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Exhibit 1
TRW INC.
$500,000,000 Medium-Term Notes, Series C
Due Nine Months or More
From Date of Issue
Distribution Agreement
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X. X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048 March 21, 1996
New York, New York
Dear Sirs:
TRW Inc., an Ohio corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale by the Company of
up to U.S. $500,000,000 aggregate principal amount of its Medium-Term Notes Due
Nine Months or more from Date of Issue (the "Notes"). The Notes will be issued
under an Indenture dated as of May 1, 1986, between the Company and The Chase
Manhattan Bank (National Association), as successor trustee (the "Trustee"), as
supplemented by a First Supplemental Indenture dated as of August 24, 1989,
between the Company and the Trustee (as so supplemented, the "Indenture").
Notes denominated in U.S. dollars will be issued in minimum denominations of
U.S. $1,000 and in any denomination that is an integral multiple thereof.
Notes not denominated in U.S. dollars will be denominated as set forth in the
applicable supplement to the Prospectus referred to below. Each Note will be
represented by either a Global Security registered in the name of a nominee of
The Depository Trust Company, as Depositary (a "Book-Entry Note"), or a
certificate issued in definitive form (a "Certificated Note"), as set forth in
the applicable supplement to the Prospectus referred to below. The Notes will
be issued only in fully registered form and will have the annual interest
rates, maturities and, if appropriate,
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other terms set forth in a supplement to the Prospectus referred to below.
Administrative procedures with respect to the sale of Notes shall be agreed
upon from time to time by you and the Company (the "Procedures"). You and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by you and the Company herein and in the Procedures.
The Procedures may only be amended by written agreement of the Company and you
after notice to, and with the approval of, the Trustee. For the purposes of
this Agreement, the term "Agent" shall refer to any of you acting solely in the
capacity as agent for the Company pursuant to Section 2(a) and not as principal
(collectively, the "Agents"), the term the "Purchaser" shall refer to one of
you acting solely as principal pursuant to Section 2(b) and not as agent, and
the term "you" shall refer to you collectively whether at any time any of you
is acting in both such capacities or in either such capacity; PROVIDED,
HOWEVER, that for purposes of Sections 8 and 9 herein, any reference to the
"Agent" or "Agents" shall refer to any or all of you (as applicable) whether
acting in the capacity as agent for the Company or in the capacity as
Purchaser.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to, and agrees with, you as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") registration
statements on such Form (File Numbers: 33-42870 and 33-61711),
including a basic prospectus relating to such registration statements,
which have become effective, for the registration under the Act of
$500,000,000 aggregate principal amount of debt securities (the
"Securities"), including the Notes. Such registration statements, as
amended at the date of this Agreement, meet the requirements set forth
in Rule 415(a)(1)(ix) or (x) and comply in all other material respects
with said Rule. The Company has included in such registration
statements, or has filed or will file with the Commission pursuant to
Rule 424, a supplement to the form of prospectus included in such
registration statements relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection
with the sale of Notes, the Company proposes to file
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with the Commission pursuant to Rule 424 further supplements to the
Prospectus Supplement specifying the interest rates, maturity dates
and, if appropriate, other terms of the Notes sold pursuant hereto or
the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the
date of any Terms Agreement (as defined by Section 2(b)) and at the
date of delivery by the Company of any Notes sold hereunder (a
"Closing Date"), (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as supplemented as of any such time,
and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the respective rules
and regulations thereunder; (ii) the Registration Statement, as
amended as of any such time, did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) the Prospectus, as
supplemented as of any such time, will not contain any 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; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
of you specifically for use in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Execution Time" shall mean the date and time that this
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Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the Registration Statement at the Effective
Date. "Prospectus" shall mean the Basic Prospectus as supplemented by
the Prospectus Supplement. "Registration Statement" shall mean the
registration statement No. 33-61711 and the registration statement
No. 33-42870, as amended by such registration statement No. 61711,
including incorporated documents, exhibits and financial statements,
as amended at the Execution Time. "Rule 415" and "Rule 424" refer to
such rules under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(d) DUE INCORPORATION AND QUALIFICATION. The Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of Ohio with corporate power and
authority to own, lease and operate its properties and to conduct the
business being conducted by it as described in the Prospectus; and the
Company is duly qualified as a foreign corporation to transact
business 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 would not
have a material adverse effect on the financial condition or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and
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the Company is in good standing in the State of California and the
Commonwealth of Virginia.
(e) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder and, when read together and with the other
information in the Prospectus, 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, in
the light of the circumstances under which they were or are made, not
misleading.
(f) FINANCIAL STATEMENTS. The financial statements of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations for the periods specified;
and except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis.
(g) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth
in the Prospectus, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, against or affecting, the Company or any of its subsidiaries,
which might, in the opinion of the Company, result in any material
adverse change in the financial position of the Company and its
subsidiaries taken as a whole, or might materially and adversely
affect the assets of the Company and its subsidiaries taken as a
whole; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been so filed.
(h) AUTHORIZATION AND VALIDITY OF THE NOTES. The Notes have
been duly authorized for issuance and sale pursuant to this Agreement
and, when issued, authenti-
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cated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms
Agreement, the Notes will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles, and except further
as enforcement thereof may be limited by (i) requirements that a claim
with respect to any Notes denominated other than in United States
dollars (or a foreign currency or currency unit judgment in respect of
such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments in a foreign currency or currency units or payments outside
the United States; the Notes and the Indenture will be substantially
in the form heretofore delivered to the Agent and conform in all
material respects to all statements relating thereto contained in the
Prospectus; and the Notes will be entitled to the benefits provided by
the Indenture.
(i) RELATIONS WITH CUBA. The Company is in compliance with
all provisions of Section 1 of Laws of Florida, Chapter 92-198, AN ACT
RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and if the Company
or any of its subsidiaries commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the Commencement Date, or if the information reported in the
Prospectus, if any, concerning the business of the Company or any of
its subsidiaries with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the Florida
Department of Banking and Finance (the "Department") notice of such
business or change, as appropriate, in a form acceptable to the
Department.
SECTION 2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS
OF OFFERS TO PURCHASE; SALES OF NOTES TO A PURCHASER.
(a) Subject to the terms and conditions set forth herein and
subject to the reservation by the Company of
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the right to sell Notes directly to investors on its own behalf or
through other agents, the Company hereby authorizes each of the Agents
to act as its agent to solicit offers for the purchase of all or part
of the Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable best
efforts to solicit offers to purchase the Notes from the Company upon
the terms and conditions set forth in the Prospectus (and any
supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation
may be resumed.
The Company agrees to pay each Agent a commission on the
Closing Date, with respect to each sale of Notes by the Company as a
result of a solicitation made by such Agent, in an amount equal to
that percentage specified in Exhibit B hereto of the aggregate
principal amount of the Notes sold by the Company; PROVIDED, HOWEVER,
that the commission payable by the Company to each Agent with respect
to each such sale of Notes with maturities greater than 30 years will
be negotiated at the time the Company determines to issue such Notes.
Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an
Agent as agent for the Company at such time and in such amounts as
such Agent deems advisable. The Company may from time to time offer
Notes for sale otherwise than through an Agent. The Company reserves
the right to solicit or accept offers to purchase Notes through an
agent other than the Agents; PROVIDED, HOWEVER, that (i) in the case of
a continuous offering by such agent, the Company has entered into a
distribution agreement with such Agent with terms, conditions
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and obligations substantially identical to this Agreement and the
Company, promptly after entering into such distribution agreement,
notifies the Agents that it has done so, or (ii) in the case of a
specific purchase of Notes by such agent, the Company engages such
agent at a commission that is the same as that contained in Exhibit B
to this Agreement with respect to Notes of identical maturities, and
the Company, promptly after making such sale, notifies the Agents that
it has done so.
(b) Subject to the terms and conditions stated herein,
whenever the Company and one of you determines that the Company shall
sell Notes directly to you as Purchaser, each such sale of Notes shall
be made in accordance with the terms of this Agreement and any
supplemental agreement relating thereto between the Company and the
Purchaser. Each such supplemental agreement (which may be an oral
agreement between any Agent and the Company or may be written or
transmitted by any generally accepted form of telecommunication) is
herein referred to as a "Terms Agreement". Unless the context
otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms Agreement
between the Company and any Agent. Each such Terms Agreement, whether
oral or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit A hereto. The Purchaser's
commitment to purchase Notes pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall
describe the Notes to be purchased by the Purchaser pursuant thereto,
specify the principal amount of such Notes, the price to be paid to
the Company for such Notes, the rate at which interest will be paid on
the Notes, the Closing Date for such Notes, the place of delivery of
the Notes and payment therefor, the method of payment, any provisions
relating to the reoffering of the Notes and any requirements for the
delivery of the opinions of counsel, the certificates from the Company
or its officers, and the letter from the Company's independent public
accountants, pursuant to Section 6(b). Each Agent may offer Notes it
has purchased to other dealers, or may use a selling or dealer group
in connection with the resale of the Notes purchased, subject to the
Company's prior
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approval. Such Agent may sell Notes to any such approved dealer or
selling or dealer group at a discount, and unless otherwise specified
in the applicable Terms Agreement or Pricing Supplement, such discount
will not be in excess of the discount to be received by such Agent
from the Company.
Delivery of any certificates for Notes sold to the Purchaser
pursuant to any Terms Agreement shall be made as agreed to between the
Company and the Purchaser as set forth in the applicable Terms
Agreement, not later than the Closing Date set forth in such Terms
Agreement, against payment of funds to the Company in the net amount
due to the Company for such Notes by the method and in the form set
forth in the applicable Terms Agreement. Unless otherwise indicated
in an applicable Terms Agreement, any Note sold to an Agent as
principal shall be purchased by such Agent at a price equal to 100% of
the principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity, and may
be resold by such Agent as set forth herein.
SECTION 3. PROCEDURES FOR OFFERING AND SALE OF NOTES. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. AGREEMENTS. The Company agrees with you that:
(a) The Company will use its reasonable best efforts to cause
the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective. Prior to the
termination of the offering of the Notes, the Company will not file
any amendment of the Registration Statement or supplement to the
Prospectus (except for an amendment or supplement relating to an
offering of Securities other than the Notes) unless the Company has
furnished each of you a copy for your review prior to filing and will
not file any such proposed amendment or supplement (except for or
relating to an offering of Securities other than the Notes) to which
any of you reasonably objects. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus to be filed with
the Commission pursuant to Rule 424 within the time period prescribed.
The Company will
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promptly advise each of you (i) when the Registration Statement, if
not effective at the Execution Time, and any amendment thereto, shall
have become effective, (ii) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424, (iii) when, prior to the termination of the offering of the
Notes, any amendment of the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (i)
notify each of you to suspend solicitation of offers to purchase Notes
(and, if so notified by the Company, each of you shall forthwith
suspend such solicitation and cease using the Prospectus as then
supplemented), (ii) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or effect
such compliance and (iii) supply any supplemented Prospectus to each
of you in such quantities as you may reasonably request. If such
amendment or supplement, and any documents, certificates and opinions
furnished to each of you pursuant to this Section 4 in connection with
the preparation or filing of such amendment or supple-
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ment are satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and upon
the effectiveness of an amendment to the Registration Statement, if
such an amendment is required, resume your obligation to solicit
offers to purchase Notes hereunder.
(c) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(e) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you
may reasonably designate, will maintain such qualifications in effect
so long as required for the distribution of the Notes, and will
arrange for the determination of the legality of the Notes for
purchase by institutional investors.
(f) The Company, whether or not any sale of the Notes is
consummated, will pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and all amendments thereto and
the Prospectus and any amendments or supplements thereto; (ii) the
preparation, filing and printing of this Agreement; (iii) the
preparation, printing, issuance and delivery of the Notes; (iv) the
fees and disbursements of the Company's accountants and counsel, of
the Trustee and its counsel, and of any Calculation Agent or Exchange
Rate Agent; (v) the reasonable fees and disbursements of counsel to
the Agents incurred in connection with the transactions contemplated
hereby; (vi) the qualification of the Notes under securities laws in
accordance with the provisions of paragraph (e) of this Section 4,
including filing fees and the reasonable fees and disbursements of
counsel to the
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Agents in connection therewith and in connection with the preparation
of any Blue Sky Survey and any Legal Investment Survey; (vii) the
printing and delivery to you in quantities as hereinabove stated of
copies of the Registration Statement and any amendments thereto, and
of the Prospectus and any amendments or supplements thereto, and the
delivery by you of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of
the Notes; (viii) the preparation, printing and delivery to you of
copies of the Indenture; (ix) any fees charged by rating agencies for
the rating of the Notes; (x) the fees and expenses, if any, incurred
in connection with the listing of the Notes on any securities
exchange; (xi) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
and (xii) any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company.
(g) Each acceptance by the Company of an offer to purchase
Notes and each delivery of Notes will be deemed to be a reconfirmation
to you of the representations and warranties of the Company contained
herein.
(h) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement relating to any offering of Securities other than the Notes
or providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto), the Company will
deliver or cause to be delivered promptly to each of you a certificate
of the Company, signed by two officers, one of whom shall be the
principal financial officer, treasurer or controller of the Company,
and the other of whom shall be the chief executive officer, the chief
operational officer, an executive vice president, the general counsel
or any assistant or associate general counsel of the Company, dated
the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 5(d) but
modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the
Commission and to the Registration Statement and the Prospectus as
amended
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and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement.
(i) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to any offering of Securities other than the
Notes, (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto or (iii) setting forth
or incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such
financial statements or other information are of such a nature that an
opinion of counsel should be furnished), the Company shall furnish or
cause to be furnished promptly to each of you a written opinion of the
General Counsel, or any Associate or Assistant General Counsel
authorized to sign such opinion, of the Company reasonably
satisfactory to each of you, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in form
reasonably satisfactory to each of you, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement or, in lieu of such opinion, counsel last furnishing
such an opinion to you may furnish each of you with a letter to the
effect that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion will be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement).
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or
supplemental financial information, the Company shall cause its
independent public accountants promptly to furnish each of you a
letter, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with
such changes as may be
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necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date
of such letter; PROVIDED, HOWEVER, that, if the Registration Statement
or the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the
scope of such letter, which shall be reasonably satisfactory in form
to each of you, to the unaudited financial statements, the related
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and any other information of an accounting,
financial or statistical nature included in such amendment or
supplement, unless, in the reasonable judgment of any of you, such
letter should cover other information or changes in specified
financial statement line items.
(k) Unless otherwise specified in the applicable Terms
Agreement, during the period from and including the date of acceptance
of an offer to and including the date of settlement of such trade, the
Company shall not, without the prior consent of the Purchaser
thereunder, issue or announce the proposed issuance of any of its debt
securities, including Notes, with terms substantially similar to the
Notes being purchased pursuant to such Terms Agreement.
(l) During the period when a prospectus relating to the Notes
is required to be delivered under the Act, the Company will file
promptly all documents required to be filed with the Commission under
the Exchange Act.
(m) On or prior to the date on which the Company makes any
announcement to the general public concerning earnings or concerning
any other event which is required to be described, or which the
Company proposes to describe, in a document filed pursuant to the
Exchange Act, the Company will furnish the information contained or to
be contained in such announcement to each of you, confirmed in
writing. The Company will also furnish to each of you copies of all
other press releases or announcements to the general public relating
to a material change or prospective change in the condition
(financial, business or management) of the Company.
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(n) The Company will as promptly as possible notify each of
you in writing of any downgrading in the rating of the Notes or any
other debt securities of the Company or of its receipt of any notice
of (A) any intended or potential downgrading or (B) any review or
possible change that does not indicate the direction of a possible
change in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Act, as soon as
the Company learns of such downgrading or proposal to downgrade.
(o) On any Closing Date, the Company shall, if requested by
the Agent that solicited or received the offer to purchase the Notes
being delivered on such Closing Date, furnish such Agent with an
opinion of the General Counsel, or any Associate or Assistant General
Counsel authorized to sign such opinion of the Company, dated the
Closing Date, to the effect set forth in clauses (i) and (iii) of
Section 5(b), but modified, as necessary, to relate to the Prospectus
as amended or supplemented at such Closing Date and except that such
opinion shall state that the Notes being sold by the Company on such
Closing Date, when delivered against payment therefor as provided in
the Indenture and this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute the valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject only to the exceptions set forth in clause
(iv) of Section 5(b), and will conform to the description thereof
contained in the Prospectus as amended or supplemented at such Closing
Date.
SECTION 5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The
obligations of each Agent to solicit offers to purchase the Notes shall be
subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the Commission and as of
each Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
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(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement as amended shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have furnished to each Agent the
opinion of either the General Counsel or any Associate or Assistant
General Counsel for the Company, dated the Execution Time, to the
effect that:
(i) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Ohio, with full corporate power and authority to own
its properties and conduct the business conducted by it as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing in
any jurisdiction where it has material property or assets, and
is duly qualified to do business as a foreign corporation and
is in good standing in each other jurisdiction where the
character of its properties or the nature of its business
requires such qualification (except where the failure to so
qualify would not have a material adverse effect on the
financial condition, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries taken
as a whole); and the Company is in good standing in the State
of California and the Commonwealth of Virginia;
(ii) the Company's authorized equity capitalization
is as set forth in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
(iii) (if the Company has one or more Significant
Subsidiaries at the date of such opinion)
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each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and conduct its business as
described in the Registration Statement, and is duly qualified
to do business as a foreign corporation and is in good
standing in any jurisdiction where such Significant Subsidiary
has material property or assets, and is duly qualified to do
business as a foreign corporation and is in good standing in
each other jurisdiction where the character of its properties
or the nature of its business requires such qualification
(except where the failure to so qualify would not have a
material adverse effect on the financial condition, or the
earnings, business affairs or business prospects of the
Company and its subsidiaries taken as a whole); all of the
issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued and is
fully paid and nonassessable, and all of such capital stock,
except for directors' qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of
any mortgage, pledge, lien, encumbrance, claim or equity. For
purposes of this paragraph a "Significant Subsidiary" shall
mean a "significant subsidiary" as defined in Rule 405 of
Regulation C under the Act;
(iv) the Indenture has been duly authorized, executed
and delivered by or on behalf of the Company, has been duly
qualified under the Trust Indenture Act and, assuming the
Indenture has been duly authorized, executed and delivered by
the Trustee, constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
except as the enforcement of remedies may be (i) limited by
bankruptcy, insolvency, debtor reorganization, moratorium
laws, or debtor relief proceedings or similar laws or
proceedings affecting creditors' rights generally or (ii)
subject to the effect of general principles of equity, whether
applied by a court of law or equity; and the Notes have been
duly authorized and, when executed and authenticated in
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accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture except as the enforcement of
remedies may be (i) limited by bankruptcy, insolvency, debtor
reorganization, moratorium laws, or debtor relief proceedings
or similar laws or proceedings affecting creditors' rights
generally or (ii) subject to the effect of general principles
of equity, whether applied by a court of law or equity;
(v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424; to
the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement and the
Prospectus (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason
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to believe that the Registration Statement at the Effective
Date or at the Execution Time contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that such
counsel need express no opinion as to (A) that part of the
Registration Statement, as amended, which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (B) the information
contained in or omitted from the Registration Statement or any
amendment thereof or the Prospectus in reliance upon and in
conformity with written information furnished to the Company
by or on behalf of any Agent specifically for use in the
Registration Statement or any amendment thereof or the
Prospectus;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under, the Amended Articles of Incorporation or Regulations of
the Company or the terms of any indenture or other agreement
or instrument known to such counsel and to which the Company
or any of its
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Significant Subsidiaries is a party or bound, or any order or
regulation known to such counsel to be applicable to the
Company or any of its Significant Subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
Significant Subsidiaries; and
(x) to the best knowledge of such counsel, no holders
of securities of the Company have rights to the registration
of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Ohio or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Agent and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Xxxxxxx, Xxxxxx &
Xxxxx, counsel for the Agents, such opinion or opinions, dated the date hereof,
with respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Agents may reasonably require, and the Company
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by two officers of the Company, one of whom
shall be the principal financial officer, treasurer or controller of the
Company, and the other of whom shall be the chief executive officer, an
executive vice president, the general counsel or any assistant or associate
general counsel of the Company, dated the Execution Time, to the effect that
the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this Agreement
and that:
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(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date thereof with the same effect as if made on the date thereof
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied as a condition
to the obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the financial condition, earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus.
(e) At the Execution Time, Xxxxx & Xxxxx shall have furnished
to each Agent a letter or letters (which may refer to letters previously
delivered to the Agents), dated as of the Execution Time, in form and substance
satisfactory to the Agents, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial statements,
financial statement schedules and pro forma financial statements, if
any, included or incorporated in the Registration Statement and the
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in
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such letter; a reading of the minutes of the meetings of the
shareholders, directors and executive committee of the Company; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements included or incorporated
in the Prospectus, nothing came to their attention which caused them
to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus;
(2) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule information), audited or unaudited, in or incorporated
in the Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five business
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of the
Company or decreases in the shareholders' investment of the
Company as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements included
or incorporated in the Registration Statement and the
Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year
in net sales or other income, in earnings before income taxes
or in total or per share amounts (primary and fully diluted)
of earnings or net earnings of the
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Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation
is not deemed necessary by the Agents; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information included
or incorporated in Item 1 (excluding information relating to backlog)
and Items 6 and 7 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included
or incorporated in the Registration Statement and the Prospectus, on
the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries of
certain officials of the Company and the acquired company who have
responsibility for financial and accounting matters, and proving the
arithmetic accuracy
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of the application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to their
attention which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents, certificates and
opinions of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at
any time by the Agents. Notice of such cancelation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Agents,
at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date hereof.
SECTION 6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser to purchase any Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein as of the date of any related Terms Agreement and as of the Closing Date
for such Notes, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
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(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to
the extent modified by such Terms Agreement, the Purchaser shall have
received, appropriately updated, (i) a certificate of the Company,
dated as of the Closing Date, to the effect set forth in Section 5(d)
(except that references to the Prospectus shall be to the Prospectus
as supplemented at the time of execution of the Terms Agreement), (ii)
the opinion of the General Counsel, an Associate General Counsel or an
Assistant General Counsel for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion of
Xxxxxxx, Swaine & Xxxxx, counsel for the Purchaser, dated as of the
Closing Date, to the effect set forth in Section 5(c), and (iv) the
letter of Xxxxx & Xxxxx, independent accountants for the Company,
dated as of the Closing Date, to the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and any Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement shall
not be in all material respects reasonably satisfactory in form and substance
to the Purchaser and its counsel, such Terms Agreement and all obligations of
the Purchaser thereunder and with respect to the Notes subject thereto may be
canceled at, or at any time prior to, the respective Closing Date by the
Purchaser. Notice of such cancelation shall be given to the Company in writing
or by telephone or telegraph confirmed in writing.
