EXHIBIT 1B
CASE CREDIT CORPORATION
$[ ]
Medium-Term Notes, Series C
Due from 9 Months to 30 Years from Date of Issue
FORM OF
DISTRIBUTION AGREEMENT
[Date]
[NAMES AND ADDRESSES
OF AGENTS]
Ladies and Gentlemen:
CASE CREDIT CORPORATION, a Delaware corporation (the "Company"),
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confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of its Medium-Term Notes, Series C due from 9 months
to 30 years from date of issue (the "Securities") at an aggregate initial
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offering price of up to $[ ], as such amount shall be reduced by the
aggregate initial offering price of any other debt securities issued by the
Company, whether within or without the United States ("Other Securities")
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pursuant to the registration statement referred to below, and agrees with each
of you (individually, an "Agent," and collectively, the "Agents," which term
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shall include any additional agents appointed pursuant to Section 13 hereof) as
set forth in this Agreement. The Securities will be issued under an indenture
dated as of October 1, 1997 (the "Indenture") between the Company and The Bank
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of New York, as Trustee (the "Trustee"). The Securities shall have the
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maturities, interest rates, redemption provisions, if any, and other terms set
forth in the Prospectus referred to below as it may be amended or supplemented
from time to time. The Securities will be issued, and the terms and rights
thereof established, from time to time by the Company in accordance with the
Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly to investors (other than
broker-dealers) on its own behalf, the Company hereby (i) appoints the Agents as
the exclusive agents of the Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company by others pursuant to Section
2(a) hereof and (ii) agrees that, except as otherwise contemplated herein,
whenever it determines to sell Securities directly to any Agent as principal, it
will
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enter into a separate agreement (each such agreement a "Terms Agreement"),
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substantially in the form of Exhibit A hereto, relating to such sale in
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accordance with Section 2(b) hereof.
The Company has prepared and filed a registration statement on Form S-
3 (No. 333-[ ]), including a base prospectus, and a registration statement
(No. 333-52725) in respect of the Securities with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
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Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). Such registration
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statements, including the exhibits thereto, as amended to the Commencement Date
(as hereinafter defined) are hereinafter referred to as the "Registration
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Statement" and the base prospectus in the form in which it appears in the
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registration statement No. 333-[ ] is hereinafter referred to as the
"Basic Prospectus." The Basic Prospectus as supplemented by the prospectus
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supplement or supplements (each a "Prospectus Supplement") specifically relating
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to the Securities in the form filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act is hereinafter referred
to as the "Prospectus." Any reference in this Agreement to the Registration
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Statement, the Basic Prospectus, any preliminary form of prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
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424 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 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
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the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend," "amendment" or "supplement"
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with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and include any
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documents filed under the Exchange Act after the date of this Agreement or the
date of the Basic Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference therein.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Agent as of the Commencement Date (as
hereinafter defined), as of each date on which the Company accepts an offer to
purchase Securities (including any purchase by an Agent as principal pursuant to
a Terms Agreement or otherwise), as of each date the Company issues and sells
Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations and warranties shall be deemed to relate to the Regis-
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tration Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) On the effective date of the Registration Statement relating to
the Securities (the "Effective Date"), such registration statement
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conformed as to form in all material respects to the requirements of the
Securities Act, the Trust Indenture Act of 1939, as amended (collectively
with all rules and regulations of the Commission thereunder, "Trust
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Indenture Act"), and the other applicable rules and regulations of the
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Commission ("Rules and Regulations") and did not include any untrue
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statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in Section
2, the Prospectus will conform as to form in all material respects to the
requirements of the Securities Act, the Trust Indenture Act and the Rules
and Regulations, and on such date the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
except that the foregoing does not apply to (a) statements in or omissions
from any of such documents based upon written information furnished to the
Company by any Agent specifically for use therein and (b) that part of the
Registration Statement that constitutes the Statement of Eligibility on
Form T-1 of the Trustee under the Trust Indenture Act filed as an exhibit
to the Registration Statement (the "Form T-1").
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(b) (A) No stop order suspending the effectiveness of the
Registration Statement is in effect and, to the knowledge of the Company,
no proceedings for that purpose are pending before or threatened by the
Commission and (B) each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed as to form in all material respects with the
Exchange Act and did not, or will not when so filed, contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in the light of the circumstances under which
they were made, not misleading, excluding any statement in any such
document that does not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 under the Act; provided, however, that this
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representation and warranty shall not apply to any statements in or
omissions from any such documents based upon written information furnished
to the Company by any Agent specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Pro -
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spectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or leasing of property or the conduct of its business requires
such qualification, other than any failure to be so qualified or in good
standing as would not singly or in the aggregate with all such other
failures reasonably be expected to have a material adverse effect on the
assets, liabilities, results of operations or financial condition of the
Company and its consolidated subsidiaries (as defined in Rule 1-02(x) of
the Commission's Regulation S-X), taken as a whole (a "Material Adverse
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Effect").
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(d) Each subsidiary (including, if applicable, partnerships of which
the Company is a general partner) of the Company that meets the conditions
for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X (collectively, the "Subsidiaries") is duly
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organized and validly existing as a corporation or partnership in good
standing (if applicable) under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing (if applicable)
in each jurisdiction in which the conduct of its business or its ownership,
leasing or operation of property requires such qualification, other than
any failure to be so qualified or in good standing as would not singly or
in the aggregate with all such other failures reasonably be expected to
have a Material Adverse Effect.
(e) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act; the
Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act; the Securities have been duly
authorized by the Company; and when the Securities are issued and delivered
in accordance with the Indenture and delivered to and paid for by the
purchasers thereof in accordance with this Agreement and any applicable
Terms Agreement, such Securities will have been duly executed,
authenticated, issued and delivered by the Company and the Securities of
any particular issuance of Securities will conform in all material respects
to the description thereof contained in the Prospectus as amended or
supplemented to relate to such issuance of Securites, and the Indenture and
such Securities 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, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles.
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(f) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by any applicable Terms
Agreement (including the provisions of this Agreement) in connection with
the issuance and sale of the Securities by the Company, except such as are
required under the Securities Act and the Trust Indenture Act and such as
may be required under state securities laws.
(g) The execution, delivery and performance of the Indenture, any
applicable Terms Agreement (including the provisions of this Agreement) and
the issuance and sale of the Securities and compliance with the terms and
provisions thereof do not and will not (i) contravene any provision of the
certificate of incorporation, by-laws or other organizational documents of
the Company or of any of the Subsidiaries, or (ii) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under (including, without limitation, any event which
with notice or lapse of time, or both, would constitute a default under),
or result in the creation or imposition of any lien, charge or encumbrance
upon any assets or properties of the Company or of any of the Subsidiaries
under, any statute, rule, regulation, order or decree of any governmental
agency or body or any court having jurisdiction over any of them or any of
their respective properties, assets or operations, or any indenture,
mortgage, loan agreement, note or other agreement or instrument for
borrowed money, any guarantee of any agreement or instrument for borrowed
money or any lease, permit, license or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the
properties, assets or operations of any of them is subject, other than any
such breach, violation, default, lien, charge or encumbrance as would not
singly or in the aggregate with all such other breaches, violations,
defaults, liens, charges or encumbrances reasonably be expected to have a
Material Adverse Effect.
(h) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company.
(i) The Company and the Subsidiaries have such certificates, permits,
licenses, franchises, consents, approvals, orders, authorizations and
clearances from appropriate governmental agencies and bodies ("Licenses")
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as are necessary to own, lease or operate their properties and to conduct
their businesses in the manner described in the Prospectus, and all such
Licenses are valid and in full force and effect, other than any failure to
have any such License or any failure of any such License to be valid and in
full force and effect as would not singly or in the aggregate with all such
other failures have a Material Adverse Effect.
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(j) Except as set forth in the Registration Statement and the
Prospectus, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"), other than any such failure to be in compliance as
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would not singly or in the aggregate with all such other failures known to
the Company reasonably be expected to have a Material Adverse Effect. With
respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the best
knowledge of the Company and except as set forth in the Registration
Statement and the Prospectus, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Company or any of the
Subsidiaries that may interfere with or prevent compliance or continued
compliance in all material respects with applicable Environmental Laws,
other than any such interference or prevention as would not singly or in
the aggregate with any such other interference or prevention known to the
Company reasonably be expected to have a Material Adverse Effect.
(k) Except as set forth in the Registration Statement and the
Prospectus, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to which the Company or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that would singly or in the
aggregate with all such other actions, suits, investigations or proceedings
reasonably be expected to have a Material Adverse Effect, or reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, the Indenture, the Securities
or any applicable Terms Agreement; and, to the best knowledge of the
Company, except as set forth in the Registration Statement and the
Prospectus, no such actions, suits, proceedings or investigations are
threatened.
(l) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus, except as
disclosed in or contemplated by the Prospectus: (A) Neither the Company nor
any Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) There has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company
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and no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock not consistent with past
practice; and (C) There has not been or become known any Material Adverse
Effect, or any development that could singly or in the aggregate with all
other developments reasonably be expected to result in a Material Adverse
Effect.
(m) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
(n) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Securities it commences doing such business.
(o) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best knowledge of the Company, is
threatened, that would singly or in the aggregate with all such other labor
disturbances reasonably be expected to have a Material Adverse Effect.
(p) The audited consolidated financial statements of the Company and
related schedules, if any, and notes included or incorporated by reference
in the Registration Statement and the Prospectus comply in all material
respects with the requirements of the Exchange Act and the Rules and
Regulations, were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein) and fairly present the consolidated financial
condition, results of operations, cash flows, and changes in stockholders'
equity of the Company on a consolidated basis, at the dates and for the
periods presented. The unaudited consolidated financial statements of the
Company and the related notes included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial condition, results of operations, cash flows, and changes in
stockholders' equity of the Company at the dates and for the periods to
which they relate, subject to year-end audit adjustments, have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as otherwise stated therein) and have
been prepared on a basis substantially consistent with that of the audited
financial statements referred to above, except as otherwise stated therein.
If pro forma financial statements with respect to the Company are included
or incorpo-
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rated by reference in the Registration Statement and the Prospectus, such
pro forma financial statements and other pro forma financial information
included in the Prospectus present fairly the information shown therein,
have been prepared in all material respects in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma basis described
therein and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. No pro forma financial statements or other pro forma financial
information with respect to the Company is required to be included or
incorporated by reference in the Registration Statement and the Prospectus
other than those included or incorporated by reference therein. The
Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges" or incorporated by reference into the Registration Statement
and in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein.
(q) Immediately after any sale of Securities by the Company hereunder
or under any applicable Terms Agreement, the aggregate amount of Securities
which shall have been issued and sold by the Company hereunder or under any
Terms Agreement and of any debt securities of the Company (other than the
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. (a) Solicitations
as Agent. On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Securities from the Company
upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in effect
with respect to any Agent, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell in the United States
Securities or any other substantially similar debt securities with a maturity at
the time of original issuance of 9 months to 30 years except (i) pursuant to
this Agreement and any Terms Agreement, (ii) pursuant to a private placement not
constituting a public offering under the Securities Act, (iii) in connection
with a firm commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous public offering of medium-term debt
securities, or (iv) in connection with the continuous offering of asset-backed
medium-
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term debt securities rated "AA" (or an equivalent rating) or higher by a
nationally recognized statistical rating organization (as defined for purposes
of Rule 436(g) under the Securities Act) (a "Rating Organization"). However, the
Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf to investors (other than broker-
dealers).
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Securities. Upon receipt of at least one
business day's prior notice from the Company, each Agent will suspend
solicitation of offers to purchase Securities from the Company until such time
as the Company has advised such Agent or Agents that such solicitation may be
resumed. During the period of time that such solicitation is suspended, the
Company shall not be required to deliver any opinions, letters or certificates
in accordance with Sections 4(i), 4(j) and 4(k); provided that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered for the Securities or for a change that the
Agents deem to be immaterial), no Agent shall be required to resume soliciting
offers to purchase Securities until the Company has delivered such opinions,
letters and certificates as such Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the sale of
each Security resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the purchase
price of such Security in an amount equal to the following applicable percentage
of the principal amount of such Security sold:
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COMMISSION PERCENTAGE OF
AGGREGATE PRINCIPAL AMOUNT OF
RANGE OF MATURITIES SECURITIES SOLD
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From 9 months to less than 1 year..................................... .125%
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From 1 year to less than 18 months.................................... .150%
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From 18 months to less than 2 years................................... .200%
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From 2 years to less than 3 years..................................... .250%
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From 3 years to less than 4 years..................................... .350%
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From 4 years to less than 5 years..................................... .450%
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From 5 years to less than 6 years..................................... .500%
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From 6 years to less than 7 years..................................... .550%
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From 7 years to less than 10 years.................................... .600%
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From 10 years to less than 15 years................................... .625%
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From 15 years to less than 20 years................................... .700%
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20 years to and including 30 years.................................... .750%
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The Agents are authorized to solicit offers to purchase Securities
only in the principal amount of $1,000 or any amount in excess thereof which is
an integral multiple of $1,000. Each Agent shall communicate to the Company,
orally or in writing, each offer to purchase Securities received by such Agent
as agent that in its judgment should be considered by the Company. The Company
shall have the sole right to accept offers to purchase the Securities and may
reject any such offer in whole or in part. Each Agent shall have the right, in
its sole discretion, to reject any offer to purchase Securities, as a whole or
in part, that it considers to be unacceptable and any such rejection shall not
be deemed a breach of its agreements herein contained. The procedural details
relating to the issue and delivery of Securities sold by an Agent as agent and
the payment therefor are set forth in the Administrative Procedures (as
hereinafter defined).
(b) Purchases as Principal. Each sale of Securities to any Agent as
principal shall be made in accordance with the terms of this Agreement and
(unless such Agent shall otherwise agree) a Terms Agreement which will provide
for the sale of such Securities to, and the purchase thereof by, such Agent. A
Terms Agreement will be substantially in the form of Exhibit A hereto but may
take the form of an exchange of any standard form of written telecommunication
between an Agent and the Company and may also specify certain provisions
relating to the reoffering of such Securities by such Agent. The commitment of
any Agent to purchase Securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein and in the applicable Terms Agreement
set forth. Each agreement by an Agent to purchase Securities as principal
(pursuant to a Terms Agreement or otherwise) shall specify the principal amount
of Securities to be purchased by such Agent pursuant thereto, the price to be
paid to the Company for such Securities, the maturity date of such Securities,
the interest rate or interest rate basis, if any, applicable to such Securities,
any other terms of such Securities, the time and date and place of delivery of
and payment for such Securities (the time and date of any and each such delivery
and payment, the "Time of Delivery") and any provisions relating to rights of,
and default by, underwriters acting together with such Agent in the reoffering
of Securities, and shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 4 hereof.
Unless otherwise specified in a Terms Agreement, the procedural details relating
to the issue and delivery of Securities purchased by an Agent as principal and
the payment therefor shall be as set forth in the Administrative Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each
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Agent shall have complete discretion as to the manner in which it solicits
purchasers for the Securities and as to the identity thereof.
(d) Administrative Procedures. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Company and each of the Agents.
3. COMMENCEMENT DATE. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as defined below) shall
be delivered to the Agents at the offices of Xxxxx, Brown & Xxxxx, Chicago,
Illinois, at 9:00 a.m., Chicago time, on the date of this Agreement, which date
and time of such delivery may be postponed by agreement between the Agents and
the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities is commenced or the first
date on which the Company accepts an offer by any Agent to purchase Securities
as principal (such time and date being referred to herein as the "Commencement
Date").
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
each Agent:
(a) (i) To make no amendment or supplement (other than a Pricing
Supplement with respect to any Securities not to be sold to or through an
Agent) to the Registration Statement or the Prospectus prior to the
termination of the offering of the Securities pursuant to this Agreement or
any Terms Agreement which shall be reasonably disapproved by any Agent
after reasonable opportunity to comment thereon, unless in the opinion of
counsel for the Company such amendment or supplement is required by law;
provided, however, that the foregoing shall not apply to any of the
Company's periodic filings with the Commission described in subsection
(iii) below, copies of which filings the Company will cause to be delivered
to the Agents promptly after their transmission to the Commission for
filing; (ii) subject to the foregoing clause (i), promptly to cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file such
Pricing Supplement in accordance with Rule 424(b) under the Securities Act;
and (iii) promptly to file all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section
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13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Securities. The Company will promptly advise each Agent (i) of the filing
of any amendment or supplement to the Basic Prospectus or any amendment to
the Registration Statement and of the effectiveness of any such amendment
to the Registration Statement; (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of any prospectus relating to
the Securities or the initiation or threatening of any proceeding for that
purpose, or of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or for additional
information; and (iii) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offering or sale in any jurisdiction or the initiation or threatening of
any proceeding for any such purpose. The Company agrees to use its best
efforts to prevent the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or of any
notification suspending any such qualification and, if issued, to use
promptly its best efforts to obtain withdrawal thereof as soon as possible.
If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in
the Prospectus, no Agent shall be obligated to solicit offers to purchase
Securities so long as it is not reasonably satisfied with such document.
(b) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the distribution of the Securities
provided that the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(c) To furnish each Agent and counsel to the Agents, at the expense
of the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein, and, during the period
mentioned in paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event shall occur as
a result of which the Prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make
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the statements therein, in the light of the circumstances under which they
were made, not misleading, or if, in the opinion of the Agents or the
Company, it is necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by telephone (with
confirmation in writing) and request each Agent (i) in its capacity as
agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall cease
such solicitations and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later); and (ii) to cease
sales of any Securities such Agent may then own as principal. If, as a
result of the occurrence of any event described in the first sentence of
this Section 4(d), the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, as then amended or supplemented,
it shall so advise each Agent promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus, as then amended or supplemented, that will
correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any such amendment or
supplement and any documents, opinions, letters and certificates furnished
to the Agents pursuant to Sections 4(e), 4(i), 4(j) and 4(k) in connection
with the preparation and filing of such amendment or supplement are
reasonably satisfactory in all respects to the Agents, upon the filing with
the Commission of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration Statement, the Agents
will resume the solicitation of offers to purchase Securities hereunder.
Notwithstanding any other provision of this Section 4(d), until the
distribution of any Securities any Agent may own as principal has been
completed or in the event such Agent, in the opinion of its counsel, is
otherwise required to deliver a prospectus in respect of a transaction in
the Securities, if any event described in the first sentence of this
Section 4(d) occurs, the Company will (i), at its own expense, promptly
prepare and file with the Commission an amendment or supplement to the
Registration Statement or Prospectus, reasonably satisfactory in all
respects to such Agent, that will correct such statement or omission or
effect such compliance, (ii) supply such amended or supplemented Prospectus
to such Agent in such quantities as such Agent may reasonably request and
(iii) furnish to such Agent pursuant to Sections 4(e), 4(i), 4(j) and 4(k)
such documents, certificates, opinions and letters as it may request in
connection with the preparation and filing of such amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement such
relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration
Statement, the Basic Pro-
-14-
spectus, any amendments or supplements thereto, the Indenture, the
Securities, this Agreement, the Administrative Procedures, any applicable
Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as the Agents may from time to time reasonably
request and shall notify the Agents promptly in writing of any downgrading,
or on its receipt of any notice of (i) any intended or potential
downgrading or (ii) any review or possible change that indicates a
downgrading or possible downgrading in the rating accorded any securities
of, or guaranteed by, the Company by any Rating Organization.
(f) To make generally available to its security holders and to such
Agent as soon as practicable earnings statements which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement with respect to each sale of Securities.
(g) To furnish to the Agent, during the term of this Agreement,
copies of all reports or other communications (financial or other)
furnished to holders of Securities and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed.
(h) From the date of any applicable Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal and
continuing to and including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of in
the United States any debt securities of or guaranteed by the Company which
are substantially similar to the Securities, without the prior written
consent of such Agent except (i) pursuant to this Agreement and any Terms
Agreement, (ii) pursuant to a private placement not constituting a public
offering under the Securities Act, (iii) in connection with a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities, or (iv)
in connection with the continuous public offering of asset-backed medium-
term debt securities rated "AA" (or an equivalent rating) or higher by a
Rating Organization.
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered
on the Securities or for a change the Agents deem to be immaterial) and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement or other agreement and such
-15-
Terms Agreement or other agreement specifies the delivery of an opinion
under this Section 4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written opinion
of Xxxxx, Brown & Xxxxx, or other counsel for the Company reasonably
satisfactory to such Agent, dated the date of such amendment or supplement,
or the related Time of Delivery relating to such sale, as the case may be,
in form reasonably satisfactory to such Agent, of the same tenor as the
opinion referred to in Section 6(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the date of such opinion, or, in lieu of such opinion, counsel last
furnishing such an opinion may furnish to such Agent a letter to the effect
that such Agent may rely on the opinion of such counsel which was last
furnished to such Agent to the same extent as though it were dated the date
of such letter (except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of delivery of such letter).
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the purchase
of Securities pursuant to such Terms Agreement or other agreement, the
Company shall cause the independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such amendment
or supplement or the related Time of Delivery relating to such sale, as the
case may be, in form reasonably satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(e) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter with such changes as may be
necessary to reflect such amended or supplemented financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented, provided, however, that, with
respect to any financial information or other matter, such letter may
reconfirm as true and correct at such date, as though made at and as of
such date, rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section 6(e)
hereof which was last furnished to such Agent.
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or an
amendment or
-16-
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities
or for a change the Agents deem to be immaterial), and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement or other agreement specifies the delivery of a certificate
under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a certificate
signed by an executive officer of the Company, dated the date of such
amendment or supplement or the related Time of Delivery relating to such
sale, as the case may be, in form reasonably satisfactory to such Agent, of
the same tenor as the certificates referred to in Section 6(e) but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the date of delivery of such certificate or to the effect
that the statements contained in the certificate referred to in Section
6(e) hereof which was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to such date).
5. COSTS AND EXPENSES. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Securities is
consummated, pay all costs and expenses incident to the performance of its
obligations hereunder and under any applicable Terms Agreement, including
without limiting the generality of the foregoing, all costs and expenses: (i)
incident to the preparation, issuance, execution, authentication and delivery of
the Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the Agents
(or in connection with any Terms Agreement, the applicable Agent) may reasonably
request pursuant to Section 4(b) (including reasonable related fees of counsel
for the Agents (or such Agent) and their reasonable related disbursements), (iv)
in connection with the listing of the Securities on any stock exchange,
(v)related to any filing with National Association of Securities Dealers, Inc.
("NASD"), (vi) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, any Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to the Agents and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided, (vii) payable to rating agencies in
connection with the rating of the Securities, (viii) incurred in connection with
the engagement of any qualified independent underwriter as may be required by
rules and regulations of NASD,(ix) the reasonable fees and disbursements of
counsel for the Agents
-17-
incurred in connection with the offering and sale of the Securities, including
any opinions to be rendered by such counsel hereunder and (x) any advertising
and out-of-pocket expenses reasonably incurred by the Agents in connection with
the performance of their obligations hereunder.
6. CONDITIONS. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the Securities,
the obligation of any Agent to purchase Securities as principal pursuant to any
Terms Agreement or otherwise, and the obligation of any other purchaser to
purchase Securities shall in each case be subject (1) to the condition that all
representations and warranties of the Company herein and all statements of
officers of the Company made in any certificate furnished pursuant to the
provisions hereof are true and correct (i) in the case of an Agent's obligation
to solicit offers to purchase Securities, at and as of such Solicitation Time
and (ii) in the case of any Agent's or any other purchaser's obligation to
purchase Securities, at and as of the time the Company accepts the offer to
purchase such Securities and, as the case may be, at and as of the related Time
of Delivery or time of purchase; (2) to the condition that at or prior to such
Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as
the case may be, the Company shall have complied with all its agreements and all
conditions on its part to be performed or satisfied hereunder prior to such
relevant time; and (3) to the following additional conditions when and as
specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery
or time of purchase, as the case may be:
(i) if any amendment to the Registration Statement filed prior
to the Commencement Date has not been declared effective as of the
Commencement Date, such amendment shall have been declared effective
not later than 5:30 p.m. (New York City time) on the Commencement
Date; if applicable, the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement) with respect to
such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceeding for that
purpose shall have been initiated or threatened by the Commission
which has not been resolved in the reasonable satisfaction of such
Agent; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(ii) subsequent to the date of this Agreement, there shall not
have occurred any downgrading, nor shall any notice have been given of
(A) any
-18-
intended or potential downgrading or (B) any review or possible change
that indicates a downgrading or possible downgrading in the rating
accorded any securities of or guaranteed by the Company by any Rating
Organization;
(iii) subsequent to the date of this Agreement, there shall not
have been any material adverse change in the financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
as amended or supplemented to such Solicitation Time or at the time
such offer to purchase was made, the effect of which in the judgment
of the applicable Agent makes it impracticable or inadvisable to
market the Securities on the terms and in the manner contemplated in
the Prospectus, as so amended or supplemented; and
(iv) subsequent to the date of this Agreement, there shall not
have occurred (a) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (b) any banking moratorium declared by U.S.
Federal or New York authorities; or (c) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the involved Agents, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Securities.
(b) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Xxxxx, Brown & Xxxxx,
special counsel for the Company, or other counsel for the Company
reasonably satisfactory to such Agent or Agents, shall have furnished to
the relevant Agent or Agents their written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
within the United States of America in which its ownership or leasing
of property or the conduct of its business re-
-19-
quires such qualification and where the failure to be so qualified or
in good standing would have a material adverse effect upon its
operations or financial condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, to
public policy considerations and to general equity principles; the
Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act; the Securities have been duly
authorized by the Company and, when the terms thereof have been
established and when the Securities have been executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
through an Agent as agent or to any Agent as principal pursuant to a
Terms Agreement, will constitute, valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, to public policy considerations and to
general equity principles;
(iii) To the best of the knowledge of such counsel without
independent inquiry, no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by this
Agreement and any applicable Terms Agreement in connection with the
issuance or sale of the Securities by the Company, except such as are
required and have been obtained and made under the Securities Act and
the Trust Indenture Act and such as may be required under state
securities laws (it being understood that such opinion may be limited
to such consents, approvals, authorizations, orders and filings which,
in such counsel's experience, are customarily applicable to
transactions of the type contemplated by this Agreement, any
applicable Terms Agreement and the Indenture);
(iv) The execution, delivery and performance of the Indenture,
this Agreement and any applicable Terms Agreement and the issuance and
sale of the Securities and compliance with the terms and provisions of
the Indenture, this Agreement and the terms of the Securities
described in the Prospectus will not result in a breach or violation
of any of the terms and provisions of,
-20-
or constitute a default under, any material statute, rule, regulation
or order of any governmental agency or body or any court having
jurisdiction over the Company, any Subsidiary incorporated in the
United States of America or any of their respective properties known
to such counsel, or the charter or by-laws of the Company, or any such
Subsidiary; and the Company has full power and authority to authorize,
issue and sell the Securities as contemplated by this Agreement and
any applicable Terms Agreement;
(v) The Registration Statement has become effective under the
Securities Act and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Securities, as of
its effective date and the Prospectus, as of the date of the
applicable Terms Agreement, and any amendment or supplement thereto,
as of its date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such
registration statement, as of its effective date, or any amendment
thereto, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the applicable Terms Agreement
or as of such Commencement Date, or any amendment or supplement
thereto, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel
need express no opinion as to the financial statements or other
financial and statistical data contained in the Registration Statement
or the Prospectus;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other
than the financial statements, schedules and other financial and
statistical data included therein, as to which such counsel need
express no opinion) and incorporated or deemed to be incorporated by
reference in the Prospectus complied as to form in all material
respects with the applicable requirements of the Exchange Act when so
filed.
-21-
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
-------- -------
Representatives on or prior to the Commencement Date or Time of Delivery,
as the case may be.
(c) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Xxxxxxx X. Xxxxxxx,
General Counsel and Secretary of Case Corporation, shall have furnished to
the relevant Agent or Agents his written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent or Agents, to the effect that:
(i) To the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of
the transactions contemplated by this Agreement and any applicable
Terms Agreement in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained and made
and are in full force and effect and such as may be required under
state securities laws;
(ii) The execution, delivery and performance of the Indenture
and the applicable Terms Agreement (including the provisions of this
Agreement) and the issuance and sale of the Securities and compliance
with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under (including, without limitation, any event or condition
which, with notice or lapse of time, or both, would constitute a
default under), any material agreement or instrument known to such
counsel to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of the
properties of the Company or any Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of
such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the registration
statement relating to the Securities, as of its effective date, or any
amendment thereto, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary
-22-
to make the statements therein not misleading or that the Prospectus,
as of the date of the Terms Agreement or as of the Commencement Date,
or any amendment or supplement thereto, as of its date or as of the
Commencement Date, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
-------- -------
Agents on or prior to the Commencement Date or Time of Delivery, as the
case may be.
(d) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Xxxxxx Xxxxxx & Xxxxxxx,
counsel to the Agents, or other counsel for the Agents reasonably
satisfactory to the Agents and the Company, shall have furnished to the
relevant Agent or Agents such opinion or opinions, dated the Commencement
Date or Time of Delivery, as the case may be, with respect to the validity
of the Indenture, the Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as such
Agent or Agents may reasonably request, and in each case such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(e) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the Company's independent
certified public accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus, as then amended or supplemented,
shall have furnished to the relevant Agent or Agents a letter, dated the
Commencement Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent or Agents, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information relating to the Company contained in or
incorporated by reference in the Registration Statement and the Prospectus,
as then amended or supplemented.
-23-
(f) On the Commencement Date and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent or
Agents shall have received a certificate or certificates signed by an
executive officer of the Company, dated the Commencement Date or Time of
Delivery, as the case may be, in which such officer, to the best of his
knowledge after reasonable investigation, shall state that (1) the
representations and warranties of the Company contained herein are true and
correct in all material respects on and as of the Commencement Date or Time
of Delivery, as the case may be, as if made on and as of such date, (2) the
Company has complied in all material respects with all agreements and
satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder or under the applicable Terms Agreement or
other agreement at or prior to the Commencement Date or Time of Delivery,
as the case may be, (3) no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and is in
effect as of the Commencement Date or Time of Delivery, as the case may be,
and, to such officer's knowledge, no proceedings for that purpose have been
instituted or are contemplated by the Commission and (4) subsequent to the
date of the most recent financial statements in the Prospectus, there has
not occurred any material adverse change in the financial condition or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Registration Statement or the
Prospectus or as described in such certificate and reasonably acceptable to
such Agent or Agents.
(g) On the Commencement Date and at each Time of Delivery, the
Company shall have furnished to the relevant Agent or Agents such further
relevant certificates, information and documents as such Agent or Agents
may reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person, if any, who controls such Agent within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not
-24-
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished to
the Company in writing by such Agent expressly for use therein; provided,
---------
however, that the foregoing indemnity with respect to any untrue statement in or
-------
omission from any preliminary prospectus or preliminary prospectus supplement
shall not inure to the benefit of any Agent (or to the benefit of any person
controlling such Agent) from whom the person asserting any such losses, claims,
damages or liabilities purchased the Securities if (i) the Company has complied
with Section 4(a), (c) and (d) of this Agreement, and (ii) a copy of the
Prospectus had not been sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person if required by the
Securities Act and the Prospectus would have cured the defect giving rise to
such loss, claim, damage or liability. For purposes of the proviso to the
immediately preceding sentence, the term "Prospectus" shall not be deemed to
----------
include the documents incorporated therein by reference, and no Agent shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in any preliminary prospectus or the Prospectus to any
person.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Agent, but only with
reference to information furnished to the Company in writing by such Agent
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and rep-
Exhibit 1B
-25-
resentation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Agents and such control persons of the
Agents shall be designated in writing by [Name of agent] or, if [Name of agent]
is not an Indemnified Person by the Agents that are Indemnified Parties and any
such separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. If at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, such
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding of the nature contemplated by Sections 7(a) or 7(b) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such Indemnifying Person of the aforesaid request, (ii) such
Indemnifying Person shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
Indemnifying Person shall not have reimbursed such Indemnified Person in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel, an Indemnifying Person
shall not be liable for any settlement of any proceeding of the nature
contemplated by Sections 7(a) or 7(b) effected without its consent if such
Indemnifying Person (i) reimburses such Indemnified Person in accordance with
such request to the extent it reasonably considers such request to be reasonable
and (ii) provides written notice to the Indemnified Person substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein in
connection with any offering of Securi-
-26-
ties, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person 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 the Securities 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 that 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
Securities shall be deemed to be in the same respective proportion as the net
proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total discounts and commissions received by each
Agent in respect thereof bear to the aggregate offering price of such
Securities. 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 on the one hand or by such Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if all Agents were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to above in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Agent be required to contribute any amount in
excess of the amount by which the total price at which the Securities referred
to in Section 7(d) that were sold by or through such Agent exceeds the amount of
any damages that 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) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligation of each Agent
to contribute pursuant to this subsection (d) is several (in the proportion to
the principal amount of the Securities the sale of which by or through such
Agent gave rise to such losses, claims, damages or liabilities
-27-
bears to the aggregate principal amount of the Securities the sale of which by
or through any Agent gave rise to such losses, claims, damages or liabilities)
and is not joint.
