (ii) if the Index
Currency is ECU, any day that does not appear as an
ECU non-settlement day on the display designated as
"ISDE" on the Xxxxxx Monitor Money Rates Service
(or a day so designated by the ECU Banking
Association) or, if ECU non-settlement days do not
appear on that page (and are not so designated), is
not a day on which payments in ECU cannot be
settled in the international interbank market. It
being understood that if no such currency or
composite currency is specified in the applicable
Pricing Supplement, the Index Currency shall be
U.S. dollars. "Principal Financial Center" means
the capital city of the country issuing the
currency or composite currency in which any payment
in respect of the Notes is to be made or, solely
with respect to the calculation of LIBOR, the Index
Currency, except that with respect to U.S. dollars,
Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECUs, the Principal
Financial Center shall be The City of New York,
Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
REGULAR RECORD DATES. Unless otherwise provided in
the applicable Pricing Supplement, the "Regular
Record Date" for a Note shall be the date 15
calendar days (whether or not a Business Day)
preceding the applicable Interest Payment Date.
INTEREST PAYMENT DATES. Interest payments will be
made on each Interest Payment Date commencing with
the first Interest Payment Date following the
Original Issue Date; provided, however, the first
payment of interest on any Note originally
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35
issued between a Regular Record Date and an
Interest Payment Date will occur on the Interest
Payment Date following the next succeeding Regular
Record Date.
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes
will be made semiannually in arrears on June 15 and
December 15 of each year and on the Maturity Date,
while interest payments on Floating Rate Notes will
be made as specified in the applicable Pricing
Supplement.
Acceptance and
Rejection of Offers from
Solicitation as Agents: If agreed upon by any Agent and the Company, then
such Agent acting solely as agent for the Company
and not as principal will solicit purchases of the
Notes. Each Agent will communicate to the Company,
orally or in writing, each reasonable offer to
purchase Notes solicited by such Agent on an agency
basis, other than those offers rejected by such
Agent. Each Agent has the right, in its discretion
reasonably exercised, to reject any proposed
purchase of Notes, as a whole or in part, and any
such rejection shall not be a breach of such
Agent's agreement contained in the Distribution
Agreement. The Company has the sole right to accept
or reject any proposed purchase of Notes, in whole
or in part, and any such rejection shall not be a
breach of the Company's agreement contained in the
Distribution Agreement. Each Agent has agreed to
make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer
to purchase Notes has been solicited by such Agent
and accepted by the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will promptly prepare a
Pricing Supplement reflecting the terms of such
Note. Information to be included in the Pricing
Supplement shall include:
i. the name of the Company;
ii. the title of the Notes;
iii. the date of the Pricing Supplement and the date of the
Prospectus to which the Pricing Supplement relates;
iv. the name of the Offering Agent (as defined below);
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36
v. whether such Notes are being sold to the Offering Agent as
principal or to an investor or other purchaser through the
Offering Agent acting as agent for the Company;
vi. with respect to Notes sold to the Offering Agent as principal,
whether such Notes will be resold by the Offering Agent to
investors and other purchasers at (i) a fixed public offering
price of a specified percentage of their principal amount or
(ii) at varying prices related to prevailing market prices at
the time of resale to be determined by the Offering Agent;
vii. with respect to Notes sold to an investor or other purchaser
through the Offering Agent acting as agent for the Company,
whether such Notes will be sold at (i) 100% of their principal
amount or (ii) a specified percentage of their principal amount;
viii. the Offering Agent's discount or commission;
ix. Net proceeds to the Company;
x. the Principal Amount, Specified Currency, Original Issue Date,
Stated Maturity Date, Interest Payment Date(s), Authorized
Denomination, Initial Redemption Date, if any, Initial
Redemption Percentage, if any, Annual Redemption Percentage
Reduction, if any, Optional Repayment Date(s), if any, Exchange
Rate Agent, if any, Default Rate, if any, and, in the case of
Fixed Rate Notes, the Interest Rate, and whether such Fixed Rate
Note is an Original Issue Discount Note (and, if so, the Issue
Price), and, in the case of Floating Rate Notes, the Interest
Category, the Interest Rate Basis or Bases, the Day Count
Convention, Index Maturity (if applicable), Initial Interest
Rate, if any, Maximum Interest Rate, if any, Minimum Interest
Rate, if any, Initial Interest Reset Date, Interest Reset Dates,
Spread and/or Spread Multiplier, if any, and Calculation Agent;
and
xi. any other additional provisions of the Notes material to
investors or other purchasers of the Notes not otherwise
specified in the Prospectus.