SECTION 7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE
TO PURCHASE. The Company agrees that any person who has agreed to purchase and
pay for any Note, including a Purchaser and any person who purchases pursuant
to a solicitation by any of the Agents, shall have the right to refuse to
purchase such Note if, at the Closing Date therefor,
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either (a) any condition set forth in Section 5 or 6, as applicable, shall not
be satisfied or (b) subsequent to the agreement to purchase such Note, any
change, condition or development specified in subsections (b)(i) through (v) of
Section 10 hereto shall have occurred.
SECTION 8. INDEMNIFICATION. (a) INDEMNIFICATION OF THE
AGENTS. The Company agrees to indemnify and hold harmless each Agent and each
person, if any, who controls such Agent within the meaning of Section 15 of the
Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any 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 any untrue statement or alleged untrue statement of a
material fact contained in 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 investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by you), as incurred,
reasonably incurred in investigating, preparing or defending against
any litigation, or 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 (i) or (ii) above;
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PROVIDED, HOWEVER, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any 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 an Agent expressly for use in
the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or made in
reliance upon the Trustee's Statement of Eligibility and Qualification
under the Trust Indenture Act filed as an exhibit to the Registration
Statement.
(b) INDEMNIFICATION OF COMPANY. Each Agent 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 Act against any and all
loss, liability, claim, damage and expense (including reimbursement of moneys
paid pursuant to subsection (a) herein which are subsequently found to be
indemnifiable under this subsection (b)) described in the indemnity contained
in subsection (a) of this Section, 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 the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt notice
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
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
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SECTION 9. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 8 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company and you shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Agents, as incurred, in such proportions that
each Agent is responsible for that portion represented by each percentage that
the total commissions and underwriting discounts received by such Agent to the
date of such liability bears to the total sales price received by the Company
from the sale of Notes to the date of such liability, and the Company is
responsible for the balance; PROVIDED, HOWEVER, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls the Agent within the meaning of Section 15 of the Act shall
have the same rights to contribution as you, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the Act shall have the same rights to contribution as the Company.
SECTION 10. TERMINATION. (a) TERMINATION OF THIS AGREEMENT.
This Agreement may be terminated for any reason, at any time by either the
Company with respect to any Agent or any Agent with respect to itself, upon the
giving of 30 days' written notice of such termination to each other party
hereto.
(b) TERMINATION OF A TERMS AGREEMENT. An Agent who is party
to a Terms Agreement may terminate such Terms Agreement, immediately upon
notice to the Company, at any time prior to the Closing Date relating thereto
(i) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement, any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries shall
have occurred the effect of which is, in the judgment of such Agent, so
material and adverse to the Company and its subsidiaries taken as a whole as to
make it impractical or inadvisable to proceed with the delivery of such Note or
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(ii) if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis, the effect of which shall
be such as to make it, in the judgment of such Agent, impracticable to market
the Notes or enforce contracts for the sale of the Notes, or (iii) if trading
in any securities of the Company shall have been suspended by the Commission or
a national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (iv) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of any applicable Terms Agreement
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has placed any debt securities of the Company on
what is commonly termed a "watch list" for possible downgrading, or (v) if
there shall have come to the attention of such Agent any facts that would cause
you to believe that the Prospectus, at the time it was required to be delivered
to a purchaser of Notes, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such delivery,
not misleading.
(c) GENERAL. In the event of any termination pursuant to
paragraph (a), neither party will have any liability to the other party hereto,
except that (i) each Agent shall be entitled to any commissions earned in
accordance with the fourth paragraph of Section 2(a) hereof, (ii) if at the
time of termination (a) you shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them 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 the Note or Notes relating thereto has not occurred,
the covenants set forth in Section 4 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and
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(iii) the covenant set forth in Section 4(m) hereof, the provisions of Section
4(f) hereof, the indemnity and contribution agreements set forth in Sections 8
and 9 hereof, and the provisions of Sections 12 and 14 hereof shall remain in
effect.
SECTION 11. STATUS OF THE AGENTS. Except when an Agent is
purchasing Notes as a Purchaser pursuant to a Terms Agreement, in soliciting
purchases of the Notes on behalf of the Company, the Agents are acting
individually and not jointly and are acting solely as agent for the Company and
not as principal. Each Agent will make all reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by the Agent and accepted by the
Company, but such Agent shall have no liability to the Company in the event
that any such purchase is not consummated for any reason. If the Company shall
default on its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall (i) hold the Agents harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of you or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
4(f) and 8 hereof shall survive the termination or cancelation of this
Agreement.
SECTION 13. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Agents shall be directed to Xxxxxx Xxxxxxx & Co. Incorporated, 1585
Broadway (2nd Floor), New York, New York 10036, attention of Managing Director,
Continuously Offered Products (Telephone (000) 000-0000; Telecopy: (212)
761-0783) and Xxxxxx Xxxxxxx & Co. Incorporated, 1585 Broadway (00xx Xxxxx),
Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx Xxxxxx, Investment Banking
Information Center
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(Telephone: (000) 000-0000; Telecopy: (000) 000-0000); X. X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx
xx Xxxxxx-Term Note Desk (Telephone: (000) 000-0000; Telecopy: (212)
837-5909); Salomon Brothers Inc, Seven World Trade Center, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of Medium Term Note Department (Telephone:
(000) 000-0000; Telecopy: (000) 000-0000); notices to the Company shall be
directed to it at TRW Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000-0000,
attention of Treasurer and attention of Secretary.
SECTION 14. PARTIES. This Agreement and any Terms Agreement
shall inure to the benefit of and be binding upon you and the Company and your
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 and officers and directors referred to in Sections 8
and 9 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 and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation, except as expressly contemplated in Section
7 herein. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
SECTION 15. GOVERNING LAW. This Agreement and the rights and
obligations of the parties created hereby shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State. 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.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument
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32
along with all counterparts will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
TRW INC.,
by /s/ Xxxxxxx X. Xxxxxx Xx.
--------------------------
Title: Vice President and
Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED,
by /s/ Xxx Xxxxxxxx
-------------------------
Title: Principal
X. X. XXXXXX SECURITIES INC.,
by /s/ Xxxxx Xxxxxx
-------------------------
Title: Vice President
SALOMON BROTHERS INC,
by /s/ Xxxxxx Xxxxxxx
-------------------------
Title: Vice President
33
EXHIBIT A
The following terms, if applicable, shall be agreed to by you
and the Company pursuant to each Terms Agreement:
Principal Amount: $
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: %
Provisions Relating to Reoffering, if any:
Closing Date, Time and Place:
Currency of Denomination:
Denominations (if currency is other than U.S.
dollar):
Currency Payment:
Additional Terms:
Also, agreement as to whether the following will be required, and if so,
whether in modified form:
Officer's Certificate pursuant to Section 6(b)(i)
of the Distribution Agreement.
Legal Opinion pursuant to Section 6(b)(ii) of the
Distribution Agreement.
Legal Opinion pursuant to Section 6(b)(iii) of the
Distribution Agreement.
Comfort Letter pursuant to Section 6(b)(iv) of the
Distribution Agreement.
34
EXHIBIT B
COMMISSION
MATURITY RANGES RATE
--------------- ----
More than 9 mos. to less than 1 yr. .125%
1 yr. to less than 18 mos. .150
18 mos. to less than 2 yrs. .200
2 yrs. to less than 3 yrs. .250
3 yrs. to less than 4 yrs. .350
4 yrs. to less than 5 yrs .450
5 yrs. to less than 6 yrs. .500
6 yrs. to less than 7 yrs. .550
7 yrs. to less than 8 yrs. .600
8 yrs. to less than 9 yrs. .600
9 yrs. to less than 10 yrs. .600
10 yrs. to less than 15 yrs. .625
15 yrs. to less than 20 yrs. .700
20 yrs. to 30 yrs. .750
35
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE NOTES
(Dated as of March 21, 1996)
Medium-Term Notes (the "Notes") in the aggregate principal
amount of up to U.S. $500,000,000 are to be offered on a continuing basis by
TRW Inc. (the "Company") through Xxxxxx Xxxxxxx & Co. Incorporated, X.X. Xxxxxx
Securities Inc. and Salomon Brothers Inc who, as agents (each an "Agent", and,
collectively, the "Agents"), have agreed to use their best efforts to solicit
offers to purchase the Notes from the Company. The Agents may also purchase
Notes as principal for resale.
The Notes are being sold pursuant to a Distribution Agreement
between the Company and the Agents, dated as of March 21, 1996 (the
"Distribution Agreement"). The Notes will be issued pursuant to an Indenture
dated as of May 1, 1986, between the Company and The Chase Manhattan Bank
(National Association), as successor trustee (the "Trustee") as amended and
supplemented by a First Supplemental Indenture dated as of August 24, 1989,
between the Company and the Trustee (as so amended and supplemented, the
"Indenture"). Pursuant to Sections 3.01, 3.03 and 5.02 of the Indenture, the
Trustee will act as paying agent and registrar for the Notes (hereinafter, when
acting in such capacity, the "Paying Agent") and as calculation agent (the
"Calculation Agent"). Registration Statements on Form S-3 (File Numbers:
33-42870 and 33-61711) (collectively, the "Registration Statement", which term
shall include any additional registration statements filed in connection with
the Notes as provided in the introductory paragraph of the Distribution
Agreement) with respect to the Notes has been filed with the Securities and
Exchange Commission (the "Commission"). The most recent basic Prospectus
included in the Registration Statement, as supplemented with respect to the
Notes, is herein referred to as the "Prospectus Supplement". The accompanying
supplement to the Prospectus Supplement with respect to the specific terms of
the Notes is herein referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes (each, a "Book-Entry Note")
delivered to the Paying Agent, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
certificated form delivered to the purchaser thereof or a person designated by
such purchaser. Owners of beneficial interests in Notes issued in book-entry
form will be entitled to physical delivery of Notes in certificated form equal
in principal amount to their respective
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beneficial interests only upon certain limited circumstances described in the
Indenture and the Prospectus Supplement.
Administrative procedures and specific terms of the offering are
explained below.
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 administrative procedures set forth in
Part II hereof and Notes issued in certificated form will be issued in
accordance with the administrative procedures set forth in Part III hereof.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Indenture or the Notes (which in the case of
Notes issued in book-entry form shall be the related Book-Entry Note) 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 (the "Original Issue Date") which
shall be the settlement date relating to such Note. 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 selected by the purchaser
and agreed to by the Company which is not less than nine
months from its Original Issue Date; PROVIDED, HOWEVER,
that Notes bearing interest at rates determined by
reference to selected indices ("Floating Rate Notes")
will mature on an Interest Payment Date.
Registration: Notes will be issued only in fully registered form.
Calculation of
Interest: In the 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.
In the
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37
case of Floating Rate Notes, interest will be calculated
and paid on the basis of the actual number of days in the
interest period divided by 360 or by the actual number of
days in the year, in the case of Treasury Rate Notes and
CMT Rate Notes.
Acceptance and
Rejection of
Offers: The Company shall have the sole right to accept offers to
purchase Notes from the Company and may reject any such
offer in whole or in part. The Agents shall communicate
to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it.
The Agents shall have the right, in their discretion
reasonably exercised, without notice to the Company, to
reject any offer to purchase Notes in whole or in part.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by the
Company, the Company, with the approval of the Agent
which presented such offer (the "Presenting Agent"), will
prepare a Pricing Supplement reflecting the terms of such
Note and file such Pricing Supplement relating to the
Notes and the plan of distribution thereof (the
"Supplemented Prospectus"), with the Commission in
accordance with Rule 424 under the Act and will supply by
next day mail or telecopy at least one copy thereof (and
additional copies if requested) to the Presenting Agent
to arrive no later than 11:00 a.m. on the Business Day
following the trade date. The Presenting Agent will
cause a stickered Supplemented Prospectus to be delivered
to the purchaser of the Note. Such Supplemented
Prospectus will be delivered to the Presenting Agent at
the following applicable address: Xxxxxx Xxxxxxx & Co.
Incorporated, Fixed Income, 0000 Xxxxxxxx (0xx Xxxxx),
Xxx Xxxx, XX 00000, attention of Xxxxxx Xxxxxxx,
Telephone: (000) 000-0000, Telecopy: (000) 000-0000;
X.X. Xxxxxx Securities Inc.,
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Documentation Group (Third Floor), 00 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, xxxxxxxxx xx Xxxxx Xxxxx, Telephone:
(212) 648- 1606, Telecopy: (000) 000-0000; and Salomon
Brothers Inc, TPOD-Balancing Operations, 0000 Xxxxxx
Xxxxx Xxxxxxx, Xxxxx, XX 00000, attention of Xxxxxxx
Xxxxxx, Telephone: (000) 000-0000, Telecopy: (813)
558-4123.
In each instance that a Pricing Supplement is prepared,
the Agents will affix the Pricing Supplement to
Supplemented Prospectuses prior to their use. Outdated
Pricing Supplements, and the Supplemented Prospectuses to
which they are attached (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 three Business Days from the trade date or at a
time as the purchaser and the Company shall agree,
pursuant to the timetable for settlement set forth in
Parts II and III hereof under "Settlement Procedures"
with respect to Book-Entry Notes and Certificated Notes,
respectively. If procedures A and B of the applicable
Settlement Procedures with respect to a particular offer
are not completed on or before the time set forth under
the applicable "Settlement Procedures Timetable," such
offer shall not be settled until the Business Day
following the completion of settlement procedures A and B
or such later date as the purchaser and the Company shall
agree.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be as
agreed between the Agent and the Company pursuant to the
applicable Terms Agreement. Such settlement details
shall include confirmation by the Company of the terms of
such purchase to the Agent.
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39
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 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 advises the Agents 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 at a new interest rate or new
variable term, the Company, the Presenting Agent and the
Paying Agent shall follow the procedures set forth under
the applicable "Settlement Procedures". The foregoing
procedure for changes shall in no way affect the
Company's right to suspend all solicitations of offers to
purchase Notes as set forth in the Distribution
Agreement.
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of purchases 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 them that
solicitation of offers to purchase may be resumed. If
the Company decides to amend the Registration Statement
(including incorporating any documents by reference
therein) or supplement any of such documents (other than
to change rates or other variable terms), it will
promptly advise the Agents and will furnish the Agents
and their counsel with copies of the proposed amendment
(including any document proposed to be incorporated by
reference therein) or
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40
supplement (except an amendment or supplement which
relates exclusively to an offering of debt securities
other than the Notes). One copy of such filed document,
along with a copy of the cover letter sent to the
Commission, will be delivered or mailed to the Agents at
the following respective addresses: Xxxxxx Xxxxxxx
& Co. Incorporated, Managing Director, Continuously
Offered Products, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, with a copy to: Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000,
attention of Xxxxx Xxxxxx, Investment Banking
Information Center; X.X. Xxxxxx Securities, Inc.,
Documentation Unit, 00 Xxxx Xxxxxx (0xx Xxxxx), Xxx
Xxxx, XX 00000, attention of Xxxxx Xxxxx; and Xxxxxxx
Xxxxxxxx Inc, Seven World Trade Center, New York, NY
10048, attention of Medium-Term Note Department.
In the event that at the time the solicitation of offers
to purchase from the Company is suspended (other than to
change interest rates or other variable terms) there
shall be any orders outstanding which have not been
settled, the Company will promptly advise the Agents and
the Paying Agent whether such orders may be settled and
which copies of the Prospectus may be delivered in
connection with the settlement of such orders. 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 orders
may not be settled or that copies of such Prospectus may
not be so delivered.
Delivery of
Prospectus: A copy of the most recent Prospectus, Prospectus
Supplement and Pricing Supplement must accompany or
precede the earlier of (a) the written confirmation of a
sale sent to a customer or his Agent and (b) the delivery
of Notes to a customer or his Agent.
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41
Authenticity of
Signatures: The Agents will have no obligations or liability to the
Company or the Trustee in respect of the authenticity of
the signature of any officer, employee or agent of the
Company or the Trustee on any Note.
Documents
Incorporated
by Reference: The Company shall supply the Agents with an adequate
supply of all documents incorporated by reference in the
Registration Statement.
Business Day: "Business Day" means any day, other than a Saturday or
Sunday, that meets each of the following applicable
requirements: the day is (a) not a day on which banking
institutions are authorized or required by law or
regulation to be closed in The City of New York and (b)
if the Note is denominated in a Specified Currency other
than U.S. Dollars, (i) not a day on which banking
institutions are authorized or required by law or
regulation to close in the major financial center of the
country issuing the Specified Currency (which in the case
of ECU shall be as determined by the ECU Banking
Association in Paris) and (ii) a day on which banking
institutions in such financial center are carrying out
transactions in such Specified Currency and, (c) with
respect to LIBOR Notes, a London Banking Day. "London
Banking Day" means any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank
market.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee or
the Paying Agent to risk or expend its own funds in
connection with any payment to the Company, DTC, any
holder of a Note or the Agents, it being understood by
all parties that payments made by the Trustee or the
Paying Agent to the Company, DTC, any holder of a Note or
the Agents shall be made only to the extent that funds
are provided to the Trustee or the Paying Agent for such
purpose.
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42
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 obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated March 21, 1996,
and a Medium-Term Note Certificate Agreement, dated March 10, 1989,
between the Trustee and DTC 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, interest rate, and Stated
Maturity (collectively, the "Fixed Rate Terms") will be
represented initially by a single global security in
fully registered form without coupons (each, a
"Book-Entry Note"); and all Floating Rate Notes issued in
book-entry form having the same Original Issue Date, base
rate upon which interest may be determined (each, a "Base
Rate"), which may be the Commercial Paper Rate, LIBOR,
any other rate set forth by the Company, Initial Interest
Rate, Index Maturity, Spread and/or Spread Multiplier, if
any, minimum interest rate, if any, maximum interest
rate, if any, and Stated Maturity (collectively,
"Floating Rate Terms") will be represented initially by a
single Book-Entry Note. Unless otherwise specified in
the applicable Pricing Supplement, all Notes which are
DTC eligible will be issued as Book-Entry Notes.
Each Book-Entry Note will be dated and issued as of the
date of its authentication by the Paying Agent. Each
Book-Entry Note will bear an Interest Accrual Date, which
will be (a) with respect to an original Book-Entry Note
(or any portion thereof), its Original Issue Date and (b)
with respect to any Book-Entry Note (or portion thereof)
issued subsequently upon exchange of a Book-Entry Note or
in lieu of a destroyed, lost or stolen Book-Entry Note,
the most recent Interest Payment Date to which interest
has been paid or duly
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43
provided for on the predecessor Book-Entry Note or Notes
(or if no such payment or provision has been made, the
Original Issue Date of the predecessor Book-Entry Note or
Notes), regardless of the date of authentication of such
subsequently issued Book-Entry Note. No Book-Entry Note
shall represent any Note issued in certificated form.
Identification: The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's corporation (the "CUSIP Service
Bureau") for the reservation of approximately 900 CUSIP
numbers which have been reserved for future assignment to
Book-Entry Notes representing Notes issued in book-entry
form and the Company has delivered to the Trustee and DTC
an initial written list of 900 of such CUSIP numbers.
The Company will assign CUSIP numbers to Book-Entry 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 Book-Entry
Notes. At any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Book-Entry Notes,
and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Book-Entry
Notes representing Notes issued in book-entry form. Upon
obtaining such additional CUSIP numbers, the Company will
deliver a list of such additional numbers to the Trustee
and DTC, if requested.
Registration: Each Book-Entry Note will be registered in the name of
Cede & Co., as nominee for DTC, on the register
maintained by the Paying Agent under the Indenture. The
beneficial owner of a Note issued in book-entry form
(I.E., an owner of a beneficial interest in a Book-Entry
Note) (or one or more indirect participants in DTC
designated by such owner) will designate one or more
participants in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as agent for
such beneficial owner in connection with the book-entry
system
9
44
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 a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the
CUSIP numbers of two or more Book-Entry Notes outstanding
on such date that represent Book-Entry Notes having the
same Fixed Rate Terms or Floating Rate Terms (other than
Original Issue Dates), as the case may be, 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 Book-Entry Notes shall be exchanged
for a single replacement Book-Entry Note; and (c) a new
CUSIP number, obtained from the Company, to be assigned
to such replacement Book-Entry 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
Book-Entry Notes to be
10
45
exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Book-Entry
Notes for a single Book-Entry Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Book-Entry
Notes will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Book-Entry Notes to
be exchanged exceed $200,000,000 in aggregate principal
amount, one replacement Book-Entry Note will be
authenticated and issued to represent $200,000,000 of
principal amount of the exchanged Book-Entry Notes and
an additional Book-Entry Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (See
"Denominations" below).
Denominations: All Notes issued in book-entry form will be denominated
in U.S. dollars. Notes issued in book-entry form will be
issued in denominations of $1,000 and any integral
multiple thereof. Book-Entry Notes will be denominated
in principal amounts not in excess of $200,000,000. If
one or more Notes issued in book-entry form having an
aggregate principal amount in excess of $200,000,000
would, but for the preceding sentence, be represented by
a single Book-Entry Note, then one Book-Entry Note will
be issued to represent $200,000,000 principal amount of
such Note or Notes issued in book-entry form and an
additional Book-Entry Note or Notes will be issued to
represent any remaining principal amount of such Note or
Notes issued in book-entry form. In such a case, each of
the Book-Entry Notes representing such Note or Notes
issued in book-entry form shall be assigned the same
CUSIP number.
Interest: GENERAL. Interest on each Note issued in book-entry form
will accrue from the Interest Accrual Date of the
Book-Entry Note representing such Note. Each payment of
interest on a Note issued in book-entry form will include
interest accrued through the day preceding, as the case
may be, the Interest
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46
Payment Date (PROVIDED that in the case of Floating Rate
Notes which reset daily or weekly interest payments will
include interest accrued to but excluding the Regular
Record Date immediately preceding the Interest Payment
Date), or Stated Maturity (each Stated Maturity is
referred to herein as a "Maturity"). Interest payable at
Maturity of a Note issued in book-entry form will be
payable to the Person to whom the principal of such Note
is payable. DTC will arrange for each pending deposit
message described under Settlement Procedure C below to
be transmitted to Standard & Poors, which will use the
information in the message to include certain terms of
the related Book-Entry Note in the appropriate daily bond
report published by Standard & Poor's.
REGULAR RECORD DATES. The Regular Record Date with
respect to any Interest Payment Date for a Fixed Rate
Note shall be the March 31 or September 30 preceding such
Interest Payment Date. The Regular Record Date with
respect to any Interest Payment Date for a Floating Rate
Note shall be the date 15 calendar days (whether or not a
Business Day) preceding such 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
Book-Entry Note originally issued between a Regular
Record Date and an Interest Payment Date will occur on
the Interest Payment Date following the next Regular
Record Date.
If an Interest Payment Date with respect to any Floating
Rate Note issued in book-entry form would otherwise fall
on a day that is not a Business Day with respect to such
Note, such Interest Payment Date will be the following
day that is a Business Day with respect to such Note,
except that in the case of a LIBOR Note, if such day
falls in the
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47
next calendar month, such Interest Payment Date will be
the preceding day that is a London Business Day.
FIXED RATE NOTES. Interest payments on Fixed Rate Notes
issued in book-entry form will be made semiannually on
April 15 and October 15 of each year and at Maturity.
FLOATING RATE NOTES. In the case of the Floating Rate
Notes issued in book-entry form which reset daily or
weekly, interest payments shall include accrued interest
from, and including, the date of issue or from, but
excluding, the last date in respect of which interest has
been accrued and paid, as the case may be, through, and
including, the Regular Record Date, except that at
maturity the interest payable will include interest
accrued to, but excluding, the maturity date. For
additional special provisions relating to Floating Rate
Notes, see the Prospectus Supplement.
NOTICE OF INTEREST RATES. On the first Business Day of
each January, April, July and October of each year, the
Paying Agent will deliver to the Company and DTC a
written list of Regular Record Dates and Interest Payment
Dates that will occur during the six-month period
beginning on such first Business Day with respect to
Floating Rate Notes issued in book-entry form. Promptly
after each Interest Determination Date for Floating Rate
Notes issued in book-entry form, the Calculation Agent
will notify Standard & Poor's of the interest rates
determined on such Interest Determination Date.
Payments of
Principal and
Interest: PAYMENTS OF INTEREST ONLY. Promptly after each Regular
Record Date, the Paying Agent will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Book-Entry Note on
the following Interest Payment Date (other than an
Interest Payment Date
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48
coinciding with Maturity) and the total of such amounts.
DTC will confirm the amount payable on each Book-Entry
Note on such Interest Payment Date by reference to the
daily bond reports published by Standard & Poor's. On
such Interest Payment Date, the Company will pay to the
Paying Agent, and the Paying Agent in turn will pay to
DTC, such total amount of interest due (other than at
Maturity), at the times and in the manner set forth below
under "Manner of Payment".
PAYMENTS AT MATURITY. On or about the first Business Day
of each month, the Paying Agent will deliver to the
Company and DTC a written list of principal, interest and
premium, if any, to be paid on each Book-Entry Note
maturing either at Stated Maturity or on a Redemption
Date in the following month. The Paying Agent, the
Company and DTC will confirm the amounts of such
principal and interest payments with respect to a
Book-Entry Note on or about the fifth Business Day
preceding the Maturity of such Book-Entry Note. At such
Maturity, the Company will pay to the Paying Agent, and
the Paying Agent in turn will pay to DTC, the principal
amount of such Note, together with interest and premium,
if any, due at such Maturity, at the times and in the
manner set forth below under "Manner of Payment". If any
Maturity of a Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such Maturity.
Promptly after payment to DTC of the principal, interest
and premium, if any, due at the Maturity of such
Book-Entry Note, the Paying Agent will deliver to the
Trustee for cancelation such Book-Entry Note. The
Trustee will cancel such Book-Entry Note and deliver it
to the Company with an appropriate debit advice, together
with a statement setting forth the principal amount of
Notes issued and outstanding as of the related Maturity
Date.
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MANNER OF PAYMENT. The total amount of any principal,
premium, if any, and interest due on Book-Entry Notes on
any Interest Payment Date or at Maturity shall be paid by
the Company to the Paying Agent in funds available for
use by the Paying Agent as of 9:30 a.m., New York City
time, on such date. The Company will make such payment
on such Book-Entry Notes by instructing the Paying Agent
to withdraw funds from an account maintained by the
Company at the Paying Agent. The Company will confirm
such instructions in writing to the Paying Agent. On
such date or as soon as possible thereafter, the Paying
Agent will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously specified
by DTC) to an account at the Federal Reserve Bank of New
York previously specified by DTC, in funds available for
immediate use by DTC, each payment of interest, principal
and premium, if any, due on a Book-Entry Note 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 such Notes
are recorded in the book-entry system maintained by DTC.
Neither the Company nor the Paying Agent shall have any
responsibility or liability for the payment by DTC of the
principal of, or interest on, the Book-Entry Notes to
such Participants.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Acceptance and
Rejections of
Offers: The Company shall have the sole right to accept offers to
purchase Notes from the Company and may reject any such
offer in
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whole or in part. Each Agent shall promptly communicate
to the Company, orally or in writing, each reasonable
offer to purchase Book-Entry Notes from the Company
received by it, other than those rejected by such Agent.
The Agents shall have the right, in their discretion
reasonably exercised, without notice to the Company, to
reject any offer to purchase Notes in whole or in part.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by each Agent, as agent of the
Company, will be as follows:
A. The Agent will advise the Company by
telephone of the following Settlement
information, confirmed promptly thereafter by
facsimile:
1. Taxpayer identification number of
the purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) interest rate;
(b) sinking fund or redemption
date, if any; and
(c) sinking fund or redemption
prices, if any
Floating Rate Notes:
(a) interest rate basis;
(b) initial interest rate;
(c) spread or spread multiplier,
if any;
(d) interest rate reset dates;
(e) interest rate reset period;
(f) interest payment dates;
(g) interest payment period;
(h) index maturity;
(i) calculation agent (if other
than the Trustee);
(j) maximum interest rate, if
any;
(k) minimum interest
rate, if any;
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(l) calculation date;
(m) interest determination dates;
(n) sinking fund or redemption
date, if any; and
(o) sinking fund or redemption
prices, if any.
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue
Date).
7. Maturity.
8. Net proceeds to the Company.
9. Agent's commission.
B. The Company will assign a CUSIP number
to the Book-Entry Note representing
such Note and then advise the Trustee
by electronic transmission of the
above settlement information received
from the Presenting Agent, such CUSIP
number and the name of the Agent.
C. The Trustee will communicate to DTC
and the Agent through DTC's
Participant Terminal System, a pending
deposit message specifying the
following settlement information:
1. The information set forth in
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained
by DTC on behalf of the Paying
Agent and the Agent.
3. Identification as a Fixed Rate
Book-Entry Note or Floating Rate
Book-Entry Note.
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4. 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).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes
issued or to be issued in
book-entry form.
D. The Company will complete and deliver
to the Trustee a Book-Entry Note
representing such Note in a form that
has been approved by the Company, the
Agents and the Paying Agent.
E. The Trustee will authenticate the
Book-Entry Note representing such Note
and will register such Book-Entry
Note in the name of Cede & Co. as
nominee of DTC. The Trustee will take
delivery thereof as agent for DTC.
F. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
G. 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
Presenting Agent maintained by DTC and
(ii) to debit the settlement account
of the Presenting Agent and credit the
settlement account of the Trustee
maintained by DTC in an amount equal
to the price
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of such Note less such Agent's
commission. Any entry of such a
deliver order shall be deemed to
constitute a representation and
warranty by the Trustee to DTC that
(i) the Book-Entry Note representing
such Note has been issued and
authenticated and (ii) the Trustee is
holding such Book-Entry Note pursuant
to the terms of any Medium-Term Note
Certificate Agreement outstanding
between the Trustee and DTC.
H. The Presenting Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such Note
to the Presenting 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 Presenting
Agent maintained by DTC, in an amount
equal to the initial public offering
price of such Note.
I. Transfers of funds in accordance with
SDFS deliver orders described in
settlement Procedures G and H will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
J. The Trustee will credit to an account
of the Company maintained at the
Trustee funds available for immediate
use in the amount transferred to the
Trustee in accordance with Settlement
Procedure G.
K. Promptly after authentication of a
Note, the Trustee will send to the
Company a copy of the face of such
Note, together with a statement
setting forth the principal amount of
Notes issued and outstanding as of the
related Settlement Date.
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L. The Agent will confirm the purchase of
such Note to the 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
purchaser.
Settlement
Procedures
Timetable: For orders of Notes accepted by the Company,
Settlement Procedures "A" through "L" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
---------- ----
[S] [C]
A-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business Day before
Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on Settlement
Date
I 4:45 p.m. on Settlement Date
X-X 5:00 p.m. on Settlement Date
If a sale is to be settled more than one Business Day
after the trade date, Settlement Procedures A, B, and
C may, if necessary, be completed at any time prior
to the specified times on the first Business Day
after such sale date. In connection with a sale
which is to be settled more than one Business Day
after the trade date, Settlement Procedures B and C
shall be completed as soon as such rates have been
determined, but no later than 11:00 a.m. and 2:00
p.m., New York City time, respectively, on the second
Business Day before the Settlement Date. Settlement
Procedure I 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.
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Upon receipt of information that settlement of a Note
issued in book-entry form has been rescheduled or
canceled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancelation
message to such effect by no later than 3:00 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 Book-Entry Note issued in
book-entry form pursuant to Settlement Procedure G,
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 Book-Entry 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 Book-Entry Note, the Trustee will mark such
Book-Entry Note "canceled", make appropriate entries
in its records and send such canceled Book-Entry Note
to the Company. The CUSIP number assigned to such
Book-Entry 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 the Notes
represented by a Book-Entry Note, the Trustee will
exchange such Book-Entry Note for two Book-Entry
Notes, one of which shall represent the 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 Book-Entry Note and
shall bear the CUSIP number of the surrendered
Book-Entry Note.
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If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the related Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant
to Settlement Procedures G and H, 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 Agent to perform its obligations hereunder
or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for its
loss of the use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to a Note that was
to have been represented by a Book-Entry Note also
representing other Notes, the Trustee will provide,
in accordance with Settlement Procedures D and E, for
the authentication and issuance of a Book-Entry Note
representing such remaining Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR NOTES ISSUED IN
CERTIFICATED FORM
Denominations: The Notes will be issued in denominations of U.S.
$1,000 and any integral multiple thereof.
Interest: Each Note will bear interest in accordance with its
terms. Interest will begin to accrue on the Original
Issue Date of a Note
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for the first interest period and on the most
recent Interest Payment Date to which interest has
been paid for all subsequent interest periods. Each
payment of interest shall include interest accrued
to, but excluding, the date of such payment.
Interest payments in respect of Fixed Rate Notes will
be made semiannually on April 15 and October 15 of
each year and at maturity. However, the first
payment of interest on any Note issued between a
Regular Record Date and an Interest Payment Date will
be made on the Interest Payment Date following the
next succeeding Regular Record Date. The Regular
Record Date for any payment of interest shall be the
March 31 or September 30 prior to the applicable
Interest Payment Date. Interest at maturity will be
payable to the person to whom the principal is
payable.
Payments of
Principal
and Interest: Upon presentment and delivery of the Note, the Paying
Agent will pay the principal amount of each Note at
maturity and the final installment of interest in
immediately available funds. All interest payments
on a Note, other than interest due at maturity, will
be made by check drawn on the Paying Agent and mailed
by the Paying Agent to the person entitled thereto as
provided in the Note. However, holders of ten
million
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dollars or more in aggregate principal amount of
Notes (whether having identical or different terms
and provisions) shall be entitled to receive payments
of interest, other than at maturity, by wire transfer
of immediately available funds if appropriate wire
transfer instructions have been received in writing
by the Paying Agent not less than 16 days prior to
the applicable Interest Payment Date. Any payment of
principal or interest required to be made on an
Interest Payment Date or at maturity of a Note which
is not a Business Day (as defined below) 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 the Interest Payment Date or at
maturity, as the case may be, and no interest shall
accrue for the period from and after such Interest
Payment Date or maturity.
The Paying Agent will provide monthly to the Company
a list of the principal and interest, to the extent
ascertainable, in each currency to be paid on Notes
maturing in the next succeeding month. The Paying
Agent will be responsible for withholding taxes on
interest paid as required by applicable law, but
shall be relieved from any such responsibility if it
acts in good faith and in reliance upon an opinion of
counsel.
Notes presented to the Paying Agent at maturity for
payment will be delivered to the Trustee for
cancelation. All canceled 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 Note
purchased through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the
Company by telephone of the following
settlement information with regard to
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each Note confirmed promptly thereafter by
facsimile:
1. Exact name in which the Note is to be
registered (the "Registered Owner").
2. Exact address or addresses of
the Registered Owner for
delivery, notices and payments
of principal and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) interest rate;
(b) sinking fund or redemption
date, if any; and
(c) sinking fund or redemption
prices, if any.
Floating Rate Notes:
(a) interest rate basis;
(b) initial interest rate;
(c) spread or spread
multiplier, if any;
(d) interest rate reset dates;
(e) interest rate reset
period;
(f) interest payment dates;
(g) interest payment period;
(h) index maturity;
(i) calculation agent;
(j) maximum interest rate,
if any;
(k) minimum interest rate,
if any;
(l) calculation date;
(m) interest determination
dates;
(n) sinking fund or redemption
date, if any; and
(o) sinking fund or redemption
prices, if any.
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7. Price to public of the Note.
8. Settlement Date (Original Issue
Date).
9. Maturity Date.
10. Net proceeds to the Company.
11. Agent's Commission.
B. The Company shall provide promptly, to
the Trustee, if requested, the above
Settlement information received from the
Agent and shall cause the Trustee, from the
Agent and shall cause the Trustee to issue,
authenticate and deliver Notes. The Company
also shall provide to the Trustee and/or Agent
a copy of the applicable Pricing
Supplement, if requested.
C. The Trustee will complete the
preprinted 4-ply Note packet
containing the following documents in
forms approved by the Company, the
Presenting Agent and the Trustee:
1. Note with Agent's customer
confirmation.
2. Stub 1--for the Trustee.
3. Stub 2--for Agent.
4. Stub 3--for the Company.
D. With respect to each trade, the
Trustee will deliver the Notes and
Stub 2 thereof to the Presenting Agent
at the following applicable address:
with respect to Xxxxxx Xxxxxxx & Co.
Incorporated, to Bank of New York,
Dealer Clearance, Xxx Xxxx Xxxxxx (0xx
Xxxxx), Xxx Xxxx, XX 10005, attention
of Xxx Xxx; X.X. Xxxxxx Securities
Inc., 00 Xxxxx Xxxxxx (00xx Xxxxx),
Xxx Xxxx, XX 00000, attention of Xxx
Xxxxxxx; and with respect to Salomon
Brothers Inc, to Bank of New York,
Dealer Clearance, One Wall Street (4th
Floor), New York, NY 10005; attention
of Xxxxxx Xxxxx. The
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Paying Agent will keep Stub 1. The
Presenting Agent will acknowledge
receipt of the Note through a broker's
receipt and will keep Stub 2. Delivery
of the Note will be made only against
such acknowledgment of receipt. Upon
determination that the Note has been
authorized, delivered and completed as
aforementioned, the Presenting Agent
will wire the net proceeds of the Note
after deduction of its applicable
commission to the Company pursuant to
standard wire instructions given by
the Company.
E. The Presenting Agent will deliver the
Note (with confirmations), as well as
a copy of the Prospectus and any
applicable Prospectus Supplement or
Supplements received from the Company
to the purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers accepted by the Company, Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times set forth
below:
Settlement
Procedure Time
--------- ----
[S] [C]
A-B 3:00 p.m. on Business Day
prior to Settlement Date
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the event that a purchaser of a Note from the
Company shall either fail to accept delivery of or
make payment for a Note on the date fixed for
settlement, the Presenting Agent will forthwith
notify the Trustee and
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the Company by telephone, confirmed in writing, and
return the Note to the Trustee.
The Trustee, upon receipt of the Note from the Agent,
will immediately advise the Company and the Company
will promptly arrange to credit the account of the
Presenting Agent in an amount of immediately
available funds equal to the amount previously paid
by such Agent in settlement for the 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 Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such Agent on
an equitable basis for its loss of the use of funds
during the period when the funds were credited to the
account of the Company. Immediately upon receipt of
the Note in respect of which the failure occurred,
the Trustee will cancel and destroy the Note, make
appropriate entries in its records to reflect the
fact that the Note was never issued, and accordingly
notify in writing the Company.
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