(e) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. TERMINATION.
(a) This Agreement may be terminated at any time (i) by the Company
with respect to any or all of the Agents or (ii) by any Agent with respect to
itself only, in each case upon the giving of written notice of such termination
to each other party hereto. Any Terms Agreement shall be subject to termination
in the absolute discretion of the Agent or Agents that are parties thereto on
the terms set forth or incorporated by reference therein. The termination of
this Agreement shall not require termination of any agreement by an Agent to
purchase Securities as principal (whether pursuant to a Terms Agreement or
otherwise) and the termination of such an agreement shall not require
termination of this Agreement. In the event this Agreement is terminated with
respect to any Agent, (x) this Agreement shall remain in full force and effect
with respect to any Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such termination and (z) in any event, the
provisions of the fourth paragraph of Section 2(a), Section 2(c), the last
sentence of Section 4(d) and Sections 4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall
survive; provided that if at the time of termination an offer to purchase
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Securities has not yet occurred, the provisions
of Sections 2(b), 2(d), 4(a) through 4(e), 4(h) through 4(k) and 6 shall also
survive. If any Terms Agreement is terminated, the provisions of the last
sentence of Section 4(d) and Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through
4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall have been incorporated by reference
in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by
an Agent or Agents because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement
or any Terms Agreement or if for any reason the Company shall be unable to
perform its obligations under this Agreement or any Terms Agreement or any
condition of any Agent's obligations cannot be fulfilled, the Company agrees to
reimburse each Agent or such Agents as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by such Agent
or Agents in connection with this Agreement or the offering of Securities.
-28-
9. POSITION OF THE AGENTS. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Securities.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such sale.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Securities
as principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
11. NOTICES. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents will be sent: in the case of [names and
addresses of Agents]. Communications to the Company will be sent to it at 000
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 (Telecopy: (000) 000-0000), Attention:
Treasurer, with a copy to Case Corporation, 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx
00000 (Telecopy: (000) 000-0000); Attention: Treasurer.
12. SUCCESSORS. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
their respective successors, the officers, directors and controlling persons
referred to in Section 7 and (to the extent expressly provided in Section 6) the
purchasers of Securities, and no other person shall acquire or have any right or
obligation under or by virtue of this Agreement or any Terms Agreement.
-29-
13. AMENDMENTS. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving effect
to the addition of any such firm as an Agent under this Agreement.
14. BUSINESS DAY. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City are required or authorized by law or executive order to close.
15. APPLICABLE LAW. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. COUNTERPARTS. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-30-
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
CASE CREDIT CORPORATION
By: _________________________
Name:
Title:
Accepted in New York, New York,
as of the date first above written:
[NAMES OF AGENTS]
Exhibit A
CASE CREDIT CORPORATION
MEDIUM TERM NOTES, SERIES C
TERMS AGREEMENT
___________, 199__
CASE CREDIT CORPORATION
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attention: Treasurer
Re: Distribution Agreement dated as of
[ ] (the "Distribution Agreement")
-----------------------------------------
The undersigned agrees to purchase your Medium-Term Notes, Series C having the
following terms:
Principal Amount:_______________________________________
Original Issue Date:____________________________________
Settlement Date, Time and Place:________________________
Maturity Date:__________________________________________
Purchase Price: __% of Principal Amount, plus accrued interest, if any,
from Settlement Date
Price to Public: __% of Principal Amount, plus accrued interest, if any,
from Settlement Date
Redemption Date (Dates): ________, commencing __________
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity:
Regular Record Dates:
(For Fixed Rate Notes)
Interest Rate:_____________________________________________________
Applicability of modified payment upon acceleration:
If yes, state issue price:
Amortization schedule:
(For Floating Rate Notes)
Initial Interest Rate:_____________________________________________
Interest Rate Basis (Commercial Paper, Prime, LIBOR, Treasury, CD, Federal
Funds, CMT, Other):______________________________________________
Index Maturity (30, 60, 90 days, 6 months, 1 year, other):_________
Interest Reset Period (daily, weekly, monthly, quarterly, semiannually,
annually):
Interest Payment Period (monthly, quarterly, semiannually, annually):
Spread: _______ basis points (+/-)
Spread Multiplier:______%
Maximum Interest Rate:______%
Minimum Interest Rate:______%
Initial Interest Reset Date:)______________________________________
2
Interest Reset Date:________________________________
Interest Determination Dates:_______________________
Interest Payment Dates:_____________________________
Calculation Agent:
Calculation Date:
Other terms of Securities:
Provisions relating to underwriter default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11,
12 and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by reference herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.
[Agent]
By:_____________________________
(Title)
Accepted:
CASE CREDIT CORPORATION
By:____________________________
(Title)
3
EXHIBIT B
CASE CREDIT CORPORATION
MEDIUM-TERM NOTES, SERIES C
ADMINISTRATIVE PROCEDURES
______________________
The Medium-Term Notes, Series C (the "Notes"), are to be offered on a
continuous basis by Case Credit Corporation (the "Company"). Each of [names of
agents] (each, an "Agent") has agreed to solicit offers to purchase the Notes in
registered form. The Notes are being sold pursuant to a Distribution Agreement
dated as of [ ] (the "Agreement") between the Company and the Agents.
In the Agreement, each Agent has agreed to use reasonable efforts to solicit
purchases of the Notes. Each Agent, as principal, may purchase Notes for its
own account and, if such Agent so elects, the Company and such Agent will enter
into a Terms Agreement, as contemplated by the Agreement. The Company may also
solicit offers to purchase and may sell Notes directly on its own behalf to
investors (other than broker-dealers).
The Notes will be issued under an Indenture dated as of October 1,
1997 (as supplemented or amended from time to time, the "Indenture") between the
Company and The Bank of New York, as trustee (the "Trustee"). The Trustee will
be the Registrar, Calculation Agent, Authenticating Agent and Paying Agent for
the Notes, and will perform the duties specified herein. Notes will bear
interest at a fixed rate (the "Fixed Rate Notes"), which may be zero in the case
of certain original issue discount notes (the "OID Notes"), or at floating rates
(the "Floating Rate Notes"). Fixed Rate Notes may pay a level amount in respect
of both interest and principal amortized over the life of the Notes ("Amortizing
Notes"). Each Note will be represented by either a Global Security (as defined
below) 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"). Except in limited circumstances, an
owner of a Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable solely in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture or the Notes shall be used herein
as therein defined.
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
Representation from the Company and the Trustee to DTC, dated as of the date
hereof (the "Letter of Representation"), and a Medium-Term Note Certificate
Agreement between the Trustee and DTC, dated as of August 19, 1987, 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 U.S. $200,000,000
principal amount of all such Notes that have the same
Maturity Date, redemption or repayment provisions,
Interest Payment Dates, Original Issue Date, original
issue discount provisions (if any), and, in the case of
Fixed Rate Notes, Interest Rate, modified payment upon
acceleration (if any), amortization schedule (if any)
or, in the case of Floating Rate Notes, Initial
Interest Rate, Interest Payment Dates, Interest Payment
Period, Calculation Agent, 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) and, in each
case, any other relevant terms (collectively, "Terms").
Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global
Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security
(or any portion thereof), its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security or
Securities (or if no
2
such payment or provision has been made, the original
issuance date of the predecessor Global Security),
regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes
may only be denominated and payable in U.S. dollars. No
Global Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any Certificated
Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for Securities representing the Book-
Entry Notes. The Company has obtained from the CUSIP
Service Bureau a written list of such series of
reserved CUSIP numbers and has delivered to the Trustee
and DTC the written list of 900 CUSIP numbers of such
series. The Trustee 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
Trustee has assigned to Global Securities. At any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, the Trustee
shall so advise the Company and, if it deems necessary,
the Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry
Notes. Upon obtaining such additional CUSIP numbers,
the Company shall deliver a list of such additional
CUSIP numbers to the Trustee and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the security
register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC with
respect to such Note (the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC and DTC will record
3
in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such beneficial owner in such Note in the
account of such Participants. The ownership interest
of such beneficial owner in such 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 accompanied 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
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent Book-Entry
Notes having the same Terms and for which interest has
been paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is
delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new
CUSIP number 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
exchange date and the 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 exchange date, the Trustee
will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a new
Interest Accrual Date, and the CUSIP numbers of the
exchanged
4
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled 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 issued to represent
each $200,000,000 principal amount of the exchanged
Global Security and an additional Global Security will
be authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date from nine
months to 30 years from its date of issue.
Notice of Redemption The Trustee will give notice to DTC prior to each
and Repayment Dates: Redemption Date or Repayment Date (as specified in the
Note), if any, at the time and in the manner set forth
in the Letter of Representation.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 and integral multiples thereof. 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 issued to represent each
$200,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
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 on each Book-Entry Note will accrue
from the Interest Accrual Date of the Global Security
representing such Note. Unless otherwise specified
therein, each payment of interest on a Book-Entry Note
will include interest accrued to but excluding the
Inter-
5
est Payment Date; provided that in the case of
--------
Floating Rate Notes with respect to which the Interest
Reset Period is daily or weekly, interest payable on
any Interest Payment Date (other than interest payable
on any date on which principal thereof is payable, and,
if the Note is a Book-Entry Gap Note (as defined
below), other than interest payable on the first
Interest Payment Date after the Original Issue Date
thereof) will include interest accrued through and
including the Record Date immediately preceding the
Interest Payment Date, except that at maturity or
earlier redemption or repayment, the interest payable
will include interest accrued to, but excluding, the
Maturity Date or the date of redemption or repayment,
as the case may be. Interest payable at the maturity
or upon redemption or repayment 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
appropriate weekly bond report published by Standard &
Poor's Corporation.
RECORD DATES. The Record Date with respect to any
Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest
Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Book-Entry Notes ,
other than Amortizing Notes, will be made semiannually
on April 1 and October 1 of each year, and at maturity
or upon any earlier redemption or repayment and
principal and interest payments on Book-Entry
Amortizing Notes will be made semiannually on April 1
and October 1 of each year or quarterly on January 1,
April 1, July 1 and October 1 of each year, and at
6
maturity (or any redemption or repayment date)
provided, however, that in the case of a Fixed Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date or on an Interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next succeeding Record Date.
If any Interest Payment Date for a Fixed Rate 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.
FLOATING RATE BOOK-ENTRY NOTES. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semiannually or annually. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest will be payable, in the case of Floating Rate
Book-Entry Notes with a daily, weekly or quarterly
Interest Reset Date, on the third Wednesday of March,
June, September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating
Rate Book-Entry Notes with a monthly Interest Reset
Date, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December,
as specified pursuant to Settlement Procedure "A"
below; in the case of Floating Rate Book-Entry Notes
with a semiannual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of
Floating Rate Book-Entry Notes with an annual Interest
Reset Date, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A" below;
provided however, that if an Interest Payment Date for
Floating Rate Book-Entry Notes would otherwise be a day
that is not a Market Day with respect to such Floating
Rate Book-Entry Notes, such Interest Payment Date will
be the next succeeding Market Day with respect to such
Floating Rate Book-Entry Notes, except in the case of a
LIBOR
7
Note if such Market Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Market Day; and provided,
further, that in the case of a Floating Rate Book-Entry
Note issued between a Record Date and the related
Interest Payment Date (a "Book-Entry Gap Note"), the
first interest payment will be made on the Interest
Payment Date following the next succeeding Record Date,
and in such case, notwithstanding the fact that an
Interest Reset Date may occur prior to such Interest
Payment Date, the Initial Interest Rate shall remain in
effect until the first Interest Reset Date occurring on
or subsequent to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. Prior to
the first Business Day of March, June, September and
December of each year, the Trustee will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect to
Book-Entry Notes during the six-month period beginning
on such first Business Day. Promptly after each date
upon which interest is determined for Floating Rate
Notes issued in book-entry form, the Calculation Agent
will notify the Company, the Trustee and Standard &
Poor's Corporation of the interest rates determined on
such dates.
Calculation of Interest: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of such Notes. Interest on
Floating Rate Book-Entry Notes will be calculated on
the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes
and CMT Rate Notes, interest will be calculated on the
basis of the actual number of days in the year.
8
Payments of Principal PAYMENTS OF INTEREST ONLY. Promptly before each Record
and Interest: Date, the Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount of
interest to be paid on each Global Security other than
an Amortizing Note on the following Interest Payment
Date (other than an Interest Payment Date coinciding
with maturity or any earlier redemption or repayment
date) and the total of such amounts. DTC will confirm
the amount payable on each such Global Security on such
Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. In
the case of Amortizing Notes, the Trustee will provide
separate written notice to the Company and to DTC prior
to each Interest Payment Date at the time and in the
manner set forth in the Letter of Representation. The
Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (and, in the case of an Amortizing Note, principal
and interest) (other than at maturity), and the Trustee
will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment."
PAYMENTS AT MATURITY OR UPON REDEMPTION OR REPAYMENT.
Prior to 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 other than an Amortizing Note maturing
either at maturity or on a redemption or repayment date
in the following month. 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
Date or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Trustee
will provide separate written notice to the Company and
to DTC prior to the Maturity Date and any redemption or
repayment date, as the case may be, at the times and in
the manner set forth in the Letter of Representation.
The Company will pay to the Trustee,
9
as the paying agent, the principal amount of such
Global Security, together with interest due at such
Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the times and
in the manner set forth below under "Manner of
Payment."
PAYMENTS NOT ON BUSINESS DAYS. If any Interest Payment
Date or the Maturity Date or redemption or repayment
date of a Global Security representing Fixed Rate 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 Interest Payment Date,
Maturity Date or redemption or repayment date, as the
case may be. If any Interest Payment Date or the
Maturity Date or redemption or repayment date of a
Global Security representing a Floating Rate Book-Entry
Note would otherwise fall on a day that is not a Market
Day, the payment due on such day shall be made on the
next succeeding day that is a Market Day with respect
to such Notes with the same effect as if such Market
Day were the Interest Payment Date, Maturity Date or
date of redemption or repayment, as the case may be,
except that, in the case of Book-Entry LIBOR Notes, if
such Market Day is in the next succeeding calendar
month, such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the immediately
preceding day that is a Market Day with respect to such
Book-Entry LIBOR Notes. Promptly after payment to DTC
of the principal and interest due on the Maturity Date
or redemption or repayment date of such Global
Security, the Trustee will cancel such Global Security
in accordance with the terms of the Indenture and
deliver it to the Company with a certificate of
cancellation. On the first Business Day of each month,
the Trustee will deliver to the Company a written
statement indicating the total principal amount of
outstanding Book-Entry Notes as of the immediately
preceding Business Day.
10
MANNER OF PAYMENT. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at maturity or upon redemption or
repayment shall be paid by the Company to the Trustee
in funds available for immediate use by the Trustee as
of 9:30 a.m. (New York City time) on such date. The
Company will make such payment on such Global
Securities by wire transfer to the Trustee or by
instructing the Trustee to withdraw funds from an
account maintained by the Company at the Trustee. The
Company will confirm such instructions in writing to
the Trustee. Prior to 10 a.m. (New York City time) on
each Maturity Date or redemption or repayment date or,
if either such date is not a Business Day, as soon as
possible thereafter, following receipt of such funds
from the Company the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in a
form previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified
by DTC, in funds available for immediate use by DTC,
each payment of principal (together with interest
thereon) due on Global Securities on any Maturity Date
or redemption or repayment date. On each Interest
Payment Date or, if any such date is not a Business
Day, as soon as possible thereafter, interest payments
and, in the case of Amortizing Notes, interest and
principal payments shall be made to DTC in same day
funds in accordance with existing arrangements between
the Trustee and DTC. Thereafter on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither the
Company nor the Trustee shall have any responsibility
or liability for the payment by DTC to such
Participants of the principal of and interest on the
Book-Entry Notes.
11
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 or forwarding payments
directly to the beneficial owner of such Note.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement reflecting the terms
of such Note and will arrange to file such Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
reasonably request by the close of business on the
following Business Day. The relevant Agent will cause
such Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing Supplement is prepared,
the Agent receiving such Pricing Supplement will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the Prospectuses
to which they are attached (other than those retained
for files), will be destroyed.
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 Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following such acceptance 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.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent
12
shall be as follows (unless otherwise specified
pursuant to a Terms Agreement, as defined in the
Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Book-Entry Note and 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, and whether such Note is an
Amortizing Note and, if so, the Amortization
Schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s),
including the Initial Interest Payment Date,
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. Agent's commission, if any, determined as
provided in the Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield
to maturity, the initial accrual pe-
13
riod OID and the applicability of Modified
Payment upon Acceleration (and, if so, the
Issue Price).
10. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above. The Trustee will then assign a CUSIP number
to the Global Security representing such Note and
will notify the Trustee and the Agent of such CUSIP
number by telephone or electronic transmission
(confirmed in writing) 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, the
relevant Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A."
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which in
the case of Floating Rate Notes which reset
daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Record
Date as defined in the Note) and, if known, the
amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
14
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at
such time) and whether such Note is an
Amortizing Note (by an appropriate notation in
the comments field of DTC's Participant
Terminal System).
5. The DTC participant number of the institution
through which the Company will hold the Book-
Entry Note.
D. The Trustee will complete and authenticate the
Global Security representing such Note in accordance
with the terms of the written order of the Company
then in effect.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(1) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission, if any.
The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (a) the Global Security representing such Book-
Entry Note has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant
to the Medium-Term Note Certificate Agreement
between the Trustee and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
15
to the participant accounts of the Participants with
respect to such Note and (ii) to debit the
settlement account of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. The Trustee, upon confirming receipt of such funds,
will credit to the U.S. dollar account of the
Company maintained at a bank in New York City,
notified to the Trustee from time to time, in funds
available for immediate use in the amount
transferred to the Trustee, in accordance with
Settlement Procedure "F."
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting to
the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of
Notes Outstanding as of that date under the
Indenture and setting forth a brief description of
any sales of which the Company has advised the
Trustee but which have not yet been settled.
Settlement: For sales by the Company of Book-Entry Notes to or
through an Agent unless otherwise specified pursuant to
a Terms Agreement for settlement on the first Business
Day after the sale date, Settlement Procedures "A"
through "J" set forth above shall be completed as
16
soon as possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A," "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 a.m., 12 noon and 2:00 p.m.,
respectively, on the first Business Day after the sale
date. 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 noon
and 2:00 p.m., respectively, on the second Business Day
before the settlement date. Settlement Procedure "H"
is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date. If settlement of a
Book-Entry Note is rescheduled or cancelled, the
Trustee, after receiving notice from the Company or the
Agent, 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 Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F," the Trustee may deliver to
DTC,
17
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account,
provided that the Trustee's participant account
contains a principal amount of the Global Security
representing such Note that is at least equal to the
principal amount to be debited. If a withdrawal message
is processed with respect to all the Book Entry Notes
represented by a Global Security, the Trustee will mark
such Global Security "cancelled," make appropriate
entries in the Trustee's records and send such
cancelled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled 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
Global Security for two Global Securities, one of which
shall represent such Book-Entry Note or Notes and shall
be cancelled immediately after issuance and the other
of which shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
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 relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F"
and "G," respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
18
any action 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 Procedures
"D" and "F," for the authentication and issuance of
a Global Security representing the Book-Entry Notes
to be represented by such Global Security and will
make appropriate entries in its records.
Posting Rates by Company: The Company and the Agents will from time to time
post the rates of interest per annum to be borne by
and the maturity of Securities that may be sold as
a result of the solicitation of offers by an Agent.
The Company may establish a fixed set of interest
rates and maturities for an offering period
("posting"). If the Company decides to change
already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the
new posted rates have been established with the
Agent.
Trustee Not To Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payments to the Company, the
Agents, DTC or any holders of Notes, it being
understood by all parties that payments made by the
Trustee to the Company, the Agents, DTC or any
holders of Notes shall be made only to the extent
that funds are provided to the Trustee for such
purpose.
19
PART 11: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or any portion thereof) issued subsequently upon
exchange of a Certificated Note, or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the principal corporate trust office of
the Trustee. Certificated Notes will be exchangeable
for other Certificated Notes having identical terms
but different authorized denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date from
nine months to 30 years from its date of issue.
Currency: The currency denomination with respect to any
Certificated Note and the currency of payment of
interest and principal with respect to any such
Certificated Note shall be U.S. dollars.
Denominations: Unless otherwise provided in a Prospectus Supplement,
the denomination of any Certificated Note will be a
minimum of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000.
20
GENERAL. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest
periods. Unless otherwise specified therein, each
payment of interest on a Certificated Note will include
interest accrued to but excluding the Interest Payment
Date; provided that in the case of Floating Rate Notes
with respect to which the Interest Reset Period is
daily or weekly, interest payable on any Interest
Payment Date (other than interest payable on any date
on which principal thereof is payable, and, if the Note
is a Certificated Gap Note (as defined below), other
than interest payable on the first Interest Payment
Date after the Original Issue Date thereof) will
include interest accrued through and including the
Record Date immediately preceding the Interest Payment
Date, except that at maturity or earlier redemption or
repayment, the interest payable will include interest
accrued to, but excluding, the Maturity Date or the
date of redemption or repayment, as the case may be.
RECORD DATES. The Record Date with respect to any
Interest Payment Date in respect of a Certificated Note
shall be the date fifteen calendar days immediately
preceding such Interest Payment Date.
FIXED RATE CERTIFICATED NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes,
other than Amortizing Notes, will be made semiannually
April 1 and October 1 of each year and at maturity or
upon any earlier redemption or repayment and principal
and interest payments on Certificated Amortizing Notes
will be made semiannually on April 1 and October 1 of
each year or quarterly on January 1, April 1, July 1
and October 1 of each year, and at maturity (or any
redemption or repayment date); provided, however that
in the case of a Fixed Rate Certificated Note issued
between a Record Date and an Inter-
21
est Payment Date or on an Interest Payment Date, the
first interest payment will be made on the Interest
Payment Date following the next succeeding Record Date.
If any Interest Payment Date for a Fixed Rate
Certificated 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.
FLOATING RATE CERTIFICATED NOTES. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semiannually or annually. Unless
otherwise specified pursuant to Settlement Procedure
"A" below, interest will be payable, in the case of
Floating Rate Certificated Notes with a daily, weekly
or quarterly Interest Reset Date, on the third
Wednesday of March, June, September and December, as
specified pursuant to Settlement Procedure "A" below;
in the case of Floating Rate Certificated Notes with a
monthly Interest Reset Date, on the third Wednesday of
each month or on the third Wednesday of March, June,
September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Floating
Rate Certificated Notes with a semiannual Interest
Reset Date, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below;
and in the case of Floating Rate Certificated Notes
with an annual Interest Reset Date, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below; provided however, that if an
Interest Payment Date for Floating Rate Certificated
Notes would otherwise be a day that is not a Market Day
with respect to such Floating Rate Certificated Notes,
such Interest Payment Date will be the next succeeding
Market Day with respect to such Floating Rate
Certificated Notes, except in the case of a LIBOR Note
if such Market Day is in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding Market Day; and provided,
22
further, that in the case of a Floating Rate
Certificated Note issued between a Record Date and
the related Interest Payment Date (a "Certificated
Gap Note"), the first interest payment will be made
on the Interest Payment Date following the next
succeeding Record Date, and in such case,
notwithstanding the fact that an Interest Reset Date
may occur prior to such Interest Payment Date, the
Initial Interest Rate shall remain in effect until
the first Interest Reset Date occurring on or
subsequent to such Interest Payment Date.
NOTICE OF INTEREST PAYMENT AND RECORD DATES. Prior to
the first Business Day of March, June, September and
December of each year, the Trustee will deliver to
the Company a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Certificated Notes during the six-month period
beginning on such first Business Day. Promptly after
each date upon which interest is determined for
Floating Rate Notes issued in certificated form, the
Calculation Agent will notify the Company and the
Trustee of the interest rates determined on such
dates.
Calculation of Interest: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of such Notes. Interest on
Floating Rate Certificated Notes will be calculated
on the basis of actual days elapsed and a year of 360
days, except that, in the case of Treasury Rate Notes
and CMT Rate Notes, interest will be calculated on
the basis of the actual number of days in the year.
Payments of Principal The Company will pay the Trustee, as Paying Agent,
and Interest: the principal amount of each Certificated Note (other
than a Certificated Amortizing Note), together with
interest due thereon, at its Maturity Date or upon
re-
23
demption or repayment of such note in funds available
for immediate use by the Trustee. In the case of a
Certificated Amortizing Note, the Company will pay the
Trustee, as Paying Agent, the principal amount due on
such Note on such date, together with interest due
thereon, at its Maturity Date or upon redemption or
repayment of such Note on such date, together with
interest due thereon, at its Maturity Date or upon
redemption or repayment of such Note in funds available
for immediate use by the Trustee. The Trustee will pay
such amount to the holder of such Note at its Maturity
Date or upon redemption or repayment of such Note upon
presentation and surrender of such Note to the Trustee.
Such payment, together with payment of interest due at
maturity or upon redemption or repayment, will be made
in funds available for immediate use by the holder of
such Note. Promptly after such presentation and
surrender, the Trustee will cancel such Certificated
Note in accordance with the terms of the Indenture and
deliver it to the Company with a certificate of
cancellation. Unless otherwise specified in the
applicable Pricing Supplement, all interest payments on
a Certificated Note or, in the case of a Certificated
Amortizing Note, payments of principal and interest
(other than interest (or interest and principal) due at
maturity or upon redemption or repayment) will be made
by check drawn on the Trustee (or another person
appointed by the Trustee) and mailed by the Trustee to
the person entitled thereto as provided in such Note
and the Indenture; provided, however, that the holder
of $1,000,000 or more of Notes having the same Interest
Payment Date will be entitled to receive payment by
wire transfer of immediately available funds and the
holder of such Notes will provide the Trustee with
appropriate and timely wire transfer instructions.
Promptly after each Record Date, the Trustee will
deliver to the Company a written notice specifying the
amount of interest to be paid on each Certificated Note
24
other than an Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption or
repayment date) and the total of such amounts. In the
case of Amortizing Notes, the Trustee will provide
separate written notice to the Company specifying the
amount of interest and principal to be paid on each
Amortizing Note on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
maturity or any earlier redemption or repayment date)
and the total of such amounts. Interest at maturity or
upon redemption or repayment will be payable to the
person to whom the payment of principal is payable. On
or about the first Business Day of each month, the
Trustee will deliver to the Company a written list of
principal and interest, to the extent ascertainable, to
be paid on each Certificated Note including Amortizing
Notes maturing or to be redeemed or repaid in the
following month, if any. The Trustee will be
responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law.
If any Interest Payment Date or the Maturity Date or
redemption or repayment date of a Fixed Rate
Certificated 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, Maturity Date or redemption or repayment
date, as the case may be. If any Interest Payment Date
or the Maturity Date or redemption or repayment date of
a Floating Rate Certificated Note would otherwise fall
on a day that is not a Market Day with respect to such
Note, the payment due on such day shall be made on the
next succeeding day that is a Market Day with respect
to such Note with the same effect as if such Market Day
were the stated Interest Payment Date, Maturity Date or
date of redemption or repayment, as the case may be,
except that, in the case of Certificated
25
LIBOR Notes, if such Market Day is in the next
succeeding calendar month, such Interest Payment Date,
Maturity Date or redemption or repayment date shall be
the immediately preceding day that is a Market Day with
respect to such Certificated LIBOR Notes.
Preparation of If any order to purchase a Certificated Note is
Pricing Supplement: accepted by or on behalf of the Company, the Company
will prepare a Pricing Supplement reflecting the terms
of such Note and will arrange to file the Pricing
Supplement with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
reasonably request by the close of business on the
following Business Day. The relevant Agent will cause
such Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing Supplement is prepared,
the Agent receiving such Pricing Supplement will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the Prospectuses
to which they are attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for an authenticated Certificated Note
delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
following such acceptance 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.
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Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent shall
be as follows (unless otherwise specified pursuant to a
Terms Agreement):
A. The relevant Agent will advise the Company by
facsimile transmission or other acceptable means
that such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Maturity Date.
5. In the case of a Fixed Rate Certificated Note,
the Interest Rate, and whether such Note is an
Amortizing Note and, if so, the Amortization
Schedule or, in the case of a Floating Rate
Certificated Note, the Initial Interest Rate
(if known at such time), Interest Payment
Date(s), Interest Payment Period, Calculation
Agent, Base Rate, Index Maturity, Interest
Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any), and Maximum Interest Rate (if any).
6. Redemption or repayment provisions, if any.
7. Settlement date and time.
8. Price.
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9. Agent's commission, if any, determined as
provided in the Agreement.
10. Denominations.
11. Net proceeds to the Company.
12. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield
to maturity, the initial accrual period OID and
the applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
13. Any other applicable Terms.
B. The Company will advise the Trustee by facsimile
transmission or other acceptable means of the
information set forth in Settlement Procedure "A"
above.
C. The Company will have delivered to the Trustee a
preprinted four-ply packet for such Note, which
packet will contain the following documents in forms
that have been approved by the Company, the relevant
Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such
Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and returning
it to the Trustee. Such delivery will be made only
against such acknowl-
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edgment of receipt and evidence that instructions
have been given by such Agent for payment to the
account of the Company maintained at the Trustee,
New York, New York in funds available for immediate
use, of an amount equal to the price of such Note
less such Agent's commission, if any. In the event
that the instructions given by such Agent for
payment to the account of the Company are revoked,
the Company will as promptly as possible wire
transfer to the account of such Agent an amount of
immediately available funds equal to the amount of
such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Periodically, the Trustee will
also send to the Company a statement setting forth
the principal amount of the Notes outstanding as of
that date under the Indenture and setting forth a
brief description of any sales of which the Company
has advised the Trustee but which have not yet been
settled.
Settlement Procedures For sales by the Company of Certificated Notes to or
Timetables: through an Agent (unless otherwise specified pursuant
to a Terms Agreement), Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 2:00 p.m. on day before settlement date
B 3:00 p.m. on day before settlement date
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C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
F 5:00 p.m. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant Agent
will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of
such notice, the Company will immediately wire transfer
to the account of such Agent an amount equal to the
amount previously credited thereto in respect of such
Note. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Agreement, then the
Company will reimburse such Agent or the Trustee, as
appropriate, on an equitable basis for its loss of the
use of the funds during the period when they were
credited to the account of the Company (such
reimbursement for loss of the use of such funds to be
based on the federal funds effective rate then in
effect). Immediately upon receipt of the Certificated
Note in respect of which such failure occurred, the
Trustee will mark such Note "cancelled," make
appropriate entries in the Trustee's records and send
such Note to the Company.
Posting Rates The Company and the Agents will from time to time post
by Company: the rates of interest per annum to be borne by and the
maturity of Securities that may be sold as a result of
the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company
decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established
with the Agent.
Trustee Not to Nothing herein shall be deemed to require the Trustee
30
Risk Funds: to risk or expend its own funds in connection with any
payments to the Company, the Agents or any holders of
Notes, it being understood by all parties that payments
made by the Trustee to the Company, the Agents or any
holders of Notes shall be made only to the extent that
funds are provided to the Trustee for such purpose.
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