The Company shall use its reasonable best efforts
to send such Pricing Supplement by telecopy or
overnight express (for delivery by the close of
business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time, on
the Business Day following the applicable trade
date) to the Agent which made or presented the
offer to purchase the applicable Note (in such
capacity, the "Offering Agent") and the Trustee at
the following
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37
applicable address: if to Xxxxxxx Xxxxx & Co., to:
Tritech Services, 00X Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, Attention: Prospectus Operations/
Xxxxxxx Xxxxxxxxx, (000) 000-0000, telecopier:
(000) 000-0000/5/6; if to Xxxxxxx Xxxxx & Co., to:
Credit Department, Credit Control -- Medium-Term
Notes, Xxxxxxx Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, (000) 000-0000, telecopier
(000) 000-0000; if to X.X. Xxxxxx Securities Inc.,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Department, (212)
648-0591, telecopier (000) 000-0000; and if to the
Trustee, to: State Street Bank and Trust Company,
Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Corporate Trust
Administration--Cabot Corporation Medium-Term
Notes, (000) 000-0000, telecopier: (000) 000-0000.
For record keeping purposes, one copy of such
Pricing Supplement shall also be mailed or
telecopied to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, World
Financial Center, North Tower, 10th Floor, New
York, New York, 10281-1310, Attention: MTN Product
Management, (000) 000-0000, telecopier: (212)
449-2234, with a copy to Xxxxxxx, Procter & Xxxx
LLP, Attention: Xxxx X. Xxxxxx, Esq., (617)
570-1475, telecopier: (000) 000-0000.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy of
such Pricing Supplement to each investor or
purchaser of the relevant Notes or its agent.
Pursuant to Rule 434 ("Rule 434") of the Securities
Act of 1933, as amended, the Pricing Supplement may
be delivered separately from the Prospectus.
Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute "settlement."
Offers accepted by the Company will be settled in
three Business Days, or at such time as the
purchaser, the applicable Agent and the Company
shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof
under "Settlement Procedure Timetable" with respect
to Global Notes and Certificated Notes,
respectively (each such date fixed for settlement
is hereinafter referred to as a "Settlement Date").
If procedures A and B of the applicable Settlement
Procedures with respect to a particular offer are
not completed on or before the time set forth under
the applicable "Settlement Procedures Timetable",
such offer shall
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38
not be settled until the Business Day following the
completion of settlement procedures A and B or such
later date as the purchaser and the Company shall
agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent
as principal if so agreed by the Company and such
Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any
Notes being sold by the Company, the Company will
promptly advise the Agents and the Trustee by
facsimile transmission and the Agents will
forthwith suspend solicitation of offers to
purchase such Notes. The Agents will telephone the
Company with recommendations as to the changed
interest rates or other variable terms. At such
time as the Company notifies the Agents and the
Trustee of the new interest rates or other variable
terms, the Agents may resume solicitation of offers
to purchase such Notes. Until such time, only
"indications of interest" may be recorded.
Immediately after acceptance by the Company of an
offer to purchase Notes at a new interest rate or
new variable term, the Company, the Offering Agent
and the Trustee shall follow the procedures set
forth under the applicable "Settlement Procedures."
Suspension of Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any
time. Upon receipt of such instructions, the Agents
will forthwith suspend solicitation of offers to
purchase from the Company until such time as the
Company has advised the Agents that solicitation of
offers to purchase may be resumed. If the Company
decides to amend or supplement the Registration
Statement or the Prospectus (other than to
establish or change interest rates or formulas,
maturities, prices or other similar variable terms
with respect to the Notes), it will promptly advise
the Agents and will furnish the Agents and their
counsel with copies of the proposed amendment or
supplement. Copies of such amendment or supplement
will be delivered or mailed to the Agents, their
counsel and the Trustee in quantities which such
parties may reasonably request at the following
respective addresses: Xxxxxxx Xxxxx & Co., World
Financial Center, North Tower, 10th Floor, New
York, New
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York 10281-1310, Attention: MTN Product Management,
(000) 000-0000, telecopier: (000) 000-0000; Credit
Department, Credit Control -- Medium-Term Notes,
Xxxxxxx Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, (000) 000-0000, telecopier (212)
346-2793; and X.X. Xxxxxx Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Medium-Term Note Department, (000) 000-0000,
telecopier (000) 000-0000; State Street Bank and
Trust Company, Two International Place, 4th Floor,
Boston, Massachusetts 02110, Attention: Corporate
Trust Administration--Cabot Corporation Medium-Term
Notes, (000) 000-0000, telecopier: (617) 664- 5371.
For record keeping purposes, one copy of each such
amendment or supplement shall also be mailed or
telecopied to Xxxxxxx, Procter & Xxxx LLP,
Attention: Xxxx X. Xxxxxx, Esq., (000) 000-0000,
telecopier: (000) 000-0000.
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to establish or change interest rates
or formulas, maturities, prices or other similar
variable terms with respect to the Notes) there
shall be any offers to purchase Notes that have
been accepted by the Company which have not been
settled, the Company will promptly advise the
Offering Agent and the Trustee whether such offers
may be settled and whether copies of the Prospectus
as theretofore amended and/or supplemented as in
effect at the time of the suspension may be
delivered in connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for any
arrangements which may be made in the event that
the Company determines that such offers may not be
settled or that copies of such Prospectus may not
be so delivered.
Delivery of Prospectus
and applicable Pricing
Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to
Rule 434 may be delivered separately from the
Prospectus, must accompany or precede the earlier
of (a) the written confirmation of a sale sent to
an investor or other purchaser or its agent and (b)
the delivery of Notes to an investor or other
purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any
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40
officer, employee or agent of the Company or the
Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an
adequate supply of all documents incorporated by
reference in the Registration Statement and the
Prospectus.
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41
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated ________________,
1998, and a Certificate Agreement, dated _________________, 19__, between the
Trustee and DTC, as amended (the "Certificate Agreement"), and its obligations
as a participant in DTC, including DTC's Same-Day Funds Settlement System
("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having
the same Original Issue Date, Specified Currency,
Interest Rate, Default Rate, Interest Payment Dates,
redemption and/or repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed Rate Terms")
will be represented initially by a single Global Note;
and all Floating Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Category, formula for the
calculation of interest (including the Interest Rate
Basis or Bases, which may be the CD Rate, the CMT Rate,
the Commercial Paper Rate, the Eleventh District Cost
of Funds Rate, the Federal Funds Rate, LIBOR, the Prime
Rate or the Treasury Rate or any other interest rate
basis or formula, and Spread and/or Spread Multiplier,
if any), Day Count Convention, Initial Interest Rate,
Default Rate, Index Maturity (if applicable), Minimum
Interest Rate, if any, Maximum Interest Rate, if any,
redemption and/or repayment terms, if any, Interest
Payment Dates, Initial Interest Reset Date, Interest
Reset Dates and Stated Maturity Date(collectively, the
"Floating Rate Terms") will be represented initially by
a single Global Note.
For other variable terms with respect to the Fixed Rate
Notes and Floating Rate Notes, see the Prospectus and
the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will be
entitled to physical delivery of Certificated Notes
equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau")
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for the reservation of one series of CUSIP numbers,
which series consists of approximately 900 CUSIP
numbers which have been reserved for and relating to
Global Notes and the Company has delivered to each of
the Trustee and DTC such list of such CUSIP numbers.
The Company will assign CUSIP numbers to Global Notes
as described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global Notes. The Trustee will notify the Company at
any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Notes, and, if it
deems necessary, the Company will reserve and obtain
additional CUSIP numbers for assignment to Global
Notes. Upon obtaining such additional CUSIP numbers,
the Company will deliver a list of such additional
numbers to the Trustee and DTC. Notes issued in
book-entry form in excess of $200,000,000 (or the
equivalent thereof in one or more foreign or composite
currencies) aggregate principal amount and otherwise
required to be represented by the same Global Note will
instead be represented by two or more Global Notes
which shall all be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by the
Trustee under the Indenture. The beneficial owner of a
Note issued in book-entry form (i.e., an owner of a
beneficial interest in a Global Note) (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC (with
respect to such Note issued in book-entry form, the
"Participants") to act as agent for such beneficial
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
Note issued in book-entry form in the account of such
Participants. The ownership interest of such beneficial
owner in such Note issued in book-entry form will be
recorded through the records of such Participants or
through the separate records of such Participants and
one or more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests in a Global
Note will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of
such Global Note.
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43
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Global Notes having the
same Fixed Rate Terms or Floating Rate Terms, as the
case may be (other than Original Issue Dates), and for
which interest has been paid to the same date; (b) a
date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the
next Interest Payment Date for the related Notes issued
in book-entry form, on which such Global Notes shall be
exchanged for a single replacement Global Note; and (c)
a new CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon receipt
of such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization notice
to the effect that such exchange will occur on such
date. Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be exchanged will
no longer be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the CUSIP
numbers of the exchanged Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the foregoing,
if the Global Notes to be exchanged exceed $200,000,000
(or the equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount,
one replacement Note will be authenticated and issued
to represent each $200,000,000 (or the equivalent
thereof in one or more foreign or composite currencies)
in aggregate principal amount of the exchanged Global
Notes and an additional Global Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (See
"Denominations" below).
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, Notes issued in book-entry form will be
issued in denominations of $1,000 and integral
multiples thereof. Global Notes will not be denominated
in excess of $200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies) aggregate
principal amount. If one or more Notes are issued in
book-entry form in excess of $200,000,000 (or the
equivalent thereof in one or more foreign or composite
currencies) aggregate principal amount and would, but
for the preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
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44
represent each $200,000,000 (or the equivalent thereof
in one or more foreign or composite currencies) in
aggregate principal amount of such Notes issued in
book-entry form and an additional Global Note or Notes
will be issued to represent any remaining aggregate
principal amount of such Note or Notes issued in
book-entry form. In such a case, each of the Global
Notes representing Notes issued in book-entry form
shall be assigned the same CUSIP number.
Payments of Principal
and Interest: PAYMENTS OF INTEREST ONLY. Promptly after each Regular
Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Note on
the following Interest Payment Date (other than an
Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will confirm
the amount payable on each Global Note on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's Corporation. On such
Interest Payment Date, the Company will pay to the
Trustee in immediately available funds an amount
sufficient to pay the interest then due and owing on
the Global Notes, and upon receipt of such funds from
the Company, the Trustee in turn will pay to DTC such
total amount of interest due on such Global Notes
(other than on the Maturity Date) which is payable in
U.S. dollars, at the times and in the manner set forth
below under "Manner of Payment." The Trustee shall make
payment of that amount of interest due and owing on any
Global Notes that Participants have elected to receive
in foreign or composite currencies directly to such
Participants.
NOTICE OF INTEREST RATES. Promptly after each Interest
Determination Date or Calculation Date, as the case may
be, for Floating Rate Notes issued in book-entry form,
the Trustee will notify each of Xxxxx'x Investors
Service, Inc. and Standard & Poor's Corporation of the
interest rates determined as of such Interest
Determination Date.
PAYMENTS AT MATURITY. On or about the first Business
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, premium,
if any, and interest to be paid on each Global Note
maturing or otherwise becoming due in the following
month. The Trustee, the Company and DTC will confirm
the amounts of such principal, premium, if any, and
interest payments with respect to each such Global Note
on or
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45
about the fifth Business Day preceding the Maturity
Date of such Global Note. On the Maturity Date, the
Company will pay to the Trustee in immediately
available funds an amount sufficient to make the
required payments, and upon receipt of such funds the
Trustee in turn will pay to DTC the principal amount of
Global Notes, together with premium, if any, and
interest due on the Maturity Date, which are payable in
U.S. dollars, at the times and in the manner set forth
below under "Manner of Payment." The Trustee shall make
payment of the principal, premium, if any, and interest
to be paid on the Maturity Date of each Global Note
that Participants have elected to receive in foreign or
composite currencies directly to such Participants.
Promptly after (i) payment to DTC of the principal,
premium, if any, and interest due on the Maturity Date
of such Global Note which are payable in U.S. dollars
and (ii) payment of the principal, premium, if any, and
interest due on the Maturity Date of such Global Note
to those Participants who have elected to receive such
payments in foreign or composite currencies, the
Trustee will cancel such Global Note and deliver it to
the Company with an appropriate debit advice. On the
first Business Day of each month, the Trustee will
deliver to the Company a written statement indicating
the total principal amount of outstanding Global Notes
as of the close of business on the immediately
preceding Business Day.
MANNER OF PAYMENT. The total amount of any principal,
premium, if any, and interest due on Global Notes on
any Interest Payment Date or the Maturity Date, as the
case may be, which is payable in U.S. dollars shall be
paid by the Company to the Trustee in funds available
for use by the Trustee no later than 10:00 a.m., New
York City time, on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Upon receipt of such funds,
the Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment in
U.S. dollars of principal, premium, if any, and
interest due on Global Notes on such date. Thereafter
on such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the beneficial interests in
such Global Notes are recorded in the book-entry system
maintained by DTC. Neither the Company
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46
nor the Trustee shall have any responsibility or
liability for the payment in U.S. dollars by DTC of the
principal of, or premium, if any, or interest on, the
Global Notes. The Trustee shall make all payments of
principal, premium, if any, and interest on each Global
Note that Participants have elected to receive in
foreign or composite currencies directly to such
Participants.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Global Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding payments
and materials directly to the beneficial owner of such
Global Note.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Company, or purchased by an Agent, as principal, will
be as follows:
a. The Offering Agent will advise the Company by telephone, confirmed
by facsimile, of the following settlement information:
i. Principal amount, Authorized Denomination, and Specified
Currency.
ii. Exchange Rate Agent, if any.
iii. (1) Fixed Rate Notes:
(a) Interest Rate.
(b) Interest Payment Dates.
(c) Whether such Note is being issued with Original Issue
Discount and, if so, the terms thereof.
(2) Floating Rate Notes:
(a) Interest Category.
(b) Interest Rate Basis or Bases.
(c) Initial Interest Rate.
(d) Spread and/or Spread Multiplier, if any.
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(e) Initial Interest Reset Date or Interest Reset Dates.
(f) Interest Payment Dates.
(g) Index Maturity, if any.
(h) Maximum and/or Minimum Interest Rates, if any.
(i) Day Count Convention.
(j) Calculation Agent.
iv. Price to public, if any, of such Note (or whether such Note
is being offered at varying prices relating to prevailing
market prices at time of resale as determined by the
Offering Agent).
v. Trade Date.
vi. Settlement Date (Original Issue Date).
vii. Stated Maturity Date.
viii. Redemption provisions, if any.
ix. Repayment provisions, if any.
x. Default Rate, if any.
xi. Net proceeds to the Company.
xii. The Offering Agent's discount or commission.
xiii. Whether such Note is being sold to the Offering Agent as
principal or to an investor or other purchaser through the
Offering Agent acting as agent for the Company.
xiv. Such other information specified with respect to such Note
(whether by Addendum or otherwise).
b. The Company will assign a CUSIP number to the Global Note
representing such Note and then advise the Trustee by facsimile
transmission or other electronic transmission of the above
settlement information received from the Offering Agent, such
CUSIP number and the name of the Offering Agent. The Company
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will also advise the Offering Agent of the CUSIP number assigned
to the Global Note.
c. The Trustee will communicate to DTC and the Offering Agent through
DTC's Participant Terminal System a pending deposit message
specifying the following settlement information:
i. The information set forth in the Settlement Procedure A.
ii. Identification numbers of the participant accounts
maintained by DTC on behalf of the Trustee and the Offering
Agent.
iii. Identification of the Global Note as a Fixed Rate Global
Note or Floating Rate Global Note.
iv. Initial Interest Payment Date for such Note, number of days
by which such date succeeds the related record date for DTC
purposes (or, in the case of Floating Rate Notes which reset
daily or weekly, the date five calendar days preceding the
Interest Payment Date) and, if then calculable, the amount
of interest payable on such Interest Payment Date (which
amount shall have been confirmed by the Trustee).
v. CUSIP number of the Global Note representing such Note.
vi. Whether such Global Note represents any other Notes issued
or to be issued in book-entry form.
DTC will arrange for each pending deposit message described
above to be transmitted to Standard & Poor's Corporation,
which will use the information in the message to include
certain terms of the related Global Note in the appropriate
daily bond report published by Standard & Poor's
Corporation.
d. The Trustee will complete and authenticate the Global Note
representing such Note.
e. DTC will credit such Note to the participant account of the
Trustee maintained by DTC.
f. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note
to the Trustee's participant account and credit such Note to the
participant account of the Offering Agent maintained by DTC and
(ii) to debit the settlement account of the Offering Agent and
credit the settlement account of the Trustee maintained
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by DTC, in an amount equal to the price of such Note less such
Offering Agent's discount or underwriting commission, as
applicable. Any entry of such a deliver order shall be deemed to
constitute a representation and warranty by the Trustee to DTC
that (i) the Global Note representing such Note has been issued
and authenticated and (ii) the Trustee is holding such Global Note
pursuant to the Certificate Agreement.
g. In the case of Notes in book-entry form sold through the Offering
Agent, as agent, the Offering Agent will enter an SDFS deliver
order through DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Offering Agent's participant account
and credit such Note to the participant account of the
Participants maintained by DTC and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of
the Offering Agent maintained by DTC in an amount equal to the
initial public offering price of such Note.
h. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures F and G will be settled in
accordance with SDFS operating procedures in effect on the
Settlement Date.
i. Upon receipt, the Trustee will pay the Company, by wire transfer
of immediately available funds to an account specified by the
Company to the Trustee from time to time, the amount transferred
to the Trustee in accordance with Settlement Procedure F.
j. The Trustee will send a copy of the Global Note by first class
mail to the Company together with a statement setting forth the
principal amount of Notes Outstanding as of the related Settlement
Date after giving effect to such transaction and all other offers
to purchase Notes of which the Company has advised the Trustee but
which have not yet been settled.
k. If such Note was sold through the Offering Agent, as agent, the
Offering Agent will confirm the purchase of such Note to the
investor or other purchaser either by transmitting to the
Participant with respect to such Note a confirmation order through
DTC's Participant Terminal System or by mailing a written
confirmation to such investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures A through K set forth above shall
be completed as soon as possible following the trade
but not later than the respective times (New York City
time) set forth below:
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Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C No later than the close of business on the
trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
5:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, the Trustee may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant
account of the Trustee maintained at DTC. DTC will
process the withdrawal message, provided that such
participant account contains a principal amount of the
Global Note representing such Note that is at least
equal to the principal amount to be debited. If
withdrawal messages are processed with respect to all
the Notes represented by a Global Note, the Trustee
will mark such Global Note "canceled", make appropriate
entries in its records and send certification of
destruction of such canceled Global Note to the
Company. The CUSIP number assigned to such Global Note
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
If withdrawal messages are processed with respect to a
portion of
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the Notes represented by a Global Note, the Trustee
will exchange such Global Note for two Global Notes,
one of which shall represent the Global Notes for which
withdrawal messages are processed and shall be canceled
immediately after issuance and the other of which shall
represent the other Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number
of the surrendered Global Note.
In the case of any Note in book-entry form sold through
the Offering Agent, as agent, if the purchase price for
any such Note is not timely paid to the Participants
with respect thereto by the beneficial investor or
other purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
investor or other purchaser), such Participants and, in
turn, the related Offering Agent may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures F and G, respectively. Thereafter, the
Trustee will deliver the withdrawal message and take
the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the applicable Offering
Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its reasonable
loss of the use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a
failure to settle with respect to a Note that was to
have been represented by a Global Note also
representing other Notes, the Trustee will provide, in
accordance with Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will make
appropriate entries in its records.
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PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Certificated Notes will be issued in
denominations of $1,000 and integral multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated Note,
the Trustee upon receipt of immediately available funds
from the Company will pay the principal of, premium, if
any, and interest on, each Certificated Note on the
Maturity Date in immediately available funds. All
interest payments on a Certificated Note, other than
interest due on the Maturity Date, will be made by
check mailed to the address of the person entitled
thereto as such address shall appear in the Security
Register; provided, however, that Holders of
$10,000,000 or more in aggregate principal amount of
Certificated Notes (whether having identical or
different terms and provisions) shall be entitled to
receive such interest payments by wire transfer of
immediately available funds if appropriate wire
transfer instructions have been received in writing by
the Trustee not less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company a list
of the principal, premium, if any, and interest to be
paid on Certificated Notes maturing in the next
succeeding month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect to
such destruction.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note purchased by an Agent, as principal, or through an
Agent, as agent, shall be as follows:
l. The Offering Agent will advise the Company by telephone of the
following Settlement information with regard to each Certificated
Note:
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m. i. exact name in which the Certificated Note(s) is to be
registered (the "Registered Owner").
ii. Exact address or addresses of the Registered Owner for
delivery, notices and payments of principal, premium, if
any, and interest.
iii. Taxpayer identification number of the Registered Owner.
iv. Principal amount, Authorized Denomination and Specified
Currency.
v. Exchange Rate Agent, if any.
vi. (1) Fixed Rate Notes:
(a) Interest Rate.
(b) Interest Payment Dates.
(c) Whether such Note is being issued with Original
Issue Discount and, if so, the terms thereof.
(2) Floating Rate Notes:
(a) Interest Category.
(b) Interest Rate Basis or Bases.
(c) Initial Interest Rate.
(d) Spread and/or Spread Multiplier, if any.
(e) Initial Interest Reset Date and Interest Reset
Dates.
(f) Interest Payment Dates.
(g) Index Maturity, if any.
(h) Maximum and/or Minimum Interest Rates, if any.
(i) Day Count Convention.
(j) Calculation Agent.
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vii. Price to public of such Certificated Note (or whether such
Note is being offered at varying prices relating to
prevailing market prices at time of resale as determined by
the Offering Agent).
viii. Trade Date.
ix. Settlement Date (Original Issue Date).
x. Stated Maturity Date.
xi. Redemption provisions, if any.
xii. Repayment provisions, if any.
xiii. Default Rate, if any.
xiv. Net proceeds to the Company.
xv. The Offering Agent's discount or commission.
xvi. Whether such Note is being sold to the Offering Agent as
principal or to an investor or other purchaser through the
Offering Agent acting as agent for the Company.
xvii. Such other information specified with respect to such Note
(whether by Addendum or otherwise).
n. After receiving such settlement information from the Offering
Agent, the Company will advise the Trustee of the above settlement
information by facsimile transmission confirmed by telephone. The
Company will cause the Trustee to issue, authenticate and deliver
the Certificated Note.
o. The Trustee will complete the Certificated Note in the form
approved by the Company and the Offering Agent, and will make
three copies thereof (herein called "Stub 1", "Stub 2" and "Stub
3"):
i. Certificated Note with the Offering Agent's confirmation,
if traded on a principal basis, or the Offering Agent's
customer confirmation, if traded on an agency basis.
ii. Stub 1 for Trustee.
iii. Stub 2 for Offering Agent.
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iv. Stub 3 for the Company.
p. With respect to each trade, the Trustee will deliver the
Certificated Note and Stub 2 thereof to the Offering Agent at the
following applicable address: Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Xxxxx Money Markets Clearance, 00
Xxxxx Xxxxxx, Xxxxxxxxx Level, N.S.C.C. Window, New York, New York
10041, Attention: Xxxxx Xxxxx, (000) 000-0000, telecopier: (212)
558-2457; Credit Department, Credit Control -- Medium-Term Notes,
Xxxxxxx Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
(000) 000-0000, telecopier (000) 000-0000; and X.X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Department, (000) 000-0000, telecopier
(000) 000-0000; and the Trustee will keep Stub 1. The Offering
Agent will acknowledge receipt of the Certificated Note through a
broker's receipt and will keep Stub 2. Delivery of the
Certificated Note will be made only against such acknowledgment of
receipt. Upon determination that the Certificated Note has been
authorized, delivered and completed as aforementioned, the
Offering Agent will wire the net proceeds of the Certificated Note
after deduction of its applicable commission to the Company
pursuant to standard wire instructions given by the Company.
q. In the case of a Certificated Note sold through the Offering
Agent, as agent, the Offering Agent will deliver such Certificated
Note (with the confirmation) to the purchaser against payment in
immediately available funds.
r. The Trustee will send Stub 3 to the Company.
Settlement Procedures
Timetable: For offers to purchase Certificated Notes accepted by
the Company, Settlement Procedures A through F set
forth above shall be completed as soon as possible
following the trade but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
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Failure to Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company shall
either fail to accept delivery of or make payment for
such Certificated Note on the date fixed for
settlement, the Offering Agent will forthwith notify
the Trustee and the Company by telephone, confirmed in
writing, and return such Certificated Note to the
Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Company and the Company will promptly arrange to credit
the account of the Offering Agent in an amount of
immediately available funds equal to the amount
previously paid to the Company by such Offering Agent
in settlement for such Certificated Note. Such credits
will be made on the Settlement Date if possible, and in
any event not later than the Business Day following the
Settlement Date; provided that the Company has received
notice on the same day. If such failure shall have
occurred for any reason other than failure by such
Offering Agent to perform its obligations hereunder or
under the Distribution Agreement, the Company will
reimburse such Offering Agent on an equitable basis for
its reasonable loss of the use of funds during the
period when the funds were credited to the account of
the Company. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and destroy such
Certificated Note, make appropriate entries in its
records to reflect the fact that such Certificated Note
was never issued, and accordingly notify in writing the
Company.
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