EXHIBIT 1.1
BENEFICIAL CORPORATION
Medium-Term Notes, Series I
Due Nine Months or More From
Date of Issue
DISTRIBUTION AGREEMENT
July 25, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
North Tower
World Financial Center
New York, New York 10281-1310
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0060
UBS SECURITIES LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Beneficial Corporation (the "Company") confirms
its agreement with each of you (you are hereinafter
sometimes referred to individually as an "Agent" and
collectively as the "Agents") with respect to the issue and
sale by the Company of up to $3,000,000,000 aggregate
principal amount, or aggregate initial issue price, of its
Medium-Term Notes, Series I due nine months or more from
date of issue (the "Notes"), or the equivalent thereof if
any of the Notes is denominated in a foreign currency or
currency unit. The Notes are to be issued pursuant to the
Indenture, dated as of July 1, 1997 (the "Indenture"),
between the Company and The Chase Manhattan Bank, as Trustee
(the "Trustee").
Subject to the terms and conditions stated herein,
the Company hereby (i) appoints each of you as agents of the
Company for the purpose of soliciting purchases of the Notes
from the Company by others and (ii) agrees that whenever the
Company determines to sell Notes directly to any Agent as
principal, it will enter into a separate agreement with such
principal relating to such sale in accordance with the
provisions of Section 2(b) hereof (each a "Terms
Agreement"), which Terms Agreement may be either oral or in
writing in substantially the form of Exhibit A hereto.
1. Representations and Warranties of the
Company. The Company represents and warrants to each of you
that:
(a) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933, as amended
(the "Securities Act"), and has carefully prepared and filed
with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3
(Registration No. 333-30543) and Amendment No. 1 thereto (as
so amended, the "Registration Statement"), relating to
$3,000,000,000 principal amount of debt securities (the
"Debt Securities"), to be offered from time to time in
accordance with Rule 415 of the rules and regulations of the
Commission under the Securities Act (the "Regulations"), of
which the entire $3,000,000,000 principal amount constitute
the Notes. The Registration Statement became effective as
of 5:30 p.m., New York time, on July 10, 1997. The
Registration Statement, including the exhibits thereto and
all documents incorporated therein by reference pursuant to
Item 12 of Form S-3 (the "Incorporated Documents"), are
hereinafter referred to collectively as the "Registration
Statement", except that if the Registration Statement is
amended by the filing with the Commission of a post-
effective amendment thereto or additional Incorporated
Documents, the term "Registration Statement" shall mean
collectively the Registration Statement, including the
Incorporated Documents, as so amended from and after the
effective date of such post-effective amendment or the
filing of such additional Incorporated Documents. The
prospectus dated July 25, 1997, including the Incorporated
Documents, which constitutes a part of the Registration
Statement, as amended at the time the Registration Statement
became effective or any post-effective amendment thereto
becomes effective, together with the prospectus supplement
dated July 25, 1997 (the "Prospectus Supplement"), relating
to the offering of the Notes, are hereinafter referred to
collectively as the "Prospectus," except that if the
Prospectus is thereafter amended or supplemented pursuant to
Rule 424(b) of the Regulations or additional Incorporated
Documents are filed, the term "Prospectus" shall mean the
prospectus, including the Incorporated Documents, as so
amended or supplemented pursuant to Rule 424(b) or by the
filing of additional Incorporated Documents, from and after
the date such amended prospectus or supplement is first used
or filed with the Commission or the date such additional
Incorporated Documents are so filed, as the case may be.
The date on which the Registration Statement originally
became effective is hereinafter referred to as the
"Effective Date". The Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(b) On the Effective Date and the date on which
the Prospectus Supplement was filed with the Commission
pursuant to Rules 424(b)(2) and/or 424(b)(3), and when any
post-effective amendment to the Registration Statement
becomes effective or any amendment or supplement to the
Prospectus is first used or filed with the Commission or any
additional Incorporated Documents are filed, the
Registration Statement and the Prospectus, respectively,
complied and will comply with the provisions of the
Securities Act and the Regulations, the Incorporated
Documents complied and will comply with the provisions of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder
and the Registration Statement and the Prospectus did not
and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and from the date hereof until completion of the
public offering of the Notes, the Prospectus will not
contain any untrue statement of a material fact and will not
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing
representations and warranties do not apply to (1) that part
of the Registration Statement that shall constitute the
Statements of Eligibility under the Trust Indenture Act
(Form T-1) of the Trustee or the other trustee for the Debt
Securities registered under the Registration Statement,
except statements or omissions in such Statements made in
reliance upon and in conformity with information furnished
in writing to the Trustee or such other trustee by or on
behalf of the Company for use therein, or (2) statements or
omissions in the Registration Statement or Prospectus made
in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
of you expressly for use therein.
(c) The accountants who certified the financial
statements included in the Registration Statement are
independent public accountants as required by the Securities
Act and the Regulations.
2. Solicitations by the Agents of Offers to
Purchase; Purchases as Principal.
(a) 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 best efforts to solicit and receive offers to
purchase the Notes upon the terms and conditions set forth
in the Prospectus. The Company may solicit offers to
purchase Notes directly on its own behalf or through any
subsidiary and may also solicit offers to purchase Notes
through other agents as may be designated by the Company
from time to time.
The Company reserves the right, in its sole
discretion, to suspend solicitation of purchases of the
Notes by you as Agents commencing at any time for any period
of time or permanently. Upon receipt of instructions from
the Company, you will forthwith suspend solicitation of
purchases until such time as the Company has advised you
that solicitation may be resumed.
Unless otherwise agreed between the Company and
the applicable Agent at the time of sale with respect to a
particular agency transaction relating to Notes with a term
from nine months to 30 years, the Company agrees to pay each
Agent a commission equal to the following percentage of the
principal amount of each Note sold in an agency transaction
solicited by such Agent:
Term Commission Rate
From 9 months to 18 months ............... .125%
More than 18 months to 2 years ........... .200%
More than 2 years to 3 years ............. .250%
More than 3 years to 4 years ............. .350%
More than 4 years to 5 years ............. .400%
More than 5 years to 7 years ............. .475%
More than 7 years to 8 years ............. .525%
More than 8 years to 10 years ............ .550%
More than 10 years to less than 15 years.. .575%
From 15 years to less than 20 years ...... .650%
From 20 years to 30 years ................ .700%
The commission rate for Notes with a term of more than 30
years shall be negotiated at the time of sale. The
commission amount shall be deducted in each case by the
Agent from the amount remitted to the Trustee in payment for
such Note.
As Agents, you are authorized to solicit orders
for the Notes only in denominations of $25,000 and any
larger denomination that is an integral multiple of $1,000
(unless otherwise approved by the Company) or, in the case
of Notes denominated other than in U.S. dollars, in
denominations approved by the Company and on terms
previously agreed to by the Company. Each Agent shall
communicate to the Company, orally or in writing, each offer
to purchase Notes received by it, other than those it has
rejected. The Company shall have the sole right to accept
offers to purchase the Notes and may reject any such offer
in whole or in part. An Agent shall have the right, in its
discretion reasonably exercised, to reject any offer to
purchase the Notes in whole or in part, and any such
rejection shall not be deemed a breach of its agreement
contained herein.
(b) Each sale of Notes to any Agent as principal
shall be made in accordance with the terms of this Agreement
and a Terms Agreement that will provide for the sale of such
Notes to, and the purchase and reoffering thereof by, such
Agent. Such Agent may utilize dealers or selling groups in
connection with the resale of Notes purchased by such Agent
as principal. The Terms Agreement relating to the sale of
Notes to an Agent as principal may also specify certain
provisions relating to the reoffering of such Notes by such
Agent. The commitment to purchase Notes as principal
pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased
by any Agent pursuant thereto, the interest rate thereon or
the method of determining such interest rate, the maturity
date thereof, the price to be paid to the Company for such
Notes, the initial public offering price at which the Notes
are proposed to be reoffered, any provisions relating to the
rights of, and default by, underwriters acting together with
such Agent in the reoffering of the Notes, the time and
place of delivery of and payment for such Notes and such
other terms appropriate to the Notes to be purchased
pursuant thereto. The Company also may sell Notes to other
persons as principals, as may be designated by the Company
from time to time.
(c) Administrative procedures respecting the sale
of Notes are specified in the Medium-Term Note
Administrative Procedures attached hereto as Exhibit B (the
"Procedures"). You and the Company agree to perform the
respective duties and obligations specifically provided to
be performed herein and in the Procedures as amended from
time to time. The Procedures may only be amended by written
agreement of you and the Company.
(d) The procedural details relating to the issue
and delivery of Notes sold to an Agent as principal pursuant
to a Terms Agreement and payment therefor shall be, unless
otherwise agreed, as set forth in the Procedures. For each
sale of Notes to an Agent as principal that is not made
pursuant to a Terms Agreement, such Agent will purchase such
Notes at a price that, unless otherwise agreed and specified
in the applicable Pricing Supplement (as defined herein),
shall be equal to 100% of the principal amount thereof less
a discount equal to the commission applicable to a sale of
such Notes of identical maturity in an agency transaction as
provided in Section 2(a) hereof and in accordance with the
table set forth therein.
Each time and date of delivery of and payment for
Notes to be purchased by an Agent as principal, whether set
forth in a Terms Agreement or in accordance with the
Procedures, is referred to herein as a "Time of Delivery".
(e) If any of the Notes are denominated in a
foreign currency or currency unit, a Foreign Currency
Amendment in the form attached hereto as Exhibit C will be
entered into between the Company and the participating
Agents, as the case may be.
3. Covenants of the Company. The Company
covenants and agrees with each of you as follows:
(a) As soon as the Company is advised thereof,
the Company will advise you and will confirm such advice in
writing (i) of the effectiveness of any post-effective
amendment to the Registration Statement; (ii) of the filing
with the Commission of any amendment or supplement to the
Prospectus or any document to be filed pursuant to the
Exchange Act that will be incorporated by reference in the
Prospectus; (iii) of the issuance by the Commission of any
order suspending the effectiveness of the Registration
Statement or qualification of the Indenture or prohibiting
the sale of the Notes, or of the initiation or threatening
of any proceedings for any such purpose; and (iv) of the
receipt by the Company or any representative or attorney of
the Company of any communication from the Commission
relating to the Registration Statement or the Prospectus.
(b) Before amending or supplementing the
Registration Statement or the Prospectus, including the
filing of documents deemed to be Incorporated Documents, the
Company will furnish you with a copy of each proposed
amendment or supplement or Incorporated Document (other than
an amendment or supplement providing solely for a change in
the interest rate of the Notes or the method of determining
such interest rate or a change in the principal amount of
notes remaining to be sold or similar changes).
(c) The Company will furnish to each of you,
without charge, as many conformed copies of the Registration
Statement (including exhibits other than exhibits
incorporated by reference) and as many executed and
conformed copies of any post-effective amendments thereto as
you may reasonably request.
(d) The Company will furnish to each of you, from
time to time during the period when the Prospectus is
required to be delivered under the Securities Act, such
number of copies of the Prospectus, and of any then current
supplements thereto, including the Incorporated Documents,
as you may reasonably request.
(e) For the period during which the Prospectus is
required to be delivered under the Securities Act, if any
event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in
light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary at any
such time to amend or supplement the Registration Statement
or Prospectus in order to comply with the requirements of
the Securities Act or the Regulations, immediate notice
shall be given, and confirmed in writing, to you by the
Company to cease the solicitation of offers to purchase the
Notes in your capacity as agents of the Company and to cease
sales of any Notes you may then own as principal and, except
as otherwise provided in any relevant Terms Agreement, the
Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents
pursuant to the Securities Act or the Exchange Act, as may
be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply
with such requirements; provided, however, that if at any
such time the Company shall have instructed you to suspend
solicitation of offers to purchase the Notes in your
capacity as agents of the Company and you do not then hold
any Notes acquired by you as principal, the Company shall
not be obligated to so amend or supplement the Registration
Statement or Prospectus until such time as it shall
determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms
Agreement with any Agent. The Company will advise you
promptly when you may resume the solicitation of offers to
purchase the Notes or sales of Notes you may then own as
principal.
(f) The Company will endeavor to qualify, and to
cooperate with you in an endeavor to qualify, the Notes for
offer and sale under the securities or "blue sky" laws of
such jurisdictions of the United States as you may request,
and will maintain such qualifications in effect in such
jurisdictions for as long as may be required for the
distribution of the Notes (except that the Company need not
qualify the Notes or maintain the qualification of the Notes
for offer and sale in any jurisdiction where such
qualification or continued qualification would, in the
opinion of the Company, be unduly burdensome to the
Company).
(g) Simultaneously with the release to the
general public of interim financial information with respect
to each of the first three quarters of any fiscal year, the
Company shall furnish such information to you, confirmed in
writing, and you and the Company shall then suspend
solicitation of offers to purchase the Notes for 24 hours,
and the Company shall, if necessary in order to comply with
the covenant set forth in paragraph (e) of this Section 3 or
if so requested by you, cause the Prospectus to be amended
or supplemented to set forth or incorporate by reference
capsule financial information with respect to the results of
operations of the Company for the period between the end of
the preceding fiscal year and the end of such quarter and
corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and
explanations as shall be necessary for an understanding of
such amounts or as shall be required by the Securities Act
or the Regulations; provided, however, that if at any such
time the Company shall have instructed you to suspend
solicitation of offers to purchase the Notes in your
capacity as agents of the Company and you do not then hold
any Notes acquired by you as principal, the Company shall
not be obligated to furnish such information to you or to so
amend or supplement the Prospectus until such time as it
shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new
Terms Agreement with any Agent.
(h) Simultaneously with the release to the
general public of financial information included in or
derived from the audited financial statements of the Company
for the preceding fiscal year, the Company shall furnish
such information to you, confirmed in writing, and you and
the Company shall then suspend solicitation of offers to
purchase the Notes for 24 hours, and the Company shall, if
necessary in order to comply with the covenant set forth in
paragraph (e) of this Section 3 or if so requested by you,
cause the Registration Statement and the Prospectus to be
amended or supplemented, initially to set forth capsule
financial information with respect to the results of
operations of the Company for such year and corresponding
information for the prior fiscal year, as well as such other
information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the
Securities Act or the Regulations, and, on or before the
date that the Company's Annual Report containing the
information required by Rule 14a-3 under the Exchange Act is
mailed to stockholders or its Annual Report on Form 10-K is
filed with the Commission, whichever is earlier, the Company
shall cause the Registration Statement and the Prospectus to
be amended to set forth or incorporate such audited
financial statements and the report or reports of
independent public accountants with respect thereto, and the
consent or consents of such independent public accountants
to such inclusion or incorporation by reference, as well as
such other information and explanations as shall be
necessary for an understanding of such financial statements
or as shall be required by the Securities Act or the
Regulations; provided, however, that if at any such time the
Company shall have instructed you to suspend solicitation of
offers to purchase the Notes in your capacity as agents of
the Company and you do not then hold any Notes acquired by
you as principal, the Company shall not be obligated to so
amend or supplement the Prospectus until such time as it
shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new
Terms Agreement with any Agent.
(i) The Company will make generally available to
its security holders (through the operation of Rule 158
under the Securities Act or otherwise) as soon as
practicable earnings statements covering a twelve-month
period beginning after the date hereof that shall satisfy
the provisions of Section 11(a) of the Securities Act.
(j) So long as any of the Notes shall remain
outstanding the Company will supply to each of you, at the
earliest time the Company makes the same available to
others, copies of such financial statements and other
periodic and special reports as the Company may from time to
time furnish generally to holders of any class of its
securities registered under Section 12 of the Exchange Act
and will furnish each of you with a copy of each Annual
Report on Form 10-K that the Company shall be required to
file with the Commission.
(k) The Company, during the period when the
Prospectus is required to be delivered under the Securities
Act, will file timely all documents required to be filed
with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(l) The Company will comply with the terms and
conditions set forth in any Terms Agreement relating to the
purchase of Notes by an Agent as principal, including,
without limitation, any restriction on the Company's ability
to offer or sell, or enter into any agreement to sell, debt
securities issued by it of the type and to the extent
specified therein.
4. Payment of Expenses. The Company will pay,
or reimburse if paid by any of you, all reasonable costs and
expenses incident to the offering and sale of the Notes
pursuant to this Agreement, including, without limiting the
generality of the foregoing, all costs and expenses incident
to (i) the preparation and filing of the Registration
Statement and all amendments and post-effective amendments
thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel,
(iv) the qualification of the Notes under securities laws in
accordance with the provisions of Section 3(f) and the
original preparation and annual update of a survey as to the
legality of the Notes as an investment for certain types of
prospective buyers thereof, including printing and filing
fees and the fees and disbursements of counsel to the Agents
in connection therewith, (v) the printing and delivery to
you of copies of the Registration Statement and all
amendments and post-effective amendments thereto, the
Prospectus and any amendments or supplements thereto, and
the Indenture, (vi) any fees charged by rating agencies for
the rating of the Notes, (vii) the fees and expenses, if
any, incurred with respect to the review by the National
Association of Securities Dealers, Inc. pursuant to the
filing requirements in connection with its review of
corporate financings, if any, (viii) advertising expenses,
and (ix) the fees and disbursements of one counsel to the
Agents in connection with the offering and sale of the Notes
and such other incidental expenses as may be agreed upon by
you and the Company.
5. Conditions of Obligations. The obligation of
any Agent to solicit offers to purchase the Notes as agent
of the Company and the obligation of any Agent to purchase
Notes as principal pursuant to any Terms Agreement shall, in
each case, be subject to the accuracy of the representations
and warranties on the part of the Company herein (and, in
the case of an obligation of an Agent to purchase Notes as
principal, in or incorporated by reference in the Terms
Agreement relating to such purchase), to the accuracy of the
statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants
and agreements herein contained on its part to be performed
and observed and to the following additional conditions
precedent:
(a) You shall have received, on the date hereof,
a Certificate, dated the date hereof, signed by the Chairman
of the Board of Directors, a Vice Chairman of the Board of
Directors, a member of the Office of the President or a Vice
President and the principal financial or accounting officer
of the Company, stating that the signers of such certificate
have carefully examined the Registration Statement and the
Prospectus and that (i) no order suspending the
effectiveness of the Registration Statement or the
qualification of the Indenture or prohibiting the sale of
the Notes has been issued and no proceedings for such
purpose are pending before or, to the knowledge of the
Company, threatened by the Commission, (ii) in the opinion
of the signers, the statements made in the Registration
Statement and the Prospectus are true and correct in all
material respects and neither the Registration Statement nor
the Prospectus omits to state any material fact required to
be stated therein or necessary in order to make the
statements therein, respectively, not misleading (other than
the omission of information from the Prospectus that the
Prospectus contemplates shall be set forth in a supplement
thereto), (iii) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change
in the business, properties, financial condition or earnings
of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary
course of business, other than as set forth in or
contemplated by the Registration Statement and Prospectus,
and since such dates, except in the ordinary course of
business, neither the Company nor any of its subsidiaries
has entered into any material transaction (when viewed with
respect to the Company and its subsidiaries taken as a
whole) not referred to in the Registration Statement and the
Prospectus, (iv) neither the Company nor any of its
subsidiaries has any material contingent obligations (when
viewed with respect to the Company and its subsidiaries
taken as a whole) that are not disclosed in the Registration
Statement and the Prospectus, (v) there are no material
pending legal proceedings (when viewed with respect to the
Company and its subsidiaries taken as a whole) to which the
Company or any of its subsidiaries is a party, or of which
property of the Company or of any of its subsidiaries is the
subject, that are not disclosed in the Registration
Statement and the Prospectus, (vi) this Agreement and the
offering and sale of the Notes will not be in contravention
of the provisions of any indenture, agreement or undertaking
to which the Company is a party or by which it is bound, and
(vii) on the basis of financial information prepared for
internal use by management and relating to the Company and
its subsidiaries for the period subsequent to June 30, 1997
they have no reason to believe that there has been any
material adverse change in the financial position of the
Company and its subsidiaries from that set forth in or
contemplated by the Registration Statement and Prospectus,
or that there has been any material adverse change in the
results of operations of the Company and its subsidiaries as
compared with the corresponding period in the prior year,
except in all instances as set forth in or contemplated by
the Registration Statement and Prospectus or changes in the
ordinary course of business or from dividends paid or
declared.
(b) You shall have received, on the date hereof,
an opinion, dated the date hereof, of Xxxxxxx Xxxxx Xxxxxx &
Xxxxxx LLP, your counsel, (i) to the effect that the
Registration Statement and the Prospectus (except as to
financial statements and other financial data contained
therein, as to which said counsel need express no opinion)
and any amendments or supplements thereto comply as to form
in all material respects with the applicable requirements of
the Securities Act and the Regulations and the Exchange Act
and the rules and regulations of the Commission thereunder
and (ii) as to the qualification and validity of the
Indenture, the validity of the Notes, the corporate
proceedings incident to the issuance and sale of the Notes
and such other legal matters as to which you shall have
reasonably requested an opinion.
(c) You shall have received, on the date hereof,
an opinion, addressed to you, dated the date hereof and
satisfactory to you, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, special counsel for the Company, to the effect that
(i) this Agreement (and, if the opinion is being given
pursuant to Section 6(d) hereof on account of the Company
having agreed to sell Notes to an Agent as principal, the
applicable Terms Agreement) has been duly authorized,
executed and delivered by the Company, (ii) the Indenture
has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights
generally, (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law
or in equity), (C) requirements that a claim with respect to
the Notes denominated other than in the United States
dollars (or a judgment denominated other than in United
States dollars in respect of such a claim) be converted into
United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law, and (D)
governmental authority to limit, delay or prohibit the
making of payments in foreign currencies, currency units or
composite currencies outside the United States (iii) the
issuance and sale of the Notes by the Company pursuant to
this Agreement (and, if the opinion is being given pursuant
to Section 6(d) hereof on account of the Company having
agreed to sell Notes to an Agent as principal, the
applicable Terms Agreement) have been duly authorized by
requisite corporate action on the part of the Company, and
the Notes, when the terms thereof have been fixed by an
authorized representative of the Company, in conformity with
the Indenture and the resolutions of the Board of Directors
of the Company and the Finance Committee of the Board, and
when issued by the Company in accordance with the
Administrative Procedures attached as Exhibit B hereto and
the officers' certificate pursuant to the Indenture and
delivered to and paid for in accordance with the terms of
this Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights
generally, (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law
or in equity), (C) requirements that a claim with respect to
the Notes denominated other than in the United States
dollars (or a judgment denominated other than in United
States dollars in respect of such a claim) be converted into
United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law, and (D)
governmental authority to limit, delay or prohibit the
making of payments in foreign currencies, currency units or
composite currencies outside the United States, (iv) the
statements contained in the Prospectus under the heading
"Description of Securities" and in the Prospectus Supplement
under the heading "Description of Notes", insofar as they
purport to summarize certain provisions of the laws and
documents referred to therein, fairly summarize such
provisions in all material respects, (v) the Indenture and
the forms of the Notes conform to the descriptions thereof
contained in the Prospectus, and (vi) the Registration
Statement (except as to financial statements, schedules and
other financial and statistical data contained or
incorporated by reference therein or excluded therefrom, or
the exhibits to the Registration Statement, including the
Forms T-1, as to which such counsel need express no opinion)
at the Effective Date (or, if applicable, at the effective
date of any post-effective amendment thereto) and the
Prospectus (except as to financial statements, schedules and
other financial and statistical data contained therein, as
to which such counsel need express no opinion), as of its
date, excluding the Incorporated Documents, appeared on
their face to be appropriately responsive in all material
respects to the applicable provisions of the Securities Act
and the Regulations. Such counsel shall also state that
they have been advised by the Commission that the Indenture
has been qualified under the Trust Indenture Act. In
rendering the opinions required by clauses (ii) and (iii) of
this opinion, such counsel may assume that the execution and
delivery by the Company of the Indenture and the Notes and
the performance of its obligations thereunder do not and
will not violate, conflict with or constitute a default
under (i) any agreement or instrument to which the Company
or any of its properties is subject (except that they do not
make the assumption set forth in this clause (i) with
respect to the Certificate of Incorporation or the By-Laws),
(ii) any law, rule, or regulation to which the Company or
any of its properties is subject (except that they do not
make the assumption set forth in this clause (ii) with
respect to the Delaware General Corporation Law and those
laws, rules and regulations (other than securities and
antifraud laws) of the State of New York which, in their
experience, are normally applicable to transactions of the
type contemplated by the Indenture, but without such counsel
having made any special investigation concerning any other
laws, rules or regulations), (iii) any judicial or
regulatory order or decree of any governmental authority or
(iv) any consent, approval, license, authorization or
validation of, or filing, recording or registration with any
governmental authority. In rendering the opinions required
by clause (iii) of this paragraph (c), such counsel may
assume that at the time of the issuance, sale and delivery
of each particular Note the authorization of the Notes will
not have been modified or rescinded and, with respect to
each Note, that such Note will conform to the forms of the
Notes examined by such counsel and that at the time of the
issuance, sale and delivery of each particular Note there
will not have occurred any change in law affecting the
validity, legally binding character or enforceability of
such Note and that the issuance, sale and delivery of such
Note, all of the terms of such Note and the performance by
the Company of its obligations thereunder will comply with
applicable law and with each requirement or restriction
imposed by any court or governmental body having
jurisdiction over the Company and will not result in a
default under or a breach of any agreement or instrument
then binding upon the Company or its properties. In
rendering the opinion required by clause (vi) of this
paragraph (c), such counsel may also state that they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and Prospectus other than those portions thereof
contained in or under the headings "Description of
Securities" in the Prospectus and "Description of Notes" in
the Prospectus Supplement.
(d) You shall have received, on the date hereof,
an opinion, addressed to you, dated the date hereof and
satisfactory to you, of Xxxxxxx X. Xxxxx, Vice President and
Assistant General Counsel of Beneficial Management
Corporation of America, a wholly owned subsidiary of the
Company, to the effect that (i) the Company has been duly
incorporated in, and is a validly existing corporation in
good standing under the laws of, the State of Delaware, (ii)
the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that
enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (B) general
principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity), (C)
requirements that a claim with respect to the Notes
denominated other than in the United States dollars (or a
judgment denominated other than in United States dollars in
respect of such a claim) be converted into United States
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and (D) governmental
authority to limit, delay or prohibit the making of payments
in foreign currencies, currency units or composite
currencies outside the United States, (iii) the issuance and
sale of the Notes by the Company pursuant to this Agreement
(and, if the opinion is being given pursuant to Section 6(d)
hereof on account of the Company having agreed to sell Notes
to an Agent as principal, the applicable Terms Agreement)
have been duly authorized by requisite corporate action on
the part of the Company and the Notes, when the terms
thereof have been fixed by an authorized representative of
the Company, in conformity with the Indenture and the
resolutions of the Board of Directors of the Company and the
Finance Committee of the Board, and when issued by the
Company in accordance with the Administrative Procedures
attached as Exhibit B hereto and the officers' certificate
pursuant to the Indenture and delivered to and paid for in
accordance with the terms of this Agreement, will be valid
and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the
Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (B) general
principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity), (C)
requirements that a claim with respect to the Notes
denominated other than in the United States dollars (or a
judgment denominated other than in United States dollars in
respect of such a claim) be converted into United States
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and (D) governmental
authority to limit, delay or prohibit the making of payments
in foreign currencies, currency units or composite
currencies outside the United States, (iv) the issuance and
sale of the Notes by the Company as contemplated by this
Agreement (and, if the opinion is being given pursuant to
Section 6(d) hereof on account of the Company having agreed
to sell Notes to an Agent as principal, the applicable Terms
Agreement) will not violate, conflict with or constitute a
default under (A) any of the provisions of the Restated
Certificate of Incorporation, as amended and supplemented,
or the By-Laws of the Company, or of any indenture,
agreement or undertaking mentioned or referred to in any
registration statement or other report filed by the Company
with the Commission or in the minutes of the meetings of the
stockholders, Board of Directors, Executive or Finance
Committee of the Company, to which the Company or any of its
properties is subject, (B) any judicial or regulatory order
or decree of any governmental authority known to such
counsel or (C) any consent, approval, license, authorization
or validation of, or filing, recording or registration with
any governmental authority of which such counsel is aware,
(v) the Incorporated Documents (except as to financial
statements, schedules and other financial and statistical
data contained or incorporated by reference therein or
excluded therefrom, or the exhibits to the Registration
Statement, including the Forms T-1, as to which such counsel
need express no opinion), appeared on their face to be
appropriately responsive in all material respects to the
applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder and (vi) the
statements contained in Item 15 of Part II of the
Registration Statement, insofar as they purport to summarize
certain provisions of the laws and documents referred to
therein, fairly summarize such provisions in all material
respects. In addition, such counsel shall state that,
although he is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement
(except to the extent set forth in clause (vi) above) or the
Prospectus and has made no independent check or verification
thereof, no facts have come to his attention that have led
him to believe (A) that the Registration Statement (except
as to financial statements, schedules and other financial
and statistical data contained or incorporated by reference
therein or excluded therefrom, or the exhibits to the
Registration Statement, including the Forms T-1, as to which
such counsel need express no statement) at the Effective
Date (or, if applicable, at the effective date of any post-
effective amendment thereto) contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, (B) that all
documents required to be filed as exhibits to the
Registration Statement (including exhibits to the
Incorporated Documents) have not been so filed or (C) that
the Prospectus (except as to financial statements, schedules
and other financial and statistical data contained or
incorporated by reference therein or excluded therefrom or
the exhibits to the Registration Statement, including the
Forms T-1, as to which such counsel need express no
statement) as of its date contained any untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading and (D) that there is any material pending legal
proceeding to which the Company or any of its subsidiaries
is a party that would be required to be described in the
Registration Statement or Prospectus pursuant to the
applicable requirements of the Securities Act or the
Exchange Act and the rules and regulations of the Commission
thereunder, that is not as described. In rendering the
opinions required by clause (iii) of this paragraph (d),
such counsel may assume that at the time of the issuance,
sale and delivery of each particular Note there will not
have occurred any change in law affecting the validity,
legally binding character or enforceability of such Note and
that the issuance, sale and delivery of such Note, all of
the terms of such Note and the performance by the Company of
its obligations thereunder will comply with applicable law
and with each requirement or restriction imposed by any
court or governmental body having jurisdiction over the
Company and will not result in a default under or a breach
of any agreement or instrument then binding upon the Company
or its properties (except that such counsel shall not make
this assumption with respect to the indentures and
agreements on which such counsel opines pursuant to clause
(iv).
(e) You shall have received on the date hereof a
signed letter from Deloitte & Touche LLP, dated the date
hereof, substantially identical to the draft of such letter
heretofore delivered to you.
(f) The representations, covenants and warranties
of the Company contained herein and the statements in the
certificates furnished hereunder by the Company shall be
true and correct as of the date hereof and the Company shall
have performed all agreements herein contained to be
performed on its part at or prior to the date hereof and you
shall have received on the date hereof a certificate to such
effect, dated the date hereof and signed by the Chairman of
the Board of Directors, a Vice Chairman of the Board of
Directors, a member of the Office of the President or a Vice
President of the Company.
(g) The Company shall have furnished to you such
further information and documents as you may have reasonably
requested.
In rendering the opinions required by this Section 5,
Xxxxxxx Xxxxx Xxxxxx & Xxxxxx LLP, Xxxxxxx, Arps, Slate,
Xxxxxxx & Xxxx LLP and Xxxxxxx X. Xxxxx, Esq. may rely, as to
matters involving or affected by the laws of jurisdictions
other than the State of New York, upon the opinions of counsel
qualified in such other jurisdictions satisfactory to you,
provided the extent of such reliance is specified in their
opinion and copies of any opinions so relied upon are attached
to the opinion of such counsel.
Your obligations to purchase Notes as principal
pursuant to any Terms Agreement at the Time of Delivery
applicable thereto will be subject to the following further
conditions: (a) the rating assigned by any nationally
recognized securities rating agency to any debt securities
of the Company as of the date of the applicable Terms
Agreement shall not have been lowered since that date and
(b) there shall not have come to your attention any facts
that would cause you to believe that, on or prior to such
Time of Delivery, the Prospectus contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances existing at such time, not
misleading.
6. Additional Covenants of the Company. The
Company covenants and agrees that:
(a) Each acceptance by it of an offer for the
purchase of Notes hereunder (including any purchase by any
Agent as principal pursuant to an oral Terms Agreement), and
each execution and delivery by the Company of a written
Terms Agreement with any Agent, shall be deemed to be an
affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and
correct at the time of such acceptance or the date of such
Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such
representations and warranties will be true and correct as
of the settlement date for the Notes relating to such
acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations
and warranties shall relate to the Registration Statement
and the Prospectus as amended and supplemented to each such
time).
(b) Each time the Company sells Notes to or
through one or more Agents pursuant to this Agreement the
Company shall prepare and cause to be filed with the
Commission pursuant to Rule 424(b)(2) an amendment or
supplement to the Prospectus (a "Pricing Supplement")
setting forth the terms of the offering of the Notes so
purchased by you.
(c) Each time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by an amendment or supplement providing solely for a change
in the interest rates of the Notes or the method of
determining such interest rates or a change in the principal
amount of Notes remaining to be sold or similar changes),
including the filing of an Incorporated Document, and each
time the Company sells Notes to you as principal pursuant to
a Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to you a certificate in form
satisfactory to you to the effect that the statements
contained in the certificates referred to in Sections 5(a)
and (e) hereof that were last furnished to you are true and
correct at such time, as though made at and as of such time
(except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred
to in said Sections 5(a) and (e), modified as necessary to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such
certificates; provided, however, that, unless you so
request, no such certificate need be furnished in connection
with the filing by the Company of a Current Report on Form
8-K or a proxy statement.
(d) Each time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by an amendment or supplement (i) providing solely for a
change in the interest rates of the Notes or the method of
determining such interest rates or a change in the principal
amount of Notes remaining to be sold or similar changes or
(ii) setting forth or incorporating by reference financial
statements or other financial information as of and for a
fiscal quarter, unless, in the case of clause (ii) above,
you request that an opinion of counsel be furnished),
including the filing of an Incorporated Document, and each
time the Company sells Notes to an Agent as principal
pursuant to a Terms Agreement, the Company shall furnish or
cause to be furnished forthwith to you and your counsel a
written opinion of Xxxxxxx X. Xxxxx, Esq., or other counsel
satisfactory to you, dated the date of such amendment or
supplement or filing or sale, in form satisfactory to you,
of the same tenor as the opinion referred to in Section 5(d)
hereof but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in
lieu of such opinion, counsel last furnishing such an
opinion to you shall furnish you with a letter to the effect
that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing
reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance); provided,
however, that unless you so request, no such opinion or
letter need be furnished in connection with the filing by
the Company of a Current Report on Form 8-K or a proxy
statement.
(e) Each time that the Registration Statement or
the Prospectus shall be amended or supplemented to set forth
additional financial information, including the filing of an
Incorporated Document, and each time the Company sells Notes
to you as principal pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to
you a letter or letters from the firm or firms of
independent accountants then retained by the Company, dated
the date of such amendment or supplement or filing or sale,
in form satisfactory to you, of the same tenor as the letter
referred to in Section 5(e) hereof but modified to relate to
the Registration Statement, as amended and supplemented to
the date of such letter or letters; provided, however, that
if the Registration Statement or the Prospectus is amended
or supplemented or a document is filed with the Commission
solely to include or incorporate by reference financial
information as of and for a fiscal quarter, such independent
public accountants may limit the scope of such letter to the
unaudited financial statements and other information derived
from the accounting records of the Company included in such
amendment or supplement.
(f) Anything to the contrary in subsections (c),
(d) and (e) of this Section 6 notwithstanding, if, at the
time of any amendment or supplement to the Registration
Statement or Prospectus, including the filing of an
Incorporated Document, the Company shall have instructed you
to suspend solicitation of offers to purchase the Notes in
your capacity as agents of the Company and you do not then
hold any Notes acquired by you as principal, the Company
shall not be obligated to furnish or cause to be furnished
to you any certificate, opinion or letter otherwise required
until such time as it shall determine that solicitation of
Notes should be resumed.
(g) Notwithstanding anything to the contrary in
this Distribution Agreement, any time the Company sells
Notes to you as principal pursuant to a Terms Agreement, and
such transaction conveys an aggregate principal amount of
Notes less than $100,000,000, unless otherwise agreed upon,
the Company shall be under no obligation to provide to you
or cause to be provided to you any of the certificates,
opinions, letters or other documents that it would otherwise
be obligated to provide to you under Sections 5 and 6 of
this Distribution Agreement in connection with such sale
under a Terms Agreement.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold
harmless each of you and each person, if any, who controls
each of you within the meaning of Section 15 of the
Securities Act, and each and all and any of them, against
any and all losses, claims, damages or liabilities, joint or
several, to which they, or any of them, may become subject
under the Securities Act or other statutory law or at common
law, and, except as hereinafter provided, to reimburse each
of you and each such controlling person for any legal or
other expenses as incurred by you or them in connection with
defending any actions, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement
(including the Prospectus as part thereof) or any post-
effective amendment thereto, or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any
Prospectus or the omission or alleged omission to state
therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any such untrue statement or omission or
alleged untrue statement or omission that was made in said
Registration Statement or Prospectus in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of any of you expressly for use
therein, or except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
such untrue statement or omission or alleged untrue
statement or omission that was made in that part of the
Registration Statement that constitutes the Statements of
Eligibility under the Trust Indenture Act (Form T-1) of the
Trustee or the other trustee for the Debt Securities
registered under the Registration Statement, other than any
such statement or omission made therein in reliance upon and
in conformity with information furnished in writing to the
Trustee or such other trustee by or on behalf of the Company
for use therein; provided, however, that the aforesaid
indemnity agreement with respect to the Prospectus shall not
inure to the benefit of such one of you through whom the
person asserting any such loss, claim, damage, liability or
action purchased the Notes that are the subject thereof, or
to the benefit of any person controlling such one of you, if
the Company shall have furnished an amendment or supplement
to the Prospectus to such one of you prior to the time a
written confirmation of the sale of such Notes was sent or
given to the person asserting such loss, claim, damage,
liability or action that shall correct the untrue statement
or omission or the alleged untrue statement or omission that
is the basis of the loss, claim, damage, liability or action
for which indemnification is sought and the Prospectus as so
amended or supplemented, excluding documents incorporated by
reference, was not sent or given to such person at or prior
to the written confirmation of the sale of such Notes to
such person. Each of you agrees that, promptly upon receipt
of notice of the commencement of any action against you or
against any person so controlling you in respect of which
indemnity or reimbursement may be sought from the Company on
account of the agreement contained in this paragraph, notice
will be given to the Company in writing of the commencement
thereof, together with a copy of all papers served, but the
omission so to notify the Company of any such action shall
not release the Company from any liability that it may have
to you or to any such controlling person otherwise than on
account of the indemnity agreement contained in this
paragraph. In case any such action shall be brought against
any of you or against any such controlling person, the
Company shall be entitled to participate in (and, to the
extent that it shall wish, including the selection of
counsel who shall be reasonably satisfactory to you or such
controlling person, to direct) the defense thereof at its
own expense. Notwithstanding the foregoing, if you or such
controlling person shall have reasonably concluded that
there may be a conflict of interest between the Company and
you or such controlling person, as the case may be, in the
conduct of the defense of any such action, you or such
controlling person shall have the right to employ separate
counsel (who shall be reasonably satisfactory to the
Company) in such action, in which event the fees and expense
of such separate counsel shall be borne by the Company. Any
of you or any such controlling person shall have the right
to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of you
or such controlling person unless the employment of such
counsel (i) is in accordance with the preceding sentence,
(ii) has been authorized by the Company in connection with
the defense of such action or (iii) the Company shall not
have employed counsel reasonably satisfactory to you or such
controlling person to direct the defense of such action, in
which events the same shall be borne by the Company. The
Company shall not be liable for any settlement of any such
claim or action effected without its consent.
(b) Each Agent agrees to indemnify and hold
harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities
Act, each director of the Company and each officer of the
Company who shall have signed the Registration Statement,
and each and all and any of them, against any and all
losses, claims, damages or liabilities, joint or several, to
which they, or any of them, may become subject under the
Securities Act or other statutory law or at common law, and
to reimburse the Company and each such controlling person,
director and officer for any legal or other expenses as
incurred by them in connection with defending any actions,
insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (including the
Prospectus as part thereof) or any post-effective amendment
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus or the omission or
alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
which untrue statement or omission or alleged untrue
statement or omission was made in such Registration
Statement or Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by or
on behalf of such Agent expressly for use therein. The
Company agrees that, promptly upon receipt of notice of the
commencement of any action against the Company or any person
so controlling the Company or any such director or officer
in respect of which indemnity or reimbursement may be sought
from any Agent on account of the agreement contained in this
paragraph, notice will be given to such Agent in writing of
the commencement thereof, together with a copy of all papers
served, but the omission so to notify such Agent of any such
action shall not release such Agent from any liability that
it may have to the Company or to any such controlling
person, director or officer otherwise than on account of the
indemnity agreement contained in this paragraph. In case
any such action shall be brought against the Company or
against any such controlling person, director or officer,
the applicable Agent shall be entitled to participate in
(and to the extent that it shall wish, including the
selection of counsel who shall be reasonably satisfactory to
the Company or such controlling person, director or officer,
as the case may be, to direct) the defense thereof at its
expense; provided, however, that if more than one Agent
shall participate in such defense, such Agents shall only be
entitled to direct such defense and select such counsel in
such manner as all such Agents participating in such defense
shall determine. Notwithstanding the foregoing, if the
Company or any controlling person, director or officer shall
have reasonably concluded that there may be a conflict of
interest between the Company or any such controlling person,
director or officer, as the case may be, and the applicable
Agent in the conduct of the defense of any such action, the
Company or any such controlling person, director or officer
shall have the right to employ separate counsel (who shall
be reasonably satisfactory to the applicable Agent) in such
action, in which event the fees and expenses of such
separate counsel shall be borne by such Agent. The Company
or any such controlling person, director or officer shall
have the right to employ its or their own counsel in any
such action, but the fees and expenses of such counsel shall
be at the expense of the Company or such controlling person,
director or officer unless the employment of such counsel
(i) is in accordance with the preceding sentence, (ii) has
been authorized by the applicable Agent in connection with
the defense of such action or (iii) the applicable Agent
shall not have employed counsel reasonably satisfactory to
the Company or such controlling person, director or officer
to direct the defense of such action, in which events the
same shall be borne by such Agent. The applicable Agent
shall not be liable for any settlement of any such claim or
action effected without its consent.
(c) In order to provide for just and equitable
contribution in circumstances in which the indemnity
agreement provided for in this Section 7 is for any reason
held to be unavailable other than in accordance with its
terms, the Company and the Agents shall contribute to the
aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement
incurred by the Company and the Agents in such proportions
that each Agent is responsible for that portion represented
by the percentage that the total commission or underwriting
discount received by such Agent bears to the total sales
price received by the Company, in each case from the sale of
Notes sold to or through such Agent that were the subject of
the claim for indemnification, and the Company is
responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this
subsection (c), each person, if any, who controls an Agent
within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of
the Securities Act shall have the same rights to
contribution as the Company, subject in each case to the
proviso to the first sentence of this subsection (c).
8. Status of the Agents. In soliciting
purchases of the Notes in their capacity as agents of the
Company, the Agents are acting individually and not jointly
and are acting solely as agents for the Company and not as
principals. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but such Agent
will not have any liability to the Company in the event any
such purchase is not consummated for any reason.
9. Representations and Agreements to Remain in
Effect. The representations, warranties and agreements of
the Company in this Agreement or any Terms Agreement
relating to the sale of Notes directly to an Agent as
principal, or contained in certificates of officers of the
Company furnished pursuant hereto, shall remain operative
and in full force and effect regardless of any investigation
made by or on behalf of any of you or any controlling person
of any of you, or by or on behalf of the Company or any
controlling person, director or officer of the Company and
shall survive each delivery and acceptance of and payment
for any of the Notes.
10. Termination. This Agreement may be
terminated at any time by any party hereto upon the giving
of written notice of such termination to the other parties
hereto. Such of you who have agreed to purchase Notes as
principal pursuant to a Terms Agreement may also terminate
such Terms Agreement on or prior to the Time of Delivery
specified therein, immediately upon notice to the Company,
at any time (i) if there has been, since the respective
dates as of which information is given in the Registration
Statement as in effect on the date of such agreement, any
material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as
one enterprise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary
course of business, except as set forth in or contemplated
by the Prospectus, or (ii) if there has occurred any
outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of such
of you who are a party to such agreement, impracticable to
market the Notes or enforce contracts for the sale of the
Notes, or (iii) if trading in any securities of the Company
has been suspended by the Commission or a national
securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange has
been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if
a banking moratorium has been declared by either Federal or
New York authorities. In the event of any such termination,
no party will have any liability to any other party hereto,
except that (i) if at the time of termination (A) any of you
shall own any of the Notes or (B) an offer to purchase any
of the Notes has been accepted by the Company but the Time
of Delivery has not occurred, except as otherwise provided
in any relevant agreement, the covenants set forth in
Sections 3 and 6 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and
(ii) the covenant set forth in Section 3(i) hereof, the
provisions of Section 4 hereof, the indemnity and
contribution agreement set forth in Section 7 hereof and the
provisions of Sections 9, 12 and 13 hereof shall remain in
effect.
11. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of written telecommunication, if to
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated directed to it at Xxxxxxx Xxxxx World
Headquarters, World Financial Center, North Tower, 10th
Floor, New York, New York 10281-1310, Attention: MTN
Product Management (Telecopier No. 212-449-2234); if to X.X.
Xxxxxx Securities Inc., directed to it at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0060, Attention: Transaction
Execution Group (Telecopier No. 212-648-5151); if to UBS
Securities LLC, directed to it at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxx
(Telecopier No. 212-821-3667); if to Chase Securities Inc.
directed to it at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Medium-Term Note Desk (Telecopier
No. 212-834-6081); if to Salomon Brothers Inc directed to it
at 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Department (Telecopier No. 212-
783-2274); and if to the Company directed to it at One
Xxxxxxxxx Centre, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 19801, Attention: Corporate Secretary (Telecopier
No. 302-425-2512), or, in any case, if mailed or transmitted
to such other person at such other address as may be
designated in a notice mailed or transmitted as aforesaid.
12. Parties in Interest. This Agreement and any
agreement under which you agree to purchase Notes as
principal pursuant to a Terms Agreement and all conditions
and provisions hereof and thereof are intended to be solely
for the benefit of you (or such of you who are a party to
such agreement), the Company, and your and its respective
successors and assigns, and, to the extent expressed herein,
for the benefit of persons controlling any of you or the
Company, directors and officers of the Company, and their
respective successors and assigns, and no other person,
partnership, association or corporation shall acquire or
have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any
purchaser of Notes merely because of such purchase.
13. Governing Law. This Agreement and any Terms
Agreement relating to the sale of Notes directly to an Agent
as principal shall be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
a counterpart hereof, whereupon this instrument along with
all counterparts will become a binding agreement between you
and us in accordance with its terms.
Very truly yours,
BENEFICIAL CORPORATION
By /s/ XXXXXX X. XXXXXXXX
___________________________
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By /s/ XXXXX X. XXXXXXXX
____________________________
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By /s/ XXXXXXX XXXX
____________________________
Name: Xxxxxxx Xxxx
Title: Vice President
UBS SECURITIES LLC
By /s/ XXXXXXX XXXXXXX
____________________________
Name: Xxxxxxx Xxxxxxx
Title: Director
CHASE SECURITIES INC.
By /s/ XXXXX X. XX XXXX
____________________________
Name: Xxxxx X. Xx Xxxx
Title: Managing Director
SALOMON BROTHERS INC
By /s/ XXXXXX X. XXXXXX
___________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
BENEFICIAL CORPORATION
(a Delaware corporation)
Medium-Term Notes, Series I
TERMS AGREEMENT
_________, 199_
Beneficial Corporation
One Xxxxxxxxx Centre
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Distribution Agreement dated July 25, 1997
The undersigned agrees to purchase the following
principal amount (in the specified currency or currency
unit) of Notes:
Interest Rate: Date of Maturity:
Price to be Paid to Beneficial Corporation: %
Initial Public Offering Price:
Time of Delivery, Place and Procedures:
[Other terms and conditions, including terms of
Floating Rate Notes, any limitation on the obligation of the
Company to amend or supplement the Registration Statement
and the Prospectus and any restriction on the Company's
ability to offer or sell, or enter into any agreement to
sell, other debt securities, additional conditions to the
purchaser's obligation to purchase the Notes and, if the
principal amount of Notes is less than $100,000,000, any
certificates, opinions, letters or other documents to be
delivered by the Company.]
Reference is made to the Distribution Agreement
referred to above for a more complete description of the
rights and obligations of the parties hereto.
[PURCHASER]
By ___________________________
Name:_______________________
Title:______________________
Accepted:
BENEFICIAL CORPORATION
By _________________________
Name:_____________________
Title:____________________
EXHIBIT B
Beneficial Corporation
Medium-Term Note Administrative Procedures
Medium-Term Notes, Series I (the "Notes"), are to
be offered on a continuing basis by Beneficial Corporation
(the "Company"). Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities
Inc., UBS Securities LLC, Chase Securities Inc. and Salomon
Brothers Inc (referred to herein collectively as the
"Agents" and singularly as the "Agent") have each agreed to
use their best efforts to solicit offers to purchase Notes
from the Company pursuant to a Distribution Agreement dated
July 25, 1997, between each of them and the Company (the
"Agreement"). The Agreement also provides that one or more
Agents may purchase Notes as principal for resale under
terms and conditions of a Terms Agreement to be negotiated
with the Company. The Company may also solicit offers to
purchase Notes through other agents, and may sell Notes to
other persons as principals, all as may be designated by the
Company from time to time. In addition, the Company
directly on its own behalf or through any subsidiary may
also solicit offers to purchase Notes. Debt Securities in
the aggregate principal amount of $3,000,000,000 have been
registered with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended,
as provided in the Agreement, of which the entire $3,000,000
principal amount constitute the Notes. The Chase Manhattan
Bank (the "Trustee"), is the trustee under the Indenture
covering the Notes (the "Indenture"). Notes will bear
interest at either fixed rates ("Fixed Rate Notes") or
floating rates ("Floating Rate Notes"). Notes will either
be issued (a) in book-entry form and represented by one or
more fully registered Notes (each, a "Book-Entry Note")
delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system
maintained by DTC, or (b) in certificated form delivered to
the purchaser thereof or a person designated by such
purchaser (each, a "Certificated Note"). Owners of
beneficial interests in Notes issued in book-entry form will
not be entitled to physical delivery of Notes in
certificated form (except in certain limited circumstances
that are more fully described in the Prospectus and the
Prospectus Supplement relating to the Notes). The Trustee
will be the paying agent for the payment of interest and
interest and principal at maturity of the Notes.
The terms and settlement details related to a
purchase of Notes by an Agent as principal will be, unless
otherwise set forth in the Terms Agreement, as set forth
below. The terms and settlement details related to a
purchase of Notes in an agency transaction shall be as set
forth below unless otherwise set forth in the applicable
Pricing Supplement. The term referred to herein as
"Presenting Agent" shall mean, as the context in which it is
used requires, either an Agent, acting as agent for the
Company in soliciting purchases of the Notes, or an Agent,
acting as principal in purchasing Notes from the Company
pursuant to a Terms Agreement.
Administrative procedures under the Agreement and
specific terms of the offering of the Notes thereunder are
set forth below. General procedures relating to the
issuance of all Notes are set forth in Part I hereof.
Additionally, Notes issued in book-entry form will be issued
in accordance with the administrative procedures set forth
in Part II hereof and Notes issued in certificated form will
be issued in accordance with the administrative procedures
set forth in Part III hereof. Capitalized terms used herein
that are not otherwise defined shall have the meanings
ascribed thereto in the Agreement, the Indenture or the
Notes (which in the case of Notes issued in book-entry form
shall be the related Book-Entry Note), as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Maturities: Each Note will mature on a date selected
by the purchaser and agreed to by the
Company, such date being not less than
nine months from its Original Issue
Date; provided, however, that Floating
Rate Notes will mature on an Interest
Payment Date.
Registration: The Notes will be issued only in fully
registered form.
Calculation of In the case of Fixed Rate Notes,
Interest: interest (including payments for partial
periods) will be calculated and paid on
the basis of a 360-day year consisting
of twelve 30-day months. In the case of
Floating Rate Notes, interest will be
calculated and paid on the basis of the
actual number of days in the interest
period divided by 360 for Commercial
Paper, Prime Rate, Federal Funds Rate
and LIBOR Notes, and on the basis of the
actual number of days in the interest
period divided by the actual number of
days in the year for Treasury Rate
Notes.
Acceptance and The Company will have the sole right to
Rejection of accept offers to purchase Notes from the
Offers: Company and may reject any offer in
whole or in part. The Agents will have
the right, in their discretion
reasonably exercised, without notice to
the Company to reject any offer to
purchase Notes in whole or in part.
Each Agent will promptly advise the
Company by telephone or in writing of
all reasonable offers to purchase Notes
from the Company received by such Agent,
other than those rejected by such Agent.
Any notice or advice given to the
Company by any Agent concerning an offer
to purchase Notes from the Company shall
include a statement as to whether such
offer is being made by such Agent acting
on its own behalf as principal or as
agent with respect to such offer.
Preparation of If any offer to purchase a Note is
Supplement: accepted by the Company, the Company
shall provide to the Presenting Agent
and the Trustee a copy of the supplement
to the Prospectus Supplement setting
forth the interest rate or the method of
determining the interest rate of such
Notes and other material information, if
any, concerning the offering of the
Notes that is not set forth in the
Prospectus or Prospectus Supplement (a
"Pricing Supplement").
If an identical Pricing Supplement has
not been previously filed with the
Commission, the Company will also file
the Pricing Supplement with the
Commission within the time period
required under Rule 424(b)(2). One copy
of the Pricing Supplement (along with a
copy of the cover letter, if any, sent
to the Commission if a filing with the
Commission was required) will be
delivered or mailed to the Agents at the
following addresses: MTN Product
Management, Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxx Xxxxx World
Headquarters, World Financial Center,
North Tower, 10th Floor, New York, New
York 10281-1310; Documentation Group,
X.X. Xxxxxx Securities Inc., 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0060, Attention: Prospectus
Department; UBS Securities LLC, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxxx X. Xxxxxxx; Xxxxx
Securities Inc., 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Desk; and
Salomon Brothers Inc, 0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx Xxxxxx; and to the
Trustee, at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention:
Xxxxxx Xxxxx.
The Company shall supply the Agents via
next business day mail or telecopy to
arrive no later than noon on the
Business Day following the trade date
with an adequate supply of Prospectuses
and Pricing Supplements at the following
addresses: Xxxxxxx Xxxxx & Co. Tritech
Services, 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, Attention: Xxxxxxx
Xxxxxxxxx, Final Prospectus Unit
(Telecopier No. 908-885-2775); Edit
Desk, X.X. Xxxxxx Securities Inc., 00
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0060, Attention: Prospectus
Department (Telecopier No. 212-648-
5377); UBS Securities LLC, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxxx X. Xxxxxxx
(Telecopier No. 212-821-3667); Chase
Securities Inc., 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Medium-Term Note Desk
(Telecopier No. 212-834-6081); and
Salomon Brothers Inc, 0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx Xxxxxx (Telecopier
No. 813-558-4123).
Settlement: The receipt of immediately available
funds by the Company in payment for a
Note and the authentication and delivery
of such Note shall, with respect to such
Note, constitute "settlement" and such
date of payment and delivery, whether
pursuant to an agency or a principal
transaction shall constitute a
"Settlement Date". All offers accepted
by the Company will be settled from one
to three Business Days (as defined
below) pursuant to the timetable for
settlement set forth below with respect
to Book-Entry Notes and Certificated
Notes unless the Company and the
purchaser agree to settlement on a later
date. In the event of a purchase of
Notes by one or more Agents as
principal, appropriate settlement
details will be set forth in the
applicable Terms Agreement to be entered
into between such Agent or Agents and
the Company pursuant to the Agreement.
If Procedures A and B of the applicable
Settlement Procedures with respect to a
particular offer are not completed on or
before the time set forth under the
applicable Settlement Procedures
Timetable, such transaction shall not be
settled until the Business Day following
the completion of Procedures A and B or
such later date as the purchaser and the
Company shall agree.
Procedure for When a decision has been reached to
Changing Rates change interest rates or other variable
or Other terms with respect to any Notes being
Variable Terms: sold by the Company, the Company will
promptly advise each Agent. Upon being
so advised, each Agent will forthwith
suspend solicitation of offers to
purchase such Notes. The Agents will
telephone the Company with
recommendations as to the changed
interest rates or other variable terms.
At such time as the Company has advised
each Agent of the new interest rates or
other variable terms, the Agents may
resume solicitation of offers to
purchase the Notes. During such
suspension only "indications of
interest" may be recorded.
Suspension of Subject to its representations,
Solicitation; warranties and covenants contained in
Amendment or the Agreement, the Company may instruct
Supplement: the Agents to suspend solicitation of
offers to purchase the Notes from the
Company at any time. Upon receipt of
such instructions, the Agents will
forthwith suspend solicitation of offers
to purchase from the Company until such
time as the Company has advised them
that solicitation of such offers to
purchase may be resumed. If the Company
decides to amend or supplement the
Registration Statement, Prospectus or
Pricing Supplement relating to the Notes
(other than to change interest rates or
other variable terms with respect to the
offering of the Notes), it will promptly
advise the Agents and the Trustee and
will furnish copies of the proposed
amendment or supplement to the Agents
and their counsel. In the event that,
at the time the Company suspends
solicitation of offers to purchase
(other than to change interest rates or
other variable terms), there shall be
any orders outstanding that have not
been settled, the Company will promptly
advise the Agents and the Trustee
whether such orders may be settled and
whether copies of the Prospectus as
theretofore amended and/or supplemented
as in effect at the time of the
suspension may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for
any arrangements that may be made in the
event that the Company determines that
such orders may not be settled or that
copies of such Prospectus may not be so
delivered.
Delivery of A copy of the most recent Prospectus and
Prospectus: Pricing Supplement must accompany or
precede the earlier of (a) the written
confirmation of a sale sent to a
customer or his agent and (b) the
delivery of Notes to a customer or his
agent.
Authenticity of The Agents will have no obligation or
Signatures: liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or
agent of the Company or the Trustee on
any Note.
Business Day: "Business Day" means any day that is not
a Saturday or Sunday and that, in the
City of New York, is not a day on which
banking institutions are generally
authorized or obligated by law to close.
Notices to Unless otherwise specified, all notices
Trustee: and other communications to the Trustee
should be directed to The Chase
Manhattan Bank, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxx Xxxxx (Telephone No.
000-000-0000 and Telecopier No. 212-946-
8302).
Notices to the Unless otherwise specified, all notices
Company: and other communications to the Company
should be directed to Beneficial
Corporation, c/o Beneficial Management
Corporation, Beneficial Center, Peapack,
New Jersey 07977, Attention: Corporate
Treasurer (Telephone No. 000-000-0000
and Telecopier No. 908-781-3623).
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of Book-Entry
Notes for eligibility in the book-entry system maintained by
DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC,
dated July 25, 1997, and a Medium-Term Note Certificate
Agreement, dated April 7, 1993, between the Trustee and DTC
(the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Fund Settlement
System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-
entry form having the same Original
Issue Date, interest rate, and Stated
Maturity (collectively, the "Fixed Rate
Terms") will be represented initially by
a single global security in fully
registered form without coupons (each, a
"Book-Entry Note"); and all Floating
Rate Notes issued in book-entry form
having the same Original Issue Date,
interest rate basis, initial interest
rate, spread and/or spread multiplier,
if any, interest reset dates and period,
interest payment dates and period, index
maturity, minimum and maximum interest
rates, if any, and Stated Maturity
(collectively, "Floating Rate Terms")
will be represented initially by a
single Book-Entry Note.
Each Book-Entry Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Book-Entry Note will bear interest from
an "Interest Accrual Date", which will
be (a) with respect to an original Book-
Entry Note (or any portion thereof), its
Original Issue Date and (b) with respect
to any Book-Entry Note (or portion
thereof), issued subsequently upon
exchange of a Book-Entry Note or in lieu
of a destroyed, lost or stolen Book-
Entry Note, the most recent Interest
Payment Date to which interest has been
paid or duly provided for on the
predecessor Book-Entry Note or Book-
Entry Notes (or if no such payment or
provision has been made, the Original
Issue Date of the predecessor Book-Entry
Note or Book-Entry Notes), regardless of
the date of authentication of such
subsequently issued Book-Entry Note.
Book-Entry Notes may only be denominated
and payable in U.S. dollars. No Book-
Entry Note shall represent any
Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's
Ratings Group (the "CUSIP Service
Bureau") for the reservation of
approximately 150 CUSIP numbers that
have been reserved for future assignment
to Book-Entry Notes and the Company has
delivered to the Trustee and DTC an
initial written list of such CUSIP
numbers. The Trustee will assign CUSIP
numbers on behalf of the Company to
Book-Entry Notes as described below
under Settlement Procedure C. DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers that
the Trustee has assigned on behalf of
the Company to Book-Entry Notes. The
Trustee will notify the Company at any
time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Book-
Entry Notes, and, if the Company deems
necessary, the Company will reserve
additional CUSIP numbers for assignment
to Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the
Company will deliver a list of such
additional numbers to the Trustee and
DTC.
Registration: Each Book-Entry Note will be registered
in the name of Cede & Co., as nominee
for DTC, on the Securities Register.
The beneficial owner of a Note issued in
book-entry form (i.e., an owner of a
beneficial interest in a Book-Entry
Note) (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to
such Note issued in book-entry form, the
"Participants") to act as agent or
agents for such beneficial owner in
connection with the book-entry system
maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in book-
entry form in the account of such
Participants. The ownership interest of
such beneficial owner in such Note
issued in book-entry form will be
recorded through the records of DTC or
through the separate records of such
Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Note issued in book-entry
form will be accomplished by book
entries made by DTC and, in turn, by
Participants (and in certain cases, one
or more indirect participants in DTC)
acting on behalf of beneficial
transferors and transferees of such Note
issued in book-entry form.
Consolidations The Trustee may deliver to DTC and the
or Exchanges: CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP
numbers of two or more Book-Entry Notes
Outstanding on the date of such notice
that represent Book-Entry Notes having
the same Fixed Rate Terms or Floating
Rate Terms, as the case may be (other
than Original Issue Dates), and for
which interest has been paid to the same
Interest Payment Date; (b) a date,
occurring at least 30 days after such
written notice is delivered and at least
30 days before the next Interest Payment
Date for the related Notes issued in
book-entry form, on which such Book-
Entry Notes shall be consolidated or
exchanged for a single replacement Book-
Entry Note; and (c) a new CUSIP number
to be assigned by the Trustee on behalf
of the Company to such replacement Book-
Entry Note. Upon receipt of such a
notice, DTC will send to its
participants (including the Trustee) a
written reorganization notice to the
effect that such consolidation or
exchange will occur on such date. Prior
to the specified consolidation or
exchange date, the Trustee will deliver
to the CUSIP Service Bureau written
notice setting forth such consolidation
or exchange date and the new CUSIP
number and stating that, as of such
consolidation or exchange date, the
CUSIP numbers of the Book-Entry Notes to
be consolidated or exchanged will no
longer be valid. On the specified
consolidation or exchange date, the
Trustee will consolidate or exchange
such Book-Entry Notes for a single Book-
Entry Note bearing the new CUSIP number
and the CUSIP numbers of the
consolidated or exchanged Book-Entry
Notes will, in accordance with CUSIP
Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the foregoing, if the
Book-Entry Notes to be consolidated or
exchanged exceed $100,000,000 in
aggregate principal amount, one
replacement Book-Entry Note will be
authenticated and issued to represent
$100,000,000 of principal amount of the
consolidated or exchanged Book-Entry
Notes and an additional Book-Entry Note
or Book-Entry Notes will be
authenticated and issued to represent
any remaining principal amount of such
Book-Entry Notes (See "Denominations"
below).
Denominations: All Book-Entry Notes will be denominated
in U.S. dollars. Notes issued in book-
entry form will be issued in
denominations of $25,000 and any larger
denomination that is an integral
multiple of $1,000. Book-Entry Notes
will be denominated in principal amounts
not in excess of $200,000,000. If one
or more Notes issued in book-entry form
having an aggregate principal amount in
excess of $200,000,000 would, but for
the preceding sentence, be represented
by a single Book-Entry Note, then one
Book-Entry Note will be issued to
represent $200,000,000 principal amount
of such Note or Notes issued in book-
entry form and an additional Book-Entry
Note or Book-Entry Notes will be issued
to represent any remaining principal
amount of such Note or Notes issued in
book-entry form. In such a case, each
of the Book-Entry Notes representing
such Note or Notes issued in book-entry
form shall be assigned the same CUSIP
number.
Interest: General. Interest on each Note issued
in book-entry form will accrue from the
Interest Accrual Date of the Book-Entry
Note representing such Note issued in
book-entry form. Each payment of
interest on a Note issued in book-entry
form will include interest accrued
through the day preceding, as the case
may be, the Interest Payment Date or
Stated Maturity (each Stated Maturity is
referred to herein as a "Maturity").
Interest payable at Maturity of a Note
issued in book-entry form will be
payable to the Person to whom the
principal of such Note issued in book-
entry form is payable. DTC will arrange
for each pending deposit message
described under Settlement Procedure C
below to be transmitted to Standard &
Poor's, which will use the information
in the message to include certain terms
of the related Book-Entry Note in the
appropriate daily bond report published
by Standard & Poor's.
Regular Record Dates. The Regular
Record Date with respect to any Interest
Payment Date for a Fixed Rate Note
issued in book-entry form shall be the
last calendar day, whether or not a
Business Day, of the month next
preceding such Interest Payment Date.
The Regular Record Date with respect to
any Interest Payment Date for a Floating
Rate Note issued in book-entry form
shall be the date 15 calendar days
(whether or not a Business Day)
preceding such Interest Payment Date.
Interest Payment Dates. Interest
payments will be made on each Interest
Payment Date commencing with the first
Interest Payment Date following the
Original Issue Date; provided, however,
that the first payment of interest on
any Book-Entry Note originally issued
between a Regular Record Date and an
Interest Payment Date will occur on the
Interest Payment Date following the next
Regular Record Date.
If an Interest Payment Date with respect
to any Floating Rate Note issued in
book-entry form would otherwise fall on
a day that is not a Business Day with
respect to such Note, such Interest
Payment Date will be the following day
that is a Business Day with respect to
such Note, except that in the case of a
LIBOR Note, if such day falls in the
next calendar month, such Interest
Payment Date will be the preceding day
that is a London Business Day.
Fixed Rate Notes. Interest payments on
Fixed Rate Notes issued in book-entry
form will be made semiannually on June
15 and December 15 of each year and at
Maturity.
Floating Rate Notes. Interest will be
payable monthly, quarterly, semi-
annually or annually. Interest will be
payable as follows: in the case of
Floating Rate Notes issued in book-entry
form that reset daily, weekly or
monthly, on the third Wednesday of each
month or on the third Wednesday of
March, June, September and December of
each year as specified in the Floating
Rate Note; in the case of Floating Rate
Notes that reset quarterly, on the third
Wednesday of March, June, September and
December of each year; in the case of
Floating Rate Notes issued in book-entry
form that reset semi-annually, on the
third Wednesday of the two months of
each year specified in the Floating Rate
Note issued in book-entry form; and in
the case of Floating Rate Notes issued
in book-entry form that reset annually,
on the third Wednesday of the month
specified in the Floating Rate Note
issued in book-entry form, and, in each
case, at maturity. FOR ADDITIONAL
SPECIAL PROVISIONS RELATING TO FLOATING
RATE NOTES ISSUED IN BOOK-ENTRY FORM,
SEE THE PROSPECTUS SUPPLEMENT.
Notice of Interest Payments and Regular
Record Dates. On the first Business Day
of January, April, July and October of
each year, the Trustee will deliver to
the Company and DTC a written list of
Regular Record Dates and Interest
Payment Dates that will occur during the
six-month period beginning on such first
Business Day with respect to Floating
Rate Notes issued in book-entry form.
Promptly after each Interest
Determination Date for Floating Rate
Notes issued in book-entry form, the
Calculation Agent will notify the
Trustee and Standard & Poor's of the
interest rates determined on such
Interest Determination Date.
Payments of Payments of Interest Only. Promptly
Principal and after each Regular Record Date, the
Interest: Trustee will deliver to the Company and
DTC a written notice specifying by CUSIP
number the amount of interest to be paid
on each Book-Entry Note on the following
Interest Payment Date (other than an
Interest Payment Date coinciding with
Maturity) and the total of such amounts.
DTC will confirm the amount payable on
each Book-Entry Note on such Interest
Payment Date by reference to the daily
bond reports published by Standard &
Poor's. On such Interest Payment Date,
the Company will pay to the Trustee, and
the Trustee in turn will pay to DTC,
such a total amount of interest due
(other than at Maturity), at the times
and in the manner set forth below under
"Manner of Payment."
Payments at Maturity. On or about the
first Business Day of each month, the
Trustee will deliver to the Company and
DTC a written list of principal,
interest and premium, if any, to be paid
on each Book-Entry Note maturing in the
following month. The Trustee, the
Company and DTC will confirm the amounts
of such principal and interest payments
with respect to a Book-Entry Note on or
about the fifth Business Day preceding
the maturity of such Book-Entry Note.
At such maturity, the Company will pay
to the Trustee, and the Trustee in turn
will pay to DTC, the principal amount of
such Book-Entry Note, together with
interest and premium, if any, due at
such maturity, at the times and in the
manner set forth below under "Manner of
Payment". If any maturity of a Book-
Entry Note is not a Business Day, the
payment due on such day shall be made on
the next succeeding Business Day and no
interest shall accrue on such payment
for the period from and after such
maturity. Promptly after payment to DTC
of the principal, interest and premium,
if any, due at the maturity of such
Book-Entry Note, the Trustee will cancel
such Book-Entry Note and deliver it to
the Company with an appropriate debit
advice. Upon the request of the
Company, 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.
Manner of Payment. The total amount of
any principal, premium, if any, and
interest due on Book-Entry Notes on any
Interest Payment Date or at maturity
shall be paid by the Company to the
Trustee in funds available for 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 Book-
Entry Notes 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.
For maturity, redemption or any other
principal payments: prior to 10:00 a.m.,
New York City time, on such date or as
soon as possible thereafter, the Trustee
will pay by separate wire transfer
(using Fedwire message entry
instructions in a form previously
specified by DTC) to an account at the
Federal Reserve Bank of New York
previously specified by DTC, in funds
available for immediate use by DTC, each
payment of interest, principal and
premium, if any, due on a Book-Entry
Note on such date. For interest
payments: the Trustee will make all
interest payments to DTC on the Interest
Payment Date in same day funds in
accordance with existing arrangements
between the Trustee and DTC. The
Trustee shall not be obligated to
transfer any funds to DTC unless and
until it has confirmed the receipt of
such funds from the Company. Thereafter
on the date of the payment of any
principal or any Interest Payment Date,
as the case may be, DTC will pay, in
accordance with its SDFS operating
procedures then in effect, such amounts
in funds available for immediate use to
the respective Participants in whose
names such Notes issued in book-entry
form 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 of the principal of, or
interest on, the Book-Entry Notes to
such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law to
be withheld from any interest payment on
a Note issued in book-entry form will be
determined and withheld by the
Participant, indirect participant in DTC
or other Person responsible for
forwarding payments and materials
directly to the beneficial owner of such
Note.
Settlement Settlement Procedures with regard to
Procedures: each Note in book-entry form sold by a
Presenting Agent will be as follows:
A. The Agent will advise the Company
by telephone of the following
settlement information:
1. Taxpayer identification number
of the purchaser.
2. Principal amount of the Book-
Entry Note.
3. Agent's commission or
discount, as applicable.
4. Settlement Date.
5. Maturity date.
6. Fixed Rate Notes issued in
book-entry form:
a) interest rate
Floating Rate Notes issued in
book-entry form:
a) interest rate basis;
b) initial interest rate;
c) spread, if any;
d) interest reset dates and
period;
e) interest payment dates
and period;
f) index maturity;
g) maximum and minimum
interest rates, if any;
h) spread multiplier, if
any; and
i) interest determination
date.
7. Price paid by purchaser, and
net proceeds to the Company.
8. Trade date.
B. The Company, through an authorized
representative of the Company, will
advise the Trustee by facsimile
transmission or other method
acceptable to the Trustee of the
above settlement information
received from the Presenting Agent
and the name of the Presenting
Agent.
C. The Trustee will assign on behalf
of the Company a CUSIP number to
the Book-Entry Note representing
such Note issued in book-entry form
and communicate to DTC and the
Presenting Agent through DTC's
Participant Terminal System, a
pending deposit message specifying
the following settlement
information:
1. The applicable information set
forth in Settlement Procedure
A.
2. Identification numbers of the
participant accounts
maintained by DTC on behalf of
the Trustee and the Presenting
Agent.
3. Identification as a Fixed Rate
Book-Entry Note or Floating
Rate Book-Entry Note.
4. Initial Interest Payment Date
for such Book-Entry Note,
number of days by which such
date succeeds the related
record date for DTC purposes
(which, in the case of
Floating Rate Notes issued in
book-entry form that reset
daily or weekly, shall be the
date five calendar days
preceding the applicable
Interest Payment Date and in
the case of all other Notes
shall be the Regular Record
Date) and, if then calculable,
the amount of interest payable
per $1,000 of principal amount
on such Interest Payment Date.
5. CUSIP number of the Book-Entry
Note representing such Note
issued in book-entry form.
6. Whether such Book-Entry Note
represents any other Notes
issued or to be issued in
book-entry form.
D. To the extent the Company has not
already done so, the Company will
deliver to the Trustee a Book-Entry
Note representing such Note issued
in book-entry form in a form that
has been approved by the Company,
the Agents and the Trustee.
E. The Trustee will complete and
authenticate the Book-Entry Note
representing such Note issued in
book-entry form in accordance with
the terms of the written order of
the Company then in effect.
F. DTC will credit such Note issued in
book-entry form to the participant
account of the Trustee maintained
by DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note issued in book-entry form to
the Trustee's participant account
and credit such Note issued in
book-entry form to the participant
account of the Presenting Agent
maintained by DTC and (ii) to debit
the settlement account of the
Presenting Agent and credit the
settlement account of the Trustee
maintained by DTC, in an amount
equal to the price of such Note
issued in book-entry form less such
Agent's commission. The entry of
such a deliver order shall be
deemed to constitute a
representation and warranty by the
Trustee to DTC that (i) the Book-
Entry Note representing such Note
issued in book-entry form has been
duly issued and authenticated and
(ii) the Trustee is holding such
Book-Entry Note pursuant to the
Medium-Term Note Certificate
Agreement between the Trustee and
DTC.
H. The Presenting Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note issued in book-entry form to
the Presenting Agent's participant
account and credit such Note issued
in book-entry form to the
participant account of the
Participants maintained by DTC and
(ii) to debit the settlement
accounts of such Participants and
credit the settlement account of
the Presenting Agent maintained by
DTC, in an amount equal to the
price of such Note issued in book-
entry form.
I. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures G and H
will be settled in accordance with
SDFS operating procedures in effect
on the Settlement Date.
X. Subject to certain arrangements
between the Company and the
Trustee, the Trustee will credit to
an account of the Company
maintained at the Trustee funds
available for immediate use in the
amount transferred to the Trustee
in accordance with Settlement
Procedure G. However, the Trustee
need not credit the account of the
Company unless and until the
Trustee has confirmed receipt of
funds in the appropriate amount
transferred in accordance with
Settlement Procedure G.
K. The Presenting Agent will confirm
the purchase of such Note issued in
book-entry form to the purchaser
either by transmitting to the
Participant with respect to such
Note issued in book-entry form a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to
such purchaser.
Settlement For orders of Book-Entry Notes accepted
Procedures by the Company for settlement on the
Timetable: first Business Day after the trade date,
Settlement Procedures "A" through "K"
set forth above shall be completed as
soon as possible but not later than the
respective times (New York City time)
set forth below:
Settlement
Procedure Time
A-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business Day
before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:45 p.m. on Settlement Date
J-K 5:00 p.m. on Settlement Date
If a sale is to be settled more than one
Business Day after the trade date,
Settlement Procedures A, B, and C shall
be completed prior to the specified
times on the business day immediately
prior to the Settlement Date. In
connection with a sale that is to be
settled more than one Business Day after
the trade date, if the initial interest
rate for a Floating Rate Note issued in
book-entry form is not known at the time
that Settlement Procedure A is
completed, Settlement Procedures B and C
shall be completed as soon as such rates
have been determined, but no later than
11:00 a.m. and 2:00 p.m., New York City
time, respectively, on the second
Business Day before the Settlement Date.
Settlement Procedure I is subject to
extension in accordance with any
extension of Fedwire closing deadlines
and in the other events specified in the
SDFS operating procedures in effect on
the settlement date.
If settlement of a Note issued in book-
entry form is rescheduled or canceled,
the Trustee, upon obtaining knowledge
thereof, will deliver to DTC, through
DTC's Participant Terminal System, a
cancellation message to such effect by
no later than 2:00 p.m., New York City
time, on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to If the Trustee fails to enter an SDFS
Settle: deliver order with respect to a Note
issued in book-entry form pursuant to
Settlement Procedure G, the Trustee may
deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message
instructing DTC to debit such Note to
the participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note
representing such Note issued in book-
entry form that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes issued in book-
entry form represented by a Book-Entry
Note, the Trustee will mark such Book-
Entry Note "canceled", make appropriate
entries in its records and send such
canceled Book-Entry Note to the Company.
The CUSIP number assigned to such Book-
Entry Note shall, in accordance with
CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
If withdrawal messages are processed
with respect to a portion of the Notes
issued in book-entry form represented by
a Book-Entry Note, the Trustee will
exchange such Book-Entry Note for two
Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed and
shall be canceled immediately after
issuance and the other of which shall
represent the other Notes issued in
book-entry form previously represented
by the surrendered Book-Entry Note and
shall bear the CUSIP number of the
surrendered Book-Entry Note.
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such Note
issued in book-entry form by the
beneficial purchaser thereof (or a
person, including an indirect
participant in DTC, acting on behalf of
such purchaser), such Participants and,
in turn, the related Presenting Agent
may enter an order through DTC's
Participant Terminal System debