Exhibit 1(a)
[Form of Distribution Agreement]*
TEXTRON INC.
Medium-Term Notes
Due Nine Months or More
From Date of Issue
Distribution Agreement
____________, ____
New York, New York
[Name and Address of Agents]
Ladies and Gentlemen:
Textron Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you, together with any
Additional Agents (as defined in Section 10 herein) who
become a party to this Agreement (individually an "Agent"
and collectively the "Agents"), with respect to the issue
and sale by the Company of its Medium-Term Notes Due Nine
Months or More from date of issue limited in aggregate
principal amount to ________ (or the equivalent thereof in
other currencies, including composite currencies such as the
European Currency Unit) less the aggregate principal amount
or initial public offering price, as appropriate, of all
other securities of the Company registered pursuant to the
Registration Statement (as defined below) issued and sold
after the date hereof (as so limited, the "Notes").
Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to
sell Notes directly to investors on its own behalf at any
time or to sell Notes through one or more Additional Agents,
the Company hereby appoints each of you as the agent of the
Company for the purpose of soliciting offers to purchase the
Notes from the Company by others. This Agreement shall only
apply to sales of the Notes and not to sales of any other
securities or evidences of indebtedness.
______________
* The provisions of this Form will be completed or
modified as appropriate in the event the Notes are to
be issued in bearer form.
The Notes will be issued under an indenture, dated as
of April 15, 1987 as supplemented by the First Supplemental
Indenture dated as of March 15, 1988 and the Second
Supplemental Senior Indenture dated as of February 6, 1996
(the "Indenture") between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank, successor
by merger to Manufacturers Hanover Trust Company), as
trustee (the "Trustee"). Except as specified for Notes
denominated in a Specified Currency and except as otherwise
permitted by the Indenture, the Notes will be issued in
minimum denominations of $_____ and in denominations
exceeding such amount by integral multiples of $______, will
be issued only in fully registered form and will have the
maturities, annual interest rate, redemption provisions and
other terms set forth in a supplement to the Prospectus
referred to below. The Notes will be issued, and the terms
thereof established, in accordance with the Indenture and
the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures"). The Procedures may
only be amended by written agreement of the Company and the
Agents after notice to, and with the approval of, the
Trustee. Each Agent, severally and not jointly, and the
Company agree to perform the respective duties and
obligations specifically provided to be performed by them in
the Procedures.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Agent
that:
(a) The Company meets the requirements for use of
Form S-3 ("Form S-3") under the Securities Act of 1933
(the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 33-________), which has
become effective, for the registration under the Act of
$_____________ of securities of the Company or certain
of its subsidiaries, including the Notes. Such
registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all other
material respects with said Rule and the Act. In
connection with the sale of Notes, the Company proposes
to file with the Commission pursuant to Rule 424 under
the Act a supplement to the form of prospectus included
in such registration statement relating to the Notes
and the plan of distribution thereof and has previously
advised each Agent of all further information
(financial and other) with respect to the Company to be
set forth therein. Such registration statement,
including the exhibits thereto, as amended to the date
of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus, as
supplemented pursuant to the previous sentence, is
hereinafter called the "Prospectus". Any reference
herein to the Registration Statement 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 Securities
Exchange Act of 1934 (the "Exchange Act") on or before
the date of this Agreement or the date of the
Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange
Act after the date of this
Agreement or the date of the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when any amendment to
the Registration Statement becomes effective (including
the filing of any document incorporated by reference in
the Registration Statement), when any supplement to the
Prospectus is filed with the Commission 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 Exchange Act and the respective rules thereunder
and (ii) neither the Registration Statement, as amended
as of any such time, nor the Prospectus as supplemented
as of any such time, will 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; provided
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 Prospectus
in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of
such Agent specifically for use in connection with the
preparation of the Registration Statement and the
Prospectus.
(c) There has not been any material adverse change
in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in
the Prospectus.
(d) The execution and delivery of, and the
performance by the Company of its obligations under,
this Agreement have been duly authorized by the
Company, and this Agreement has been duly executed and
delivered by the Company.
(e) The Indenture has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of
creditors' rights generally and by general principles
of equity.
(f) The Notes have been duly authorized and, when
executed by the Company, authenticated by the Trustee
and issued in accordance with the Indenture and
delivered pursuant to the provisions of this Agreement
against payment therefor as described in the
Registration Statement and the Prospectus, will
constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with
their terms, except as enforceability thereof may be
limited by bankruptcy,
insolvency or other similar laws
affecting the enforcement of creditors' rights
generally and by general principles of equity and
except as rights of acceleration and the availability
of equitable remedies may be limited by equitable
principles of general applicability and except further
as enforceability thereof may be limited by (i)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments outside the
United States; and the Notes and the Indenture will
conform in all material respects to the descriptions
thereof in the Registration Statement and the
Prospectus.
(g) The Company is a corporation duly organized
and validly existing in good standing under the laws of
the State of Delaware with full corporate power and
authority to own, lease and operate its properties and
to conduct its business as described in the
Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its
business requires such registration or qualification,
except where the failure so to register or qualify does
not have a material adverse effect on the condition
(financial or other), business, properties, net worth
or results of operations of the Company and its
subsidiaries taken as a whole.
(h) Each of Bell Helicopter Textron Inc., Textron
Financial Corporation, Avco Financial Services Inc.,
The Cessna Aircraft Company and Cessna Finance
Corporation (collectively, the "Significant
Subsidiaries") is a corporation duly organized, validly
existing and in good standing in the jurisdiction of
its incorporation, with full corporate power and
authority to own, lease and operate its properties and
to conduct its business as described in the
Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its
business requires such registration or qualification,
except where the failure so to register or qualify does
not have a material adverse effect on the condition
(financial or other), business, properties, net worth
or results of operations of the Company and its
subsidiaries taken as a whole. Except as disclosed in
the Registration Statement and the Prospectus, the
Company owns of record, directly or indirectly, all of
the outstanding shares of capital stock of each of the
Significant Subsidiaries free and clear of any lien,
adverse claim, security interest, equity or other
encumbrance.
(i) The execution and delivery of this Agreement
and the Indenture by the Company and the consummation
of the transactions contemplated herein and therein
will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the
Company or any other agreement or instrument binding
upon the Company or any of the Company's Significant
Subsidiaries or any judgment, order or decree of any
governmental body, agency or court having
jurisdiction over the Company or such Significant Subsidiaries,
except such contraventions as would not, individually
or in the aggregate, have a material adverse effect on
the condition (financial or other), business,
properties, net worth or results of operations of the
Company and its subsidiaries taken as a whole and no
consent, approval or authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its
obligations under this Agreement or the Indenture, and
the consummation of the transactions contemplated
hereby, except such as are required pursuant to state
securities or Blue Sky Laws.
(j) The statements under the captions
"Description of Debt Securities", "Description of
Notes" and Plan of Distribution" in the Prospectus
insofar as they constitute a summary of this Agreement,
the Indenture and the Notes, fairly present fairly the
information called for by Form S-3 with respect to such
documents.
(k) The statements included under the caption
"Legal Proceedings" in the Company's Annual Report on
Form 10-K insofar as they describe statements of law or
legal conclusions are accurate and fairly present the
information required to be shown.
2. Appointment of Agents; Solicitations by the Agents
of Offers to Purchase; Sales of Notes to a Purchaser. (a)
Subject to the terms and conditions set forth herein, the
Company hereby authorizes each Agent 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
Agent agrees, severally and not jointly, 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 herein and in the Prospectus as
amended or supplemented.
The Company reserves the right, in its sole discretion,
to instruct any of 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 affected Agent or Agents will
forthwith suspend solicitation of offers to purchase Notes
from the Company until such time as the Company has advised
the affected Agent or Agents that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, at
the time of settlement of 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 Schedule I
hereto of the aggregate issue price of the Notes sold by the
Company.
Subject to the provisions of this Section, offers for
the purchase of Notes may be solicited by each 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 the Agents.
(b) Subject to the terms and conditions stated herein,
the Company agrees that, whenever the Company determines to
sell Notes directly to any of you as principal for resale to
others, it will enter into a Terms Agreement relating to
such sale in accordance with the provisions of this Section
2(b). For the purposes of this Agreement, the terms "Agent"
and "Agents" shall refer to you acting solely in the
capacity as agent for the Company hereunder and not as
principal, the term "Purchaser" shall refer to you acting
solely as principal hereunder and not as agent, and the term
"you" shall refer to each of you acting in both such
capacities or in either such capacity; provided, however,
that no Additional Agent may act as principal hereunder.
Each sale of Notes to a Purchaser shall be made in
accordance with the terms of this Agreement and a
supplemental agreement which will provide for the sale of
such Notes to, and the purchase and reoffering thereof by, a
Purchaser. Each such supplemental agreement (which may be an
oral or written agreement) is herein referred to as a "Terms
Agreement". Each Terms Agreement will take the form of
either (i) a written agreement between a Purchaser and the
Company, which may be substantially in the form of Exhibit B
hereto or (ii) an oral agreement between a Purchaser and the
Company confirmed in writing by the Purchaser to the
Company. A 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 date and time
of delivery of payment for such Notes (the "Purchase Date"),
the place of delivery of the Notes and payment therefor, the
method of payment and any modification of the requirements
for the delivery of the opinions of counsel, the
certificates from the Company or its officers, and the
letter from Xxxxx & Xxxxx, pursuant to Section 6(b). Such
Terms Agreement shall also specify the period of time
referred to in Section 4(l).
Delivery of the certificates for Notes sold to a
Purchaser pursuant to any Terms Agreement shall be made as
agreed to between the Company and the Purchaser as set forth
in the respective Terms Agreement, not later than the
Purchase 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 respective Terms Agreement. In connection with
any resale of Notes purchased, a Purchaser may use a selling
or dealer group and may reallow any portion of the discount
or commission payable pursuant hereto to dealers or
purchasers.
3. Offering Procedure. Each Agent shall communicate
to the Company, orally or in writing, each offer to purchase
Notes on terms previously communicated by the Company to
such Agent, and the Company shall have the sole right to
accept such offers to purchase Notes and may refuse any
proposed purchase of Notes in whole or in part for
any reason. Each Agent shall have the right to reject any
proposed purchase of Notes, as a whole or in part, and any
such rejection shall not be deemed a breach of its agreement
contained herein.
4. Agreements. The Company agrees with each Agent
that:
(a) Prior to the termination of the offering of
the Notes, the Company will not file any amendment to
the Registration Statement or supplement to the
Prospectus (except for a supplement relating to an
offering of securities other than the Notes and except
for any document incorporated by reference therein
pursuant to Item 12 of Form S-3 which was filed under
the Exchange Act) unless the Company has furnished each
Agent a copy for its review prior to filing and will
not file any such proposed amendment or supplement to
which any Agent reasonably objects. Subject to the
foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed (or mailed for
filing) with the Commission as required pursuant to
Rule 424. The Company will promptly advise each Agent
(i) when each supplement to the Prospectus shall have
been filed (or mailed for filing) with the Commission
pursuant to Rule 424, (ii) when any amendment of the
Registration Statement shall have become effective,
(iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional
information, (iv) 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 (v)
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. If
the Prospectus is supplemented as a result of the
filing under the Exchange Act of any document
incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3, the Company will provide each
Agent with a copy of such document promptly after the
filing thereof and any such Agent shall not be
obligated to solicit offers for the purchase of Notes
so long as such Agent is not reasonably satisfied with
such document.
(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 Registration
Statement, as then amended, or 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 will promptly
(i) notify each Agent to suspend solicitation of offers
to purchase Notes (and, if so notified by the Company,
such Agent shall forthwith suspend such solicitation
and cease using the Prospectus as then amended or
supplemented). If
the Company desires the Agents to
resume solicitation of offers to purchase Notes, the
Company shall (i) prepare and file with the Commission,
subject to paragraph (a) of this Section 4, any
amendment or supplement which is necessary to correct
such statement or omission or to effect such compliance
and (iii) supply any such amended or supplemented
Prospectus to each Agent in such quantities as such
Agent may reasonably request. If such amendment or
supplement, and any documents, certificates and
opinions furnished to each Agent pursuant to paragraph
(f) of this Section 4 in connection with the
preparation or filing of such amendment or supplement
are satisfactory in all respects to the Agent receiving
such amendment, supplement, documents, certificates and
opinions, such Agent 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 its
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
Agent 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 and, not later than 45 days after the end
of the 12-month period beginning at the end of each
fiscal quarter of the Company (other than the last
fiscal quarter of any fiscal year) during which the
effective date of any post-effective amendment to the
Registration Statement occurs, not later than 90 days
after the end of the fiscal year beginning at the end
of each last fiscal quarter of any fiscal year of the
Company during which the effective date of any
post-effective amendment to the Registration Statement
occurs, and not later than 90 days after the end of
each fiscal year of the Company during which any Notes
were issued, the Company will make generally available
to its security holders and to each Agent an earnings
statement or statements covering such 12-month period
or such fiscal year, as the case may be, that will
satisfy the provisions of such Section 11(a) and Rule
158.
(d) The Company will furnish to each Agent and
counsel for the Agents, without charge, copies of the
Registration Statement (including exhibits thereto) and
each amendment thereto and, so long as delivery of a
prospectus may be required by the Act, as many copies
of any preliminary prospectus and the Prospectus and
any amendments thereof and supplements thereto as each
Agent may reasonably request.
(e) The Company will arrange for the
qualification of the Notes for sale under the laws of
such jurisdictions as the Agents may 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 will furnish to each Agent such
documents, certificates of officers of the Company and
opinions of counsel for the Company
relating to the business, operations and affairs of the
Company, the Registration Statement, any preliminary prospectus,
the Prospectus, and any amendments or supplements thereto,
the Indenture, the Notes, this Agreement, the
Procedures and the performance by the Company and such
Agent of their respective obligations hereunder and
thereunder as such Agent may from time to time and at
any time prior to the termination of this Agreement
reasonably request.
(g) The Company will, whether or not any sale of
the Notes is consummated, (i) pay all expenses incident
to the performance of its obligations under this
Agreement, including the fees and disbursements of its
accountants and counsel, the cost of printing and
delivery of the Registration Statement, any preliminary
prospectus, the Prospectus, all amendments thereof and
supplements thereto, the Indenture, this Agreement and
all other documents relating to the offering, the cost
of preparing, printing, packaging and delivering the
Notes, the fees and disbursements, including fees of
counsel, incurred in connection with the qualification
of the Notes for sale and determination of eligibility
for investment of the Notes under the securities or
Blue Sky laws of each such jurisdiction as the Agents
may reasonably designate, the fees and disbursements of
the Trustee and the fees of any agency that rates the
Notes, the cost of providing any CUSIP or other
identification for the notes, the fees and expenses of
any depository for the Notes, and (ii) reimburse each
Agent on a monthly basis for all out-of-pocket expenses
(including without limitation advertising expenses)
incurred by such Agent and approved by the Company in
advance, in connection with the offering and the sale
of the Notes, and (iii) be responsible for the
reasonable fees of counsel for the Agents incurred in
connection with the offering and sale of the Notes,
provided that the Company shall not be responsible for
the fees of counsel for a Purchaser incurred in
connection with the offering and sale of the Notes
pursuant to a Terms Agreement unless specified in such
Terms Agreement.
(h) Each acceptance by the Company of an offer
for the purchase of Notes (whether to a Purchaser or an
Agent), and each delivery of Notes to an Agent or a
Purchaser, shall be deemed to be (i) an affirmation
that the representations and warranties of the Company
contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true
and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such
representations and warranties will be true and correct
at the time of delivery to a Purchaser or its agent, or
to the Agent, of the Note or Notes relating to such
acceptance or sale, as the case may be, as though made
at and as of each such time and (ii) a representation
and warranty to the Agent arranging such sale that
neither the Registration Statement nor the Prospectus,
as then amended or supplemented, fails to reflect any
facts or events which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement or
the Prospectus, as then amended or supplemented, and/or
includes any untrue statement of a material fact, or
omits to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, except that
the foregoing does not apply to (x) 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 (y) the
information contained in or omitted from the
Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in
writing to the Company by or on behalf of such Agent
specifically for use in connection with the preparation
of the Registration Statement and the Prospectus or any
amendments thereof or supplements thereto.
(i) Each time that the Registration Statement or
the Prospectus is amended or supplemented (other than
by an amendment or supplement 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 thereto), the Company
will deliver or cause to be delivered forthwith to each
Agent a certificate of the Company signed by the
Chairman, the President or any Vice President and the
principal financial or accounting officer of the
Company, dated the date of the effectiveness of such
amendment or the date of filing of such supplement, in
form reasonably satisfactory to such Agent, to the
effect that the statements contained in the certificate
that was last furnished to such Agent pursuant to
either Section 5(d) or this Section 4(i) are true and
correct at the time of the effectiveness of such
amendment or the filing of such supplement as though
made at and as of such time (except that (i) the last
day of the fiscal quarter for which financial
statements of the Company were last filed with the
Commission shall be substituted for the corresponding
date in such certificate and (ii) such statements shall
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 (other than
by an amendment or supplement (i) 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 thereto or
(ii) setting forth or incorporating by reference
financial statements or other information as of and for
a fiscal quarter, unless, in the case of clause (ii)
above, in the reasonable judgment of any Agent, 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
forthwith to each Agent a written opinion of the
Executive Vice President and General Counsel or the
Group General Counsel - Financial Services of the
Company or such other counsel as the Agents deem
satisfactory, dated the date of the effectiveness of
such amendment or the date of filing of such
supplement, in form satisfactory to the Agents, 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 such Agent
may furnish such Agent with a letter to the effect that
such Agent 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).
(k) Each time that the Registration Statement or
the Prospectus is amended or supplemented to set forth
amended or supplemental financial information or such
amended or supplemental information is incorporated by
reference in the Registration Statement or the
Prospectus, the Company shall cause its independent
public accountants, forthwith to furnish each Agent a
letter, dated the date of the effectiveness of such
amendment or the date of filing of such supplement, in
form satisfactory to such Agent, of the same tenor as
the letter referred to in Section 5(e) with such
changes as may be 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 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, such
independent public accountants may limit the scope of
such letter, which shall be satisfactory in form to
each Agent, to the unaudited financial statements and
the related "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included
in such amendment or supplement, unless any other
information included or incorporated by reference
therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable
judgment of any Agent, such letter should cover such
other information.
(l) During the period, if any, specified in any
Terms Agreement, the Company shall not, without the
prior consent of the Purchaser, 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 the Terms
Agreement.
5. Conditions to the Obligations of Each Agent. The
obligations of each Agent to solicit offers to purchase the
Notes and of any purchaser to purchase Notes shall be
subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of
the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement, as of the date 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:
(a) Prior to such solicitation or purchase, as
the case may be:
(i) no stop order suspending the
effectiveness of the Registration Statement, as
amended from time to time, shall have been issued
and no proceedings for that purpose shall have
been instituted or threatened;
(ii) there shall not have occurred any change
in the condition, financial or otherwise, or in
the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus, as amended
or supplemented at the time of such solicitation
or at the time such offer to purchase was made,
that, in such Agent's judgement, is material and
adverse and that makes it, in such Agent's
judgement, impracticable to market the Notes on
the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(iii) there shall not have occurred any (A)
suspension or material limitation of trading
generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board
of Trade, (B) suspension of trading of any
securities of the Company on any exchange or in
any over-the-counter market, (C) declaration of a
general moratorium on commercial banking
activities in New York by either Federal or New
York State authorities or (D) any outbreak or
escalation of hostilities or any change in
financial markets or any calamity or crisis that,
in such Agent's judgment, is material and adverse
and, in the case of any of the events described in
clauses (iii)(A) through (D), such event, singly
or together with any other such event, makes it,
in such Agent's judgement, impracticable to market
the Notes on the terms and in the manner
contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or
at the time such offer to purchase was made; and
(iv) there shall not have occurred any
downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any
review for a possible change that does not
indicate the direction of the 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
Securities Act;
(b) The Company shall have furnished to such
Agent the opinion of the Executive Vice President and
General Counsel or the Group General Counsel -
Financial Services of the Company or such other counsel
as the Agents deem satisfactory, dated the date hereof,
to the effect that:
(i) the Company is a corporation duly
organized and validly existing as a corporation in
good standing under the laws of the State of
Delaware with full corporate power and authority
to own, lease and operate its
properties and to conduct its business as described
in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its
business and is in good standing in each
jurisdiction or place where the nature of its
properties or the conduct of its business requires
such registration or qualification, except where
the failure so to register or qualify does not
have a material adverse effect on the condition
(financial or other), business, properties, net
worth or results of operations of the Company and
its subsidiaries taken as a whole,
(ii) each of the Significant Subsidiaries is
a corporation duly organized, validly existing and
in good standing in the jurisdiction of its
incorporation, with full corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its
business and is in good standing in each
jurisdiction or place where the nature of its
properties or the conduct of its business requires
such registration or qualification, except where
the failure so to register or qualify does not
have a material adverse effect on the condition
(financial or other), business, properties, net
worth or results of operations of the Company and
its subsidiaries taken as a whole.
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and is a
valid and binding agreement of the Company
enforceable in accordance with its terms, except
as (1) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights
generally and (2) rights of acceleration and the
availability of equitable remedies may be limited
by equitable principles of general applicability,
and has been duly qualified under the Trust
Indenture Act,
(iv) the Notes have been duly authorized by the
Company and, when the terms of the Notes have been
established in accordance with procedures set
forth in the resolutions of the Company's Board of
Directors and Finance Committee relating to the
Notes and when executed by the Company and
authenticated by the Trustee and issued in
accordance with the Indenture and delivered
pursuant to the provisions of this Agreement
against payment therefor, as described in the
Registration Statement and the Prospectus thereof,
will be valid and binding obligations of the
Company enforceable in accordance with their terms
and will be entitled to the benefits of the
Indenture, except as enforceability thereof may
be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors'
rights generally and by general principles of
equity and except as rights of acceleration and
the availability of equitable remedies may be
limited by equitable principles of general
applicability and except further as enforceability
thereof may be limited by (i) requirements that a
claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of
such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant
to applicable law or (ii) governmental authority
to limit, delay or prohibit the making of payments
outside the United States; and the Notes and the
Indenture will conform in all material respects to
the descriptions thereof in the Registration
Statement and the Prospectus,
(v) the execution and delivery of, and the
performance by the Company of its obligations
under this Agreement have been duly authorized by
the Company, and this Agreement has been duly
executed and delivered by the Company,
(vi) the execution and delivery of this
Agreement and the Indenture by the Company and the
consummation of the transactions contemplated
herein and therein will not contravene any
provision of applicable law (except as rights to
indemnity and contribution under this Agreement
may be limited by applicable law) or the
certificate of incorporation or by-laws of the
Company or, to the knowledge of such counsel after
due inquiry, any other agreement or instrument
binding upon the Company or any of the Company's
Significant Subsidiaries or any judgment, order or
decree of any governmental body, agency or court
having jurisdiction over the Company or such
Significant Subsidiaries, except such
contraventions as would not, individually or in
the aggregate, have a material adverse effect on
the condition (financial or other), business,
properties, net worth or results of operations of
the Company and its subsidiaries taken as a whole
and no consent, approval or authorization or order
of, or qualification with, any governmental body
or agency is required for the performance by the
Company of its obligations under this Agreement or
the Indenture, and the consummation of the
transactions contemplated hereby, except such as
are required pursuant to state securities or Blue
Sky Laws,
(vii) the statements in the Prospectus
under "Description of Debt Securities",
"Description of Notes" and "Plan of Distribution",
insofar as such statements constitute a summary of
this Agreement, the Indenture and the Notes,
fairly present the information called for by Form
S-3 with respect to such documents,
(viii) the statements included under the
caption "Legal Proceedings" in the Company's
Annual Report on Form 10-K insofar as they
describe statements of law or legal conclusions
are accurate and fairly present the information
required to be shown,
(ix) the Registration Statement and any
amendments thereto have become effective under the
Act and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of the
Registration
Statement has been issued and no
proceedings for that purpose have been instituted
or threatened, and
(x) such counsel (1) is of the opinion that
each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus
(except as to financial statements contained
therein and the notes thereto and the schedules
and other financial and statistical data included
therein, as to which such counsel need not express
any opinion) complied when so filed as to form in
all material respects with such Act and the rules
and regulations thereunder, (2) has no reason to
believe that (except for (x) the financial
statements contained therein and the notes thereto
and the schedules and other financial and
statistical data included therein, as to which
such counsel need not express any belief ) any
part of the Registration Statement (including the
documents incorporated by reference therein),
filed with the Commission pursuant to the Act
relating to the Notes, when such part became
effective, contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, (3) is of
the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if
applicable, (except as to (x) financial statements
contained therein and the notes thereto and the
schedules and other financial and statistical data
included therein, as to which such counsel need
not express any opinion and (y) the information
set forth in the Prospectus under the caption
"United States Tax Consideration" as to which such
counsel need not express any opinion) comply as to
form in all material respects with the Act and the
rules and regulations thereunder and (4) has no
reason to believe that (except for (x) the
financial statements contained therein and the
notes thereto and the schedules and other
financial and statistical data included therein,
as to which counsel need not express any belief
and (y) the information set forth in the
Prospectus under the caption "United States Tax
Consideration" as to which such counsel need not
express any belief) the Registration Statement and
the Prospectus on the date hereof 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.
In rendering such opinion, such counsel may rely as to
matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
public officials.
With respect to subparagraph (x) of paragraph (b)
above, such counsel may state that their opinion and belief
are based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments
or supplements thereto and review and discussion of the
contents thereof, but are without independent check or
verification, except as otherwise indicated.
(c) Each Agent shall have received from Xxxxx
Xxxx & Xxxxxxxx, 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 and other
related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel
such documents as they 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 the
Chairman, the President or any Vice President and the
principal financial or accounting officer of the
Company, dated the date hereof, to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this
Agreement and that:
(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
hereof with the same effect as if made on the date
hereof 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 each Agent 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
condition financial or otherwise, or in the
earnings, business or operations of the Company
and its subsidiaries taken as a whole except as
set forth in or contemplated in the Prospectus.
(e) At the date hereof, Xxxxx & Xxxxx shall have
furnished each Agent a letter or letters (which may
refer to letters previously delivered to such Agent),
dated as of the date hereof, in form and substance
satisfactory to such Agent, 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 and financial statement schedules
included or incorporated in the Registration
Statement and the Prospectus and reported on by
them comply as to form in all material respects
with the applicable accounting requirements of the
Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements of the Company and
its subsidiaries furnished to them by the Company;
carrying out procedures specified by the American
Institute of Certified Public Accountants for a
review of interim financial information as
described in SAS, No. 71, Interim Financial
Information (but not an audit conducted in
accordance with generally accepted auditing
standards) which would not necessarily reveal
matters of significance with respect to the
comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders
and directors and executive and audit committees
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 of the Company and its
consolidated subsidiaries included or incorporated
in the Prospectus, nothing came to their attention
which caused them to believe that:
(1) any material modifications should
be made to the unaudited condensed
consolidated financial statements included or
incorporated in the Registration Statement
for them to be in conformity with generally
accepted accounting principles;
(2) the unaudited condensed
consolidated financial statements included or
incorporated in the Registration Statement do
not comply as to form in all material
respects with the applicable accounting
requirements of the Act and the related
published rules and regulations; or
(3) with respect to the period
subsequent to the date of the most recent
financial statements of the Company and its
consolidated subsidiaries (other than any
capsule information), audited or unaudited,
included or incorporated by reference 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 total indebtedness
of the Company and its consolidated
subsidiaries, Textron Financial Corporation
("TFC") and Avco Financial Services, Inc.
("AFS") or decreases in total shareholders'
equity of the Company as compared with the
amounts shown on the most recent consolidated
balance sheet of the Company and its
consolidated subsidiaries included or
incorporated in the Registration Statement
and the Prospectus, or for the period from
the date of the most recent financial
statements of the Company and its
consolidated subsidiaries included or
incorporated in the Registration Statement
and the Prospectus to the last day of the
period to which the latest unaudited income
statements made available by the Company
relate, there were any decreases, as
compared with the corresponding period in the
preceding year, in consolidated net sales or
in the total or per share amounts of
consolidated income from continuing
operations, income from discontinued
operations and net income, 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
such Agent;
(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 Items 1, 2, 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 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 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 Registration Statement and the
Prospectus in this paragraph (e) are to such documents
as amended and supplemented at the date of the letter.
(f) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Prospectus (as amended or
supplemented, in the case of a Terms Agreement), there
shall not have been (i) any change or decrease
specified in the letter referred to in paragraph (e) of
this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the
business or properties of the Company and its
subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of
such Agent, so material and adverse as to make it
impractical or inadvisable to proceed with the
soliciting of offers to purchase the Notes as
contemplated by the Registration Statement and the
Prospectus (or, in the case of a Terms Agreement, to
proceed with the offering or the delivery of the Notes
to be purchased as contemplated by the Terms
Agreement).
(g) Each Agent shall have received from Xxxxxxx
Xxxxxx & Xxxxx, special tax counsel to the Company, an
opinion, dated the date hereof, confirming that the
information set forth in the Prospectus under the
caption "United States Tax Considerations" is accurate
in all material respects.
(h) Prior to the date hereof, the Company shall
have furnished to each Agent such further information,
certificates and documents as such Agent 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, letters and certificates mentioned above or
elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to
any Agent and its counsel, this Agreement and all
obligations of such Agent hereunder may be canceled at any
time by such Agent. Notice of such cancellation 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 Xxxxx Xxxx &
Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, on the date hereof.
6. Conditions to the Obligations of a Purchaser.
The obligations of a Purchaser to purchase Notes pursuant to
any Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company
herein as of the date of the respective Terms Agreement and
as of the Purchase Date thereunder, as of the date of the
effectiveness of any amendment to the Registration Statement
(including the filing of any document incorporated by
reference therein), as of the date 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:
(a) Prior to such solicitation or purchase, as
the case may be:
(i) no stop order suspending the
effectiveness of the Registration Statement, as
amended from time to time, shall have been issued
and no proceedings for that purpose shall have
been instituted or threatened.
(ii) there shall not have occurred any change
in the condition, financial or otherwise, or in
the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus, as amended
or supplemented at the time of such solicitation
or at the time such offer to purchase was made,
that, in such Agent's judgement, is material and
adverse and that makes it, in such Agent's
judgement, impracticable to market the Notes on
the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(iii) there shall not have occurred any (A)
suspension or material limitation of trading
generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board
of Trade, (B) suspension of trading of any
securities of the Company on any exchange or in
any over-the-counter market, (C) declaration of a
general moratorium on commercial banking
activities in New York by either Federal or New
York State authorities or (D) any outbreak or
escalation of hostilities or any change in
financial markets or any calamity or crisis that,
in such Agent's judgment, is material and adverse
and, in the case of any of the events described in
clauses (iii)(A) through (D), such event, singly
or together with any other such event, makes it,
in such Agent's judgement, impracticable to market
the Notes on the terms and in the manner
contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or
at the time such offer to purchase was made; and
(iv) there shall not have occurred any
downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any
review for a possible change that does not
indicate the direction of the 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
Securities Act;
(b) Except to the extent modified by the
respective Terms Agreement, the Purchaser shall have
received, appropriately updated and modified, (i) a
certificate of the Company, dated as of the Purchase
Date, to the effect set forth in Section 5(d), (ii) the
opinion of the Executive Vice President and General
Counsel or Group General Counsel - Financial Services
of the Company or such other Counsel as the Purchaser
deems satisfactory, dated as of the Purchase Date, to
the effect set forth in Section 5(b), (iii) the opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel for the Purchaser,
dated as of the Purchase Date, to the effect set forth
in Section 5(c), (iv) a letter of Xxxxx & Xxxxx, dated
as of the Purchase Date, to the effect set forth in
Section 5(e) appropriately updated and modified and (v)
the opinion of Xxxxxxx Xxxxxx & Xxxxx, special tax
counsel to the Company, dated as of the Purchase Date,
to the effect set forth in Section 5(g).
(c) Prior to the Purchase 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, any of the opinions,
letters and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the
Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be canceled at,
or at any time prior to, the respective Purchase Date by the
Purchaser. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in
writing.
7. Reimbursement of the Agents' Expenses. If any
condition to the obligations of an Agent set forth in
Section 5 hereof is not satisfied, if any termination of an
Agent pursuant to Section 9 hereof shall occur or in the
case of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by such
Agent, the Company will reimburse such Agent upon demand for
all out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by
such Agent in connection with this Agreement.
8. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Agent and
each person who controls such Agent within the meaning of
either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration
of the Notes as originally filed or in any amendment
thereof, or in the Prospectus or any preliminary prospectus,
or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided that (i) the Company will not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on
behalf of such Agent specifically for use in connection with
the preparation thereof, and (ii) such indemnity with
respect to any preliminary prospectus shall not inure to the
benefit of such Agent (or any person controlling such Agent)
if the person asserting any such loss, claim, damage or
liability did not receive a copy of the Prospectus (as
amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the
sale of the Notes which are the
subject thereof to such
person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact
contained in the preliminary prospectus was corrected in the
Prospectus (as amended or supplemented). This indemnity
agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Agent agrees, severally and not jointly,
to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to
such Agent, but only with reference to written information
relating to such Agent furnished to the Company by or on
behalf of such Agent specifically for use in the preparation
of the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any
liability which such Agent may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of
the commencement thereof. In case any such action is
brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein
and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume
the defense thereof, with counsel satisfactory to such
indemnified party; provided that if the defendants in any
such action include both the indemnified party and the
indemnifying party and the indemnified party and
indemnifying party shall have reasonably concluded that
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them, the indemnified party or parties shall have
the right to select separate counsel. Upon receipt of
notice from the indemnifying party to such indemnified party
of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel),
approved by the Agents who are parties to such proceedings
in the case of paragraph (a) of this Section 8, representing
the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii). No
indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any
proceeding in respect of which any indemnified party is a
party unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matters of such proceeding.
(d) If the indemnification provided for in Section
8 (a) or (b) is unavailable to an indemnified party under or
insufficient in respect of any losses, claims, damages or
liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each
Agent on the other from the offering of such Notes or (ii)
if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Company on the one hand and each Agent on the other
in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand
and each Agent on the other in connection with the offering
of such Notes shall be deemed to be in the same respective
proportion as the total net proceeds from the offering of
such Notes (before deducting expenses) received by the
Company bear to the total discounts and commissions received
by each Agent in respect thereof. The relative fault of the
Company on the one hand and of each Agent on the other shall
be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such
Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
Each Agent's obligation to contribute pursuant to
this Section 8 shall be several (in the proportion that the
principal amount of the Notes the sale of which by or
through such Agent gave rise to such losses, claims, damages
or liabilities bears to the aggregate principal amount of
the Notes, the sale of which by or through any Agent gave
rise to such losses, claims, damages or liabilities) and not
joint.
(e) The Company and the Agents agree that it would
not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if
the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take
account of the considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Agent
shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes referred
to in paragraph (d) above that were offered and sold to the
public through such Agent exceeds the amount of any damages
which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
9. Status of Each Agent; Termination. In
soliciting offers to purchase the Notes from the Company
pursuant to this Agreement and in assuming its other
obligations hereunder, each Agent is acting individually and
not jointly and is acting solely as agent for the Company
and not as principal. Except as otherwise provided in
Section 10(c) herein, this Agreement may be terminated for
any reason at any time by the Company as to any Agent or, in
the case of an Agent, by such Agent insofar as this
Agreement relates to such Agent, upon the giving of one
day's written notice of such termination to the other
parties hereto, provided that such termination shall not
affect any Terms Agreement in effect on the date of such
termination. This Agreement will continue in effect until
terminated as provided in this Section 9. In the event of
such termination, neither the Company nor the affected Agent
shall have any liability to any other party hereto, except
as provided in the fourth paragraph of Section 2, Section
4(g), Section 7, Section 8 and Section 11. In the event the
Company shall have entered into a Terms Agreement with one
or more of you as Purchasers and this Agreement is
terminated, the provisions of Section 4(b) (other than the
last sentence thereof) will survive and the term "Agent"
therein shall be used to refer to you, if applicable, as
Purchaser.
10. Appointment of Additional Agents. (a) The
Company reserves the right to appoint additional Agents
(each an "Additional Agent" and collectively, "Additional
Agents") for the sale of one or more Notes, and to sell
Notes directly to investors, but no such appointment or sale
shall constitute the several Agents hereunder and any such
Additional Agent as co-agents or entitle any Agent to
compensation for any sale of Notes other than Notes sold as
a result of a solicitation by it. Subject to the provisions
of this Section 10, the appointment of an Additional Agent
in connection with the sale of one or more of the Notes may
be effected by the Company's addition of the name (and
address for the receipt of notices) of such Additional Agent
to the signature page of a counterpart of this Agreement, to
which shall be attached a description of the material terms
(including those that would be included in the applicable
Pricing Supplement) of the proposed sale of Notes, and the
execution of such counterpart by such Additional Agent and
the Company. Promptly upon each appointment of any
Additional Agent hereunder, the Company shall notify each
other Agent and the Trustee of such appointment and of such
material terms of the Notes to be sold pursuant thereto. The
Company will notify each Agent of the amount of Notes from
time to time remaining unsold and of such other information
as may be reasonably necessary to prevent inadvertent
solicitations for sales in excess of the amount of Notes
then remaining unsold.
(b) Notwithstanding anything to the contrary
contained in this Agreement, the Company shall be required
to furnish to any Additional Agent, upon request, only such
copies of opinions, certificates, comfort letters and other
documents as theretofore have been delivered to the other
Agents pursuant to this Agreement, and the furnishing
thereof will not constitute a reaffirmation of any such
opinions, certificates, comfort letters or, as applicable,
other documents as of any date other than the date on which
each such
document originally was rendered and such
Additional Agent acknowledges and agrees that it is not
relying upon the accuracy of any opinion, certificate,
comfort letter and, as applicable, other document as of any
date other than the date on which such document originally
was issued.
(c) As to any Additional Agent, if this Agreement
has not earlier been terminated, it shall be deemed
terminated in accordance with Section 9 herein immediately
upon consummation of the sale of Notes with respect to which
such person or entity had become an Additional Agent,
provided that such termination shall not prevent such person
or entity from becoming, or from continuing to act as, an
Additional Agent with respect to sales of other Notes in
accordance with the terms of any applicable counterpart of
this Agreement.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties,
indemnities and other statements of the Company or its
officers and of each Agent 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 such
Agent 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 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, sent by facsimile
transmission or other similar and immediate method of
delivery, or mailed by registered or certified mail (return
receipt requested), if to an Agent, at the address specified
in Schedule I hereto or, if to the Company, to it at 00
Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000,
attention of the Group General Counsel - Financial Services
(Facsimile No.: (000)000-0000) or, if to the Trustee, to it
at 000 Xxxx 00xx Xxxxxx, 00xx Floor, Corporate Trust
Department, New York, New York 10001 (Facsimile No.:
(000)000-0000) (or to such other address for an Agent or the
Company or the Trustee as shall be specified by like notice
to all Agents, the Company and the Trustee).
13. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of
New York.
15. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall constitute one
and the same instrument.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement among
the Company and the Agents.
Very truly yours,
TEXTRON INC.
By: ____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
[Name of Agents]
SCHEDULE I
Distribution Agreement
dated ________, _____
As compensation for the services of each Agent
hereunder, the Company shall pay it, on a discount basis, a
commission for the sale of each Note equal to the principal
amount of such Note multiplied by the appropriate percentage
set forth below:
MATURITY RANGES PERCENT OF
PRINCIPAL AMOUNT
Addresses for Notice to Agents:
Notices for ________ shall be directed to it at
__________________.
EXHIBIT A
TEXTRON INC.
Medium-Term Note Administrative Procedures
________, ____
Medium-Term Notes, Series __ (the "Notes")
are to be offered on a continuous basis by Textron Inc.
(the "Company"). ______________,
__________________________ and ___________________, as
agents, together with any Additional Agents (as defined
in Section 10 of the Distribution Agreement referred to
below) who become a party to the Distribution Agreement
(individually an "Agent" and collectively the
"Agents"), have agreed to solicit purchases of the
Notes. The Agents will not be obligated to purchase
Notes for their own accounts. The Notes are being sold
pursuant to a Distribution Agreement between the
Company and the Agents dated ________, ____ (the
"Distribution Agreement"). The Notes will rank equally
with all other unsecured and unsubordinated debt of the
Company and have been registered with the Securities
and Exchange Commission (the "Commission"). The Chase
Manhattan Bank (the "Trustee") is the successor trustee
under the Indenture dated as of April 15, 1987 as
supplemented by a First Supplemental Indenture, dated
as of March 15, 1988 and the Second Supplemental Senior
Indenture dated as of February 6, 1996 governing the
Notes (the "Indenture").
Each Note will be represented by either a
Global Security (as defined hereinafter) delivered to
the Trustee, as agent for the Depository Trust Company
("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a
certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note").
Only Notes denominated and payable in U.S. dollars may
be issued as Book-Entry Notes. An owner of a Book-
Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the
specific terms of, the solicitation of offers by the
Agents and the sale as a result thereof by the Company
are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its
Treasury Department. The Company will advise the
Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the
Agents and the Trustee are to communicate regarding
offers to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms
of the offering are explained below. Book-Entry Notes
will be issued in accordance with the administrative
procedures set forth in Part I hereof, as adjusted in
accordance with changes in DTC's operating
requirements, and Certificated Notes will be issued in
accordance with the administrative procedures set forth
in Part II hereof. To the extent the procedures set
forth below conflict with the provisions of the Notes,
the Indenture, DTC's operating requirements or the
Distribution Agreement, the relevant provisions of the
Notes, the Indenture, DTC's operating requirements and
the Distribution Agreement shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the
Book-Entry Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the
custodial, document control and administrative
functions described below, in accordance with its
respective obligations under a Letter of
Representations from the Company and the Trustee to DTC
dated as of the date hereof and a Medium-Term Note
Certificate Agreement between the Trustee and DTC and
its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as
defined under "Settlement" below) for
one or more Book-Entry Notes, the
Company will issue a single global
security in fully registered form
without coupons (a "Global Security")
representing up to $200,000,000
principal amount of all such Book-Entry
Notes that have the same original issue
date, original issue discount
provisions, if any, Interest Payment
Dates, Regular Record Dates, Interest
Payment Period, redemption provisions,
if any, Maturity Date, and, in the case
of Fixed Rate Notes, interest rate, or,
in the case of Floating Rate Notes,
initial interest rate, Base Rate, Index
Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier, if any, minimum interest
rate, if any, and maximum interest rate,
if any (collectively, the "Terms").
Each Global Security will be dated and
issued as of the date of its authentica
tion by the Trustee. Each Global Se
curity will bear an original issue date,
which will be (i) with respect to an
original Global Security (or any portion
thereof), the original issue date
specified in such Global Security and
(ii) following a consolidation of Global
Securities, with respect to the Global
Security resulting from such
consolidation, the most recent Interest
Payment
Date to which interest has been
paid or duly provided for on the
predecessor Global Securities,
regardless of the date of authentication
of such resulting Global Security. No
Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry
Notes or (ii) any Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP
numbers, which series consists of
approximately 900 CUSIP numbers and
relates to Global Securities
representing Book-Entry Notes and
book-entry medium-term notes issued by
the Company with other series designa
tions. The Trustee, the Company and DTC
have obtained from the CUSIP Service
Bureau a written list of such reserved
CUSIP numbers. The Company will assign
CUSIP numbers to Global Securities as
described below under Settlement
Procedure "B". DTC will notify the
CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has
assigned to Global Securities. The
Trustee will notify the Company at any
time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to
Global Securities, and, if it deems
necessary, the Company will reserve
additional CUSIP numbers for assignment
to Global Securities. Upon obtaining
such additional CUSIP numbers, the
Company shall deliver a list of such
additional CUSIP numbers to the Trustee
and DTC.
Registration: Global Securities will be issued
only in fully registered form without
coupons. Each Global Security will be
registered in the name of CEDE & CO., as
nominee for DTC, on the securities
register for the Notes maintained under
the Indenture. The beneficial owner of
a Book-Entry Note (or one or more
indirect participants in DTC designated
by such owner) will designate one or
more participants in DTC (with respect
to such Book-Entry Note, the
"Participants") to act as agent or
agents for such owner in connection with
the book-entry system maintained by DTC,
and DTC will record in book-entry form,
in accordance with instructions provided
by such Participants, a credit balance
with respect to such beneficial owner in
such Book-Entry Note in the account of
such Participants. The ownership
interest of such beneficial owner (or
such participant) in such Book-Entry
Note 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 Note.
Exchanges: The Trustee may deliver to DTC and
the CUSIP Service Bureau at any time a
written notice of consolidation (a copy
of which shall be attached to the result
ing Global Security described below)
specifying (i) the CUSIP numbers of two
or more Outstanding Global Securities
that represent (A) Fixed Rate Book-Entry
Notes having the same Terms and for
which interest has been paid to the same
date or (B) Floating Rate Book-Entry
Notes having the same Terms and for
which interest has been paid to the same
date, (ii) a date, occurring at least
thirty days after such written notice is
delivered and at least thirty days
before the next Interest Payment Date
for such Book-Entry Notes, on which such
Global Securities shall be exchanged for
a single replacement Global Security and
(iii) a new CUSIP number, obtained from
the Company, to be assigned to such
replacement Global Security. Upon
receipt of such a notice, DTC will send
to its participants (including the
Trustee) a written reorganization notice
to the effect that such exchange will
occur on such date. Prior to the
specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau
a written notice setting forth such ex
change date and such new CUSIP number
and stating that, as of such exchange
date, the CUSIP numbers of the Global
Securities to be exchanged will no
longer be valid. On the specified ex
change date, the Trustee will exchange
such Global Securities for a single
Global Security bearing the new CUSIP
number and the CUSIP numbers of the
exchanged Global Securities will, in
accordance with CUSIP Service Bureau
procedures, be canceled and not
immediately reassigned. Notwithstanding
the foregoing, if the Global Securities
to be exchanged exceed $200,000,000 in
aggregate principal amount, one Global
Security will be authenticated and is
sued to represent each $200,000,000 of
principal amount of the exchanged Global
Securities and an additional Global
Security will be authenticated and
issued to represent any remaining
principal amount of such Global Secu
rities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on
a date nine months or more after the
settlement date for such Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of $_____ or any
amount in excess thereof that is an
integral multiple of $_____. Global
Securities will be denominated in
principal amounts not in excess of
$200,000,000. If one or more Book-Entry
Notes having an aggregate principal
amount in excess of $200,000,000 would,
but for the preceding sentence, be
represented by a single Global Security,
then one Global Security will be
authenticated and issued to represent
each $200,000,000 principal amount of
such Book-Entry Note or Notes and an
additional Global Security will be
authenticated and issued to represent
any remaining principal amount of such
Book-Entry Note or Notes. In such a
case, each of the Global Securities
representing such Book-Entry Note or
Notes shall be assigned the same CUSIP
number.
Interest: General. Interest, if any, on
each Book-Entry Note will accrue from
the original issue date for the first in
terest period or the last date to which
interest has been paid, if any, for each
subsequent interest period, on the
Global Security representing such
Book-Entry Note, and will be calculated
and paid in the manner described in such
Book-Entry Note and in the Prospectus
(as defined in the Distribution
Agreement), as supplemented by the
applicable Pricing Supplement. Unless
otherwise specified therein, each
payment of interest on a Book-Entry Note
will include interest accrued to but
excluding the Interest Payment Date
(provided that, in the case of Floating
Rate Book-Entry Notes which reset daily
or weekly, interest payments will
include accrued interest to and
including the Regular Record Date
immediately preceding the Interest
Payment Date) or to but excluding
Maturity (other than a Maturity of a
Fixed Rate Book-Entry Note occurring on
the 31st day of a month, in which case
such payment of interest will include
interest accrued to but excluding the
30th day of such month). Interest
payable at the Maturity of a Book-Entry
Note will be payable to the Person to
whom the principal of such Note is
payable. Standard & Poor's Corporation
will use the information received in the
pending deposit message described under
Settlement Procedure "C" below in order
to include the amount of any interest
payable and certain other information
regarding the related Global Security in
the ap-
propriate (daily or weekly) bond
report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular
Record Date with respect to any Interest
Payment Date shall be the date fifteen
calendar days immediately preceding such
Interest Payment Date.
Interest Payment Dates on Fixed Rate
Book-Entry Notes. Unless otherwise
specified pursuant to Settlement Pro
cedure "A" below, interest payments on
Fixed Rate Book-Entry Notes will be made
semiannually on May 15 and November 15
of each year and at Maturity; provided,
however, that in the case of a Fixed
Rate Book-Entry Note issued between a
Regular Record Date and an Interest
Payment Date, the first interest payment
will be made on the Interest Payment
Date following the next succeeding
Regular Record Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Interest payments
will be made on Floating Rate Book-Entry
Notes monthly, quarterly, semi-annually
or annually. Unless otherwise agreed
upon, interest will be payable, in the
case of Floating Rate Book-Entry Notes
with a monthly Interest Payment Period,
on the third Wednesday of each month;
with a quarterly Interest Payment
Period, on the third Wednesday of March,
June, September and December of each
year; with a semi-annual Interest
Payment Period on the third Wednesday of
the two months specified pursuant to
Settlement Procedure "A" below; and with
an annual Interest Payment Period, on
the third Wednesday of the month
specified pursuant to Settlement
Procedure "A" below; provided, however,
that if an Interest Payment Date for a
Floating Rate Book-Entry Note would
otherwise be a day that is not a
Business Day with respect to such
Floating Rate Book-Entry Note, such
Interest Payment Date will be the next
succeeding Business Day with respect to
such Floating Rate Book-Entry Note,
except in the case of a Floating Rate
Book-Entry Note for which the Base Rate
is LIBOR, if such Business Day is in the
next succeeding calendar month, such
Interest Payment Date will be the immedi
ately preceding Business Day; and pro
vided further, that in the case of a
Floating Rate Book-Entry Note issued
between a Regular Record Date and an
Interest Payment Date, the first in
terest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Notice of Interest Payment and Regular
Record Dates. On the first Business Day
of January, April, July and October of
each year, the Trustee will deliver to
the Company and DTC a written list of
Regular Record Dates and Interest
Payment Dates that will occur with re
spect to Book-Entry Notes during the
six-month period beginning on such first
Business Day. Promptly after each
Interest Determination Date for Floating
Rate Book-Entry Notes, _________, as
Calculation Agent, will notify Standard
& Poor's Corporation of the interest
rates determined on such Interest
Determination Date.
Calculation of Fixed Rate Book-Entry Notes. Interest
Interest: on Fixed Rate Book-Entry Notes (in
cluding interest for partial periods)
will be calculated on the basis of a
360-day year of twelve 30-day months.
Floating Rate Book-Entry Notes. In
terest rates on Floating Rate Book-Entry
Notes will be determined as set forth in
the form of Notes. Interest on Floating
Rate Book-Entry Notes, except as
otherwise set forth therein, will be
calculated on the basis of actual days
elapsed and a year of 360 days, except
that in the case of a Floating Rate
Book-Entry Note for which the Base Rate
is Treasury Rate, interest will be
calculated on the basis of the actual
number of days in the year.
Payments of Payment of Interest Only. Promptly
Principal and after each Regular
Interest: Record Date, the Trustee will
deliver to the Company and
DTC a written notice setting forth,
by CUSIP number, the amount of interest
to be paid on each Global Security on
the following Interest Payment Date
(other than an Interest Payment Date
coinciding with Maturity) and the total
of such amounts. DTC will confirm the
amount payable on each Global Security
on such Interest Payment Date by ref
erence to the appropriate (daily or
weekly) bond reports published by
Standard & Poor's Corporation. The
Company will pay to the Trustee, as
paying agent, the total amount of
interest due on such Interest Payment
Date (other than at Maturity), and the
Trustee will pay such amount to DTC, at
the times and in the manner set forth be-
low under "Manner of Payment". If any
Interest Payment Date for 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
Interest Payment Date.
Payments at Maturity. On or about the
first Business Day of each month, the
Trustee will deliver to the Company and
DTC a written list of principal and
interest to be paid on each Global
Security maturing (on a Maturity or
Redemption Date or otherwise) in the
following month. The Trustee, the
Company and DTC will confirm the amounts
of such principal and interest payments
with respect to each such Global
Security on or about the fifth Business
Day preceding the Maturity of such
Global Security. On or before Maturity,
the Company will pay to the Trustee, as
paying agent, the principal amount of
such Global Security, together with
interest due at such Maturity. The
Trustee will pay such amount to DTC at
the times and in the manner set forth
below under "Manner of Payment". If any
Maturity of a Global Security
representing Book-Entry Notes is not a
Business Day, the payment due on such
day shall be made on the next succeeding
Business Day and no interest shall
accrue on such payment for the period
from and after such Maturity. Promptly
after payment to DTC of the principal
and interest due at Maturity of such
Global Security, the Trustee will cancel
such Global Security in accordance with
the Indenture and so advise the Company.
Manner of Payment. The total amount of
any principal and interest due on Global
Securities on any Interest Payment Date
or at Maturity shall be paid by the
Company to the Trustee in immediately
available funds no later than 11:00 A.M.
(New York City time) on such date. The
Company will make such payment on such
Global Securities by instructing the
Trustee to withdraw funds from an ac
count maintained by the Company at The
Chase Manhattan Bank or by wire transfer
to an account previously notified to the
Company. The Company will confirm any
such instructions in writing to the
Trustee. Prior to 10 A.M. (New York
City time) on the date of Maturity or as
soon as possible thereafter, the Trustee
will pay by separate wire transfer
(using Fed-wire message entry
instructions in a form previously
specified by DTC) to an account at the
Federal Reserve Bank of New York
previously specified by DTC, in
funds available for immediate use by DTC, each
payment of principal (together with
interest thereon) due on a Global
Security on such date. On each Interest
Payment Date (other than at Maturity),
interest payments shall be made to DTC,
in funds available for immediate use by
DTC, in accordance with existing
arrangements between the Trustee and
DTC. On each such date, DTC will pay,
in accordance with its SDFS operating
procedures then in effect, such amounts
in funds available for immediate use to
the respective Participants in whose
names the Book-Entry Notes represented
by such Global Securities are recorded
in the book-entry system maintained by
DTC. Neither the Company (as issuer or
as paying agent) or the Trustee shall
have any direct responsibility or lia
bility for the payment by DTC to such
Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any
taxes required under applicable law to
be withheld from any interest payment on
a Book-Entry Note will be determined and
withheld by the Participant, indirect
participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial
owner of such Note.
Procedure for The Company and the Agents will discuss
Rate Setting from time to time the aggregate principal
Posting: price of, and the interest rates to
be borne by, Book-Entry Notes that may
be sold as a result of the solicitation
of orders by the Agents. If the Company
decides to set prices of, and rates
borne by, any Book-Entry Notes in
respect of which the Agents are to
solicit orders (the setting of such
prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates
previously posted by it, it will
promptly advise the Agents of the prices
and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,
Rejection of each Agent will advise the Company promptly by
Orders: telephone of all orders to purchase Book-
Entry Notes received by such Agent, other than those
rejected by it in whole or in part in
the reasonable exercise of its
discretion. Unless otherwise agreed by
the Company and the Agents, the Company
has the right to accept orders to
purchase Book-Entry Notes and may reject
any such orders in whole or in part.
Preparation of If any order to purchase a Book-Entry Note is accepted by
Pricing or on behalf of the Company, the Company will prepare a
Supplement: pricing supplement (a "Pricing Sup
plement") reflecting the terms of such
Book-Entry Note and will file said
Pricing Supplement with the Commission
in accordance with the applicable
paragraph of Rule 424(b) under the Act
and will supply at least ten copies
thereof (and additional copies if
requested) to the Agent which presented
the order (the "Presenting Agent"). The
Company shall deliver the Pricing
Supplements via next day mail or
telecopy to arrive no later than 11:00
A.M. on the Business Day following the
sale date to the Presenting Agent at the
address designated by it to the Company.
The Presenting Agent will cause a
Prospectus and Pricing Supplement to be
delivered to the purchaser of such
Book-Entry Note.
In each instance that a Pricing Sup
plement is prepared, the Presenting
Agent will affix the Pricing Supplement
to Prospectuses prior to their use.
Outdated Pricing Supplements (other than
those retained for files), will be
destroyed.
Suspension of Subject to the Company's representations, warranties and
Solicitation; covenants contained in the Distribution Agreement, the
Amendment or Company may instruct the Agents to suspend at any time,
Supplement: for any period of time or
permanently, the solicitation of orders
to purchase Book-Entry Notes. Upon
receipt of such instructions, the Agents
will forthwith suspend solicitation
until such time as the Company has
advised them that such solicitation may
be resumed.
In the event that at the time the Com
pany suspends solicitation of purchases
there shall be any orders outstanding
for settlement, the Company will
promptly advise the Agents and the
Trustee whether such orders may be
settled and whether copies of the
Prospectus as in effect at the time of
the suspension, together with the
appropriate Pricing Supplement, 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
that 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.
If the Company decides to amend or
supplement the Registration Statement
(as defined in the Distribution
Agreement) or the Prospectus, it will
promptly advise the Agents and furnish
the Agents with the proposed
amendment or supplement and with such certificates
and opinions as are required, all to the
extent required by and in accordance
with the terms of the Distribution
Agreement. Subject to the provisions of
the Distribution Agreement, the Company
may file with the Commission any such
supplement to the Prospectus relating to
the Notes. The Company will provide the
Agents and the Trustee with copies of
any such supplement, and confirm to the
Agents that such supplement has been
filed with the Commission pursuant to
the applicable paragraph of Rule 424(b).
Procedures For When the Company has determined to change the interest
Rate Changes: rates of Book-Entry Notes being
offered, it will promptly advise the
Agents and the Agents will forthwith
suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed
interest rates. At such time as the
Company has advised the Agents of the
new interest rates, the Agents may
resume solicitation of orders. Until
such time only "indications of interest"
may be recorded. Within two Business
Days after any sale of Book-Entry Notes,
the Company will file with the
Securities and Exchange Commission a
Pricing Supplement to the Prospectus
relating to such Book-Entry Notes that
reflects the applicable interest rates
and other terms and will deliver copies
of such Pricing Supplement to the
Agents.
Delivery of A copy of the Prospectus and a Pricing Supplement relating
Prospectus: to a Book-Entry Note must accompany
or precede the earliest of any written
offer of such Book-Entry Note,
confirmation of the purchase of such
Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If
notice of a change in the terms of the
Book-Entry Notes is received by the
Agents between the time an order for a
Book-Entry Note is placed and the time
written confirmation thereof is sent by
the Presenting Agent to a customer or
his agent, such confirmation shall be
accompanied by a Prospectus and Pricing
Supplement setting forth the terms in
effect when the order was placed.
Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the
Presenting Agent will deliver a
Prospectus and Pricing Supplement as
herein described with respect to each
Book-Entry Note sold by it. The Company
will make such delivery if such
Book-Entry Note is sold directly by the
Company to a purchaser (other than an
Agent).
Confirmation: For each order to purchase a Book-
Entry Note solicited by any Agent and
accepted by or on behalf of the Company,
the Presenting Agent will issue a
confirmation to the purchaser, with a
copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
Settlement: The receipt by the Company of
immediately available funds in payment
for a Book-Entry Note and the
authentication and issuance of the
Global Security representing such
Book-Entry Note shall constitute
"settlement" with respect to such
Book-Entry Note. All orders accepted by
the Company will be settled on the third
Business Day following the date of sale
of such Book-Entry Note pursuant to the
timetable for settlement set forth below
unless the Company and the purchaser
agree to settlement on another day which
shall be no earlier than the next
Business Day following the date of sale.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company through
any Agent, as agent, shall be as
follows:
A. The Presenting Agent
will advise the Company by
telephone of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the
case of a Fixed Rate
Book-Entry Note, the interest
rate or, in the case of a
Floating Rate Book-Entry Note,
the Base Rate, initial
interest rate (if known at
such time), Index Maturity,
Interest Reset Period,
Interest Reset Dates, Spread
or Spread Multiplier (if any),
minimum interest rate (if any)
and maximum interest rate (if
any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Redemption provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined
as provided in section 2 of
the Distribution Agreement.
9. Whether such Book-Entry Note is issued
at an original issue discount
and, if so, the total amount
of OIL, the yield to maturity
and the initial accrual period
OIL.
B. The Company will assign a CUSIP number to the
Global Security representing such
Book-Entry Note and then advise
the Trustee by telephone (confirmed
in writing at any time on the same
date) or electronic transmission of
the information set forth in
Settlement Procedure "A" above,
such CUSIP number and the name of
the Presenting Agent. The Company
will also notify the Presenting
Agent by telephone of such CUSIP
number as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal
System providing the following
settlement information to DTC
(which shall route such information
to Standard & Poor's Corporation),
the Presenting Agent and, upon
request, the Trustee:
1. The information set
forth in Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest
Payment Date for such Book-Entry Note, number
of days by which such date succeeds the
related Regular Record Date and amount of in
terest payable on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the
Global Security representing such Book-Entry
Note.
6. Whether such Global
Security will represent any other Book-Entry
Note (to the extent known at such time).
D. To the extent the Company has not
already done so, the Company
will deliver to the Trustee a
Global Security in a form that
has been approved by the
Company, the Agents and the
Trustee.
E. The Trustee will complete such
Book-Entry Note, stamp the
appropriate legend, as
instructed by DTC, if not
already set forth thereon, and
authenticate the Global
Security representing such
Book-Entry Note.
F. DTC will credit such Book-Entry Note to
the Trustee's participant account at DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit
such Book-Entry Note to the
Trustee's participant account
and credit such Book-Entry
Note to the Presenting Agent's
participant account and (ii)
debit the Presenting Agent's
settlement account and credit
the Trustee's settlement
account for an amount equal to
the price of such Book-Entry
Note less the Presenting
Agent's commission. The entry
of such a deliver order shall
constitute a representation
and warranty by the Trustee
to DTC that (i) the Global
Security representing such
Book-Entry Note has been
issued and authenticated and
(ii) the Trustee is holding
such Global Security pursuant
to the Medium-Term Note
Certificate Agreement 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 Book-Entry Note to
the Presenting Agent's
participant account and credit
such Book-Entry Note to the
participant accounts of the
Participants with respect to
such Book-Entry Note and (ii)
to debit the settlement
accounts of such Participants
and credit the settlement
account of the Presenting
Agent for an amount equal to
the price of such Book-Entry
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.
X. The Trustee will, upon receipt of
funds from the Agent in
accordance with Settlement
Procedure "G", credit or wire
transfer to an account of the
Company previously notified in
writing to the Trustee funds
available for immediate use in
the amount transferred to the
Trustee in accordance with
Settlement Procedure "G".
K. The Presenting Agent will confirm
the purchase of such
Book-Entry Note to the
purchaser either by
transmitting to the
Participants with respect to
such Book-Entry Note a
confirmation order or orders
through DTC's institutional
delivery system or by mailing
a written confirmation to such
purchaser.
Settlement For orders of Book-Entry Notes solicited
Procedures by any Agent and accepted by the Company
Timetable: for settlement on the first
Business Day after the sale date,
Settlement Procedures "A" through "K"
set forth above shall be completed as
soon as possible but not later than the
respective times (New York City time)
set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than
one Business Day after the sale date,
Settlement Procedures "A", "B" and
"C" shall be completed as soon as
practicable but no later than 11:00
A.M. and 12:00 Noon on the first
Business Day after the sale date and
no later than 2:00 P.M. on the
Business Day before the settlement
date, respectively. If the initial
interest rate for a Floating Rate
Book-Entry Note has not been
determined at the time that
Settlement Procedure "A" is
completed, Settlement Procedures "B"
and "C" shall be completed as soon as
such rate has been determined but no
later than 12:00 Noon and 2:00 P.M.,
respectively, on the Business Day
before the settlement date.
Settlement Procedure "I" is subject
to extension in accordance with any
extension of Fed-wire closing
deadlines and in the other events
specified in SDFS operating
procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's
Participant Terminal System, a
cancellation message to such effect
by no later than 2:00 P.M. on the
Business Day immediately preceding
the scheduled settlement date.
Failure to If the Trustee fails to enter an
Settle: SDFS deliver order with respect to a
Book-Entry Note 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
Book-Entry Note to the Trustee's
participant account. DTC will
process the withdrawal message,
provided that the Trustee's
participant account contains a
principal amount of the Global Securi
ty representing such Book-Entry Note
that is at least equal to the princi
pal amount to be debited. If a with
drawal message
is processed with respect to all the Book-Entry
Notes represented by a Global Security, the
Trustee will cancel such Global Secu
rity in accordance with the Indenture
and so advise the Company and the
Trustee, and the Trustee will make
appropriate entries in its records.
The CUSIP number assigned to such
Global Security shall, in accordance
with CUSIP Service Bureau procedures,
be canceled and not immediately
reassigned. If a withdrawal message
is processed with respect to one or
more, but not all, of the Book-Entry
Notes represented by a Global
Security, the Trustee will exchange
such Book-Entry Note for two Global
Securities, one of which shall repre
sent such Book-Entry Notes and shall
be canceled immediately after
issuance and the other of which shall
represent the other Book-Entry Notes
previously represented by the
surrendered Global Security and shall
bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-
Entry 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
Presenting Agent may enter SDFS
deliver orders through DTC's
Participant Terminal System reversing
the orders entered pursuant to
Settlement Procedures "H" and "G",
respectively. Thereafter, the
Trustee will deliver the withdrawal
message and take the related actions
described in the preceding paragraph.
If such failure shall have occurred
for any reason other than a default
by the Presenting Agent in the
performance of its obligations
hereunder and under the Distribution
Agreement, then the Company will
reimburse the Presenting Agent or the
Trustee, as applicable, on an equita
ble basis for the loss of the use of
the funds during the period when they
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 one or more, but not
all, of the Book-Entry Notes to have
been represented by a Global
Security, the Trustee will provide,
in accordance with
Settlement Procedure "E", for the authentication
and issuance of a Global Security
representing the other Book-Entry
Notes to have been represented by
such Global Security and will make
appropriate entries in its records.
Trustee Not Nothing herein shall be deemed to require the Trustee
to Risk Fund: to risk or expend its own funds in
connection with any payment to the
Company, DTC, the Agents or the
purchaser, it being understood by all
parties that payments made by the
Trustee to the Company, DTC, the
Agents or the purchaser shall be made
only to the extent that funds are
provided to the Trustee for such
purpose.
Authenticity of The Company will cause the Trustee to furnish the
Signatures: Agents from time to time with the
specimen signatures of each of the
Trustee's officers, employees or
agents who has been authorized by the
Trustee to authenticate Book-Entry
Notes, but neither the Trustee nor
any Agent will have any obligation or
liability to the Company or the
Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the
Company or the Trustee on any Book-
Entry Note.
Payment of Each Agent shall forward to the Company, a monthly
Expenses: statement of the out-of-pocket
expenses incurred by
such Agent during that month that are
reimbursable to it pursuant to the
terms of the Distribution Agreement.
The Company will remit payment to the
Agents currently on a monthly basis.
Advertising The Company will determine with the Agents the
Costs: amount of advertising that may be
appropriate in soliciting offers to
purchase the Book-Entry Notes.
Advertising expenses will be paid by
the Company.
Periodic Periodically, the Trustee will send to the Company a
Statements statement setting forth the principal amount of Book-
from the Entry Notes Outstanding as of that
Trustee: date and setting forth a brief
description of any sales of Book-
Entry Notes which the Company has
advised the Trustee but which have
not yet been settled.
PART II
Administrative Procedures for Certificated Notes
Maturities: Each Certificated Note will mature on
a date (the "Maturity Date") nine
months or more after the date of
issue of such Certificated Note by
the Company (the "Closing Date").
Price to Public: Each Certificated Note will be issued
at the percentage of principal amount
specified in the applicable sticker
to the Prospectus (as defined in
Section 1(a) of the Distribution
Agreement) relating to the
Certificated Notes.
Currencies: The Certificated Notes will be
denominated in U.S. dollars or in
such other currency or currency unit
as specified in the applicable
sticker to the Prospectus (the
"Specified Currency").
Denominations: The denomination of any Certificated
Note will be a minimum of $1,000 or
any amount in excess thereof which is
an integral multiple of $1,000, or
the equivalent, as determined
pursuant to the provisions of such
Certificated Note, of U.S. $1,000
(rounded down to a multiple of 1,000
units of such Specified Currency) and
any amount in excess thereof which is
a multiple of 1,000 units of such
Specified Currency.
Registration: Certificated Notes will be issued
only in fully registered form.
Interest Each Certificated Note will bear
Payments: interest at either a fixed rate (a
"Fixed Rate Certificated Note") or at
a variable rate as described in such
certificated Note and in the
Prospectus (a "Floating Rate
Certificated Note").
Except as set forth in the
Certificated Note, each Certificated
Note will bear interest from the
Closing Date of such Certificated
Note at the annual rate stated on the
face thereof, payable semiannually on
May 15 and November 15 of each year
(each an "Interest Payment Date") and
on the Maturity Date subject to
certain exceptions. Except as
otherwise agreed, interest (including
payments for partial periods) will be
calculated on the basis of a 360-day
year of 12 30-day months. Interest
will be payable to the person in
whose name the Certificated Note is
registered at the close of business
on the 15th day (each a "Record
Date") next preceding the Interest
Payment Date. The first payment of
interest on any Certificated Note
originally issued between a Record
Date and the related Interest Payment
Date will be made on such Interest
Payment Date immediately following
the next succeeding Record Date.
Notwithstanding the record date
provisions above, interest payable on
the Maturity Date will be payable to
the person to whom principal shall be
payable. Unless other arrangements
are made, all interest payments
(excluding interest payments made on
the Maturity Date) will be made by
check mailed to the person entitled
thereto as provided above.
Within 10 days following each Record
Date, the Trustee will inform the
Company of the total amount of the
interest payments to be made by the
Company on the next succeeding
Interest Payment Date and the
currency or currency units in which
such interest payments are to be
made. The Trustee will provide
monthly to the Company a list of the
principal and interest to be paid on
Certificated Notes maturing in the
next succeeding month.
Calculation __________ will be the
Agent: Calculation Agent for the Floating
Rate Certificated Notes. The
Calculation Agent will confirm in
writing to the Trustee and any paying
agent any calculation immediately
after the determination thereof.
Neither the Trustee nor any paying
agents shall be responsible for any
such calculation.
Procedure for The Company and the Agents will discuss from time
Rate Setting to time the aggregate principal
and Posting: amount of, the issuance price of, and
the interest rates to be borne by,
Certificated Notes that may be sold
as a result of the solicitation of
offers by the Agents. If the Company
decides to set prices of, and rates
borne by, any Certificated Notes in
respect of which the Agents are to
solicit offers (the setting of such
prices and rates to be referred to
herein as "posting") or if the
Company decides to change prices or
rates previously posted by it,
it will promptly advise the Agents of
the prices and rates to be posted.
Acceptance of If the Company posts prices and
Offers: rates as provided above, each Agent
as agent for and on behalf of the
Company, shall promptly accept offers
received by such Agent to purchase
Certificated Notes at the prices and
rates so posted, subject to (1) any
instructions from the Company
received by such Agent concerning the
aggregate principal amount of
Certificated Notes to be sold at the
prices and rates so posted or the
period during which such posted
prices and rates are to be in effect,
(2) any instructions from the Company
received by such Agent changing or
revoking any posted prices and rates,
(3) compliance with the securities
laws of the United States and all
other jurisdictions and (4) such
Agent's right to reject any such
offer as provided below.
If the Company does not post prices
and rates and an Agent receives an
offer to purchase Certificated Notes,
or, if while posted prices and rates
are in effect, an Agent receives an
offer to purchase Certificated Notes
on terms other than those posted by
the Company, such Agent will promptly
advise the Company of each such offer
other than offers rejected by such
Agent as provided below. The Company
will have the sole right to accept
any such offer to purchase
Certificated Notes. The Company may
reject any such offer in whole or in
part. Each Agent may, in its
discretion reasonably exercised,
reject any offer to purchase
Certificated Notes received by it in
whole or in part.
Preparation of If any offer to purchase a
Sticker: Certificated Note is accepted by or
on behalf of the Company, the
Company, with the approval of the
Agent who presented the offer (the
"Presenting Agent") will prepare a
sticker reflecting the terms of such
Certificated Note and will arrange to
have stickered Prospectuses, as
supplemented to relate to the
Certificated Notes and the plan of
distribution thereof (the
"Supplemented Prospectus"), filed
with the Commission in accordance
with Rule 424 under the Act and will
supply at least 10 copies thereof (or
additional copies if requested) to
the Presenting Agent and one copy to
the Trustee. The Company shall
deliver the stickers via next day
mail or telecopy to arrive no later
than 11:00 A.M. on the Business Day
following the sale
date to the Presenting Agent at the address
designated by it to the Company. The
Presenting Agent will cause a
stickered Supplemented Prospectus to
be delivered to the purchaser of the
Certificated Note.
In each instance that a sticker is
prepared, the Presenting Agent will
affix the sticker to Supplemented
Prospectuses prior to their use.
Outdated stickers, and the
Supplemented Prospectuses to which
they are attached (other than those
retained for files), will be
destroyed.
Suspension of The Company reserves the right in its sole discretion, to
Solicitation; instruct the Agents to suspend at any time, for any
Amendment or any period of time or permanently, the solicitation of
Supplement of offers to purchase Certificated
Prospectus: Notes. Upon receipt of instructions
from the Company, the Agents will
forthwith suspend solicitation of
offers to purchase Certificated Notes
from the Company until such time as
the Company has advised them that
such solicitation may be resumed.
If the Company decides to amend or
supplement the Registration Statement
or the Prospectus relating to the
Certificated Notes (except for a
supplement relating to an offering of
securities other than the
Certificated Notes), it will promptly
advise the Agents and the Trustee and
will furnish the Agents and the
Trustee with the proposed amendment
or supplement in accordance with the
terms of the Distribution Agreement.
The Company will file with the
Commission any supplement to the
Prospectus relating to the
Certificated Notes, provide the
Agents with sufficient copies of any
such supplement within a reasonable
time prior to the earlier of the
delivery of written confirmation of
the sale of Certificated Notes or the
delivery of Certificated Notes to any
purchaser thereof, and confirm to the
Agents that such supplement has been
filed with the Commission.
If at the time the Company suspends
solicitation of offers to purchase
Certificated Notes there shall be any
outstanding offers to purchase
Certificated Notes that have been
accepted by the Company but for which
settlement has not yet occurred, the
Company will promptly advise the
Presenting Agent or Agents and the
Trustee whether such sales may be
settled and whether
copies of the Prospectus as supplemented to the
time of the suspension may be
delivered in connection with the
settlement of such sales. 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 sales may not be
settled or that copies of such
Prospectus may not be so delivered.
Confirmation: For each offer to purchase a
Certificated Note solicited by a
Presenting Agent and accepted by or
on behalf of the Company, such
Presenting Agent will issue a
confirmation to the purchaser
thereof, with a copy to the Company,
setting forth the details set forth
above and delivery and payment
instructions.
Settlement: The Closing Date with respect to any
offer to purchase Certificated Notes
accepted by or on behalf of the
Company will be a date on or before
the fifth day that is not a Saturday
or Sunday and that, in the City of
New York (and with respect to LIBOR
Certificated Notes, the City of
London) is not a day on which banking
institutions are generally authorized
or obligated by law to close (a
"Business Day") next succeeding the
date of acceptance unless otherwise
agreed by the purchaser and the
Company and shall be specified upon
acceptance of such offer. The
Company will instruct the Trustee to
effect delivery of each Certificated
Note no later than 1:00 p.m., New
York City time, on the Closing Date
to the Presenting Agent for delivery
to the purchaser.
Details for For each offer to purchase
Settlement: a Certificated Note by or on behalf
of the Company, the Presenting Agent
will provide (unless provided by the
purchaser directly to the Company) by
telephone the following information
to the Company:
1. Exact name of registered
owner.
2. Exact address of registered
owner and address for payment
of principal and interest.
3. Taxpayer identification number
of registered owner.
4. Principal amount of the
Certificated Note.
5. Currency or Currency Unit.
6. Interest Rate or Interest Rate
Basis.
7. Spread or Spread Multiplier.
8. Issue Price of Certificated
Note
9. Closing Date.
10.Index Maturity.
11.Initial Interest Rate.
12.Maximum Interest Rate.
13.Minimum Interest Rate.
14.Reset Dates.
15.Maturity Date.
16.Presenting Agent's commission
to be paid in the form of a
discount upon settlement.
00.Xxx Proceeds to the Company.
18.Requested Denominations.
19.Interest Payment Dates.
20.Calculation Date.
21.All other items to be specified
in any Certificated Note.
The Presenting Agent will advise the
Company of the foregoing information
(unless provided by the purchaser
directly to the Company) for each
offer to purchase a Certificated Note
solicited by such Presenting Agent
and accepted by the Company in time
for the Trustee to prepare and
authenticate the required
Certificated Note. Before accepting
any offer to purchase a Certificated
Note to be settled in less than 3
Business Days, the Company shall
verify that the Trustee will have
adequate time to prepare and
authenticate such Certificated Note.
After receiving from the Presenting
Agent the details for each offer to
purchase a Certificated Note, the
Company will, after recording the
details and any necessary
calculations, provide appropriate
documentation to the Trustee,
including the information provided by
the Presenting Agent necessary for
the preparation and authentication of
such Certificated Note, and will
inform the Trustee (1) whether such
Certificated Note is an original
issue discount Certificated Note and
(2) the yield to maturity of any
Fixed Rate Certificated Note that is
an original issue discount
Certificated Note. Prior to
preparing the Certificated Note for
delivery (but in any case no later
than 10:00 a.m. on the Business Day
next preceding the Closing Date
therefor), the Trustee will confirm
the details of such issue with the
Presenting Agent by telephone.
Certificated Upon receipt of appropriate
Note documentation and
Deliveries and instructions, the Company will cause the Trustee
Cash Payment: to prepare and authenticate the
pre-printed 4-ply Certificated Note
packet containing the following
documents in forms approved by the
Company, the Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub 1 - For the Presenting
Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be
authenticated on the Closing Date
therefor. The Trustee will
authenticate each Certificated Note
and deliver it to the Presenting
Agent (and deliver the stubs as
indicated above), all in accordance
with written instructions (or oral
instructions confirmed in writing
(which may be given by telex,
telecopy or facsimile) on the next
Business Day) from the Company.
Delivery by the Trustee of each
Certificated Note will be made
against receipt by the Company on the
Closing Date in immediately available
funds of an amount equal to the issue
price of
such Certificated Note less
the Presenting Agent's commission.
Upon verification by the Presenting
Agent that a Certificated Note has
been prepared and properly
authenticated by the Trustee and
registered in the name of the
purchaser in the proper principal
amount, payment will be made to the
Company by the Presenting Agent the
same day in immediately available
funds. Such payment shall be made by
the Presenting Agent only upon prior
receipt by the Presenting Agent of
immediately available funds from or
on behalf of the purchaser unless the
Presenting Agent decides, at its
option, to advance its own funds for
such payment against subsequent
receipt of funds from the purchaser.
Upon delivery of a Certificated Note
to the Presenting Agent, the
Presenting Agent shall promptly
deliver such Certificated Note to the
purchaser.
If any Certificated Note is
incorrectly prepared, the Trustee
shall promptly issue a replacement
Certificated Note in exchange for the
incorrectly prepared Certificated
Note.
Fails: If the Presenting Agent, at its own
option, has advanced its own funds
for payment against subsequent
receipt of funds from the purchaser,
and if the purchaser shall fail to
make payment for the Certificated
Note on the Closing Date therefor,
the Presenting Agent will promptly
notify the Trustee and the Company by
telephone, promptly confirmed in
writing (but no later than the next
Business Day). In such event, the
Company shall promptly provide the
Trustee with appropriate
documentation and instructions
consistent with these procedures for
the return of the Certificated Note
to the Trustee and the Presenting
Agent will promptly return the
Certificated Note to the Trustee.
Upon (i) confirmation from the
Trustee in writing (which may be
given by telex, telecopy or
facsimile) that the Trustee has
received the Certificated Note and
upon (ii) confirmation from the
Presenting Agent in writing (which
may be given by telex, telecopy or
facsimile) that the Presenting Agent
has not received payment from the
purchaser (the matters referred to in
clauses (i) and (ii) are referred to
hereinafter as the
"Confirmations"),
the Company will promptly pay to the
Presenting Agent an amount in
immediately available funds equal to
the amount previously paid by the
Presenting Agent in respect of such
Certificated Note. Assuming receipt
of the Certificated Note by the
Trustee and of the Confirmations by
the Company, such payment will be
made on the Closing Date, if
reasonably practical, and in any
event not later than the Business Day
following the date of receipt of the
Certificated Note and Confirmations.
If a purchaser shall fail to make
payment for the Certificated Note for
any reason other than the failure of
the Presenting Agent to provide the
necessary information to the Company
as described above for settlement or
to provide a confirmation to the
purchaser within a reasonable period
of time as described above or
otherwise to satisfy its obligation
hereunder or in the Distribution
Agreement, and if the Presenting
Agent shall have otherwise complied
with its obligations hereunder and in
the Distribution Agreement, the
Company will reimburse the Presenting
Agent on an equitable basis for its
loss of the use of funds during the
period when they were credited to the
account of the Company.
Immediately upon receipt of the
Certificated Note in respect of which
the fail occurred, the Trustee will
void said Certificated Note, make
appropriate entries in its records
and destroy the Certificated Note;
and upon such action, the
Certificated Note will be deemed not
to have been issued, authenticated
and delivered.
Trustee Not to Nothing herein shall be deemed to require the Trustee
Risk Funds: to risk or expend its own funds in
connection with any payment to the
Company, or the Agents or the
purchaser, it being understood by all
parties that payments made by the
Trustee to either the Company or the
Agents shall be made only to the
extent that funds are provided to the
Trustee for such purpose.
Authenticity of The Company will cause the Trustee to furnish each
Signatures: Agent from time to time with the
specimen signatures of each of the
Trustee's officers, employees or
agents who has been authorized by the
Trustee to authenticate Certificated
Notes, but the Agents will have no
obligation or liability to the
Company or the Trustee in respect of
the authenticity of the signature of any
officer, employee or agent of the
Company or the Trustee on any
Certificated Note.
Payment of Each Agent shall forward to Company, a monthly
Expenses: statement of the out-of-pocket
expenses incurred by such Agent
during that month which are
reimbursable to it pursuant to the
terms of the Distribution Agreement.
The Company will remit payment to the
Agents currently on a monthly basis.
Advertising The Company will determine with
Costs: each Agent the amount of advertising
that may be appropriate in soliciting
offers to purchase the Certificated
Notes. Advertising expenses will be
paid by the Company.
Periodic Periodically, the Trustee will
Statements: send to the Company a statement
setting forth the principal amount of
Certificated Notes Outstanding as of
that date and setting forth a brief
description of any sales of
Certificated Notes which the Company
has advised the Trustee but which
have not yet been settled.
EXHIBIT B
TEXTRON INC.
Medium-Term Notes, Series D
TERMS AGREEMENT
__________, _____
Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention:
Re: Distribution Agreement
dated ___________, _____
The undersigned agrees to purchase the following
principal amount of your Medium-Term Notes: $
Interest Rate [or method of calculating interest rate]:
Maturity Date:
Initial Redemption Date:
Purchase Price:
Currency or Currency Unit
Settlement Date and Time:
Place of Delivery:
Method of Payment:
Lock-out Period:
[Other]
[insert modifications, if any, of opinions of
counsel, certificates from the Company or its officers and
letter from Xxxxx & Xxxxx referred to in Section 6(b) of the
Distribution Agreement].
[insert any provision for payment of counsel fees
and expenses as provided in Section 4(g) of the Distribution
Agreement]
[The provisions of Section 8 of the Distribution
Agreement shall be amended to substitute the term
"Purchaser" for the term "Agent" in each place in which the
term "Agent" appears in such Section.]
[Name of Agents]
By________________________________
Name:
Title:
Accepted:
TEXTRON INC.
By______________________
Name:
Title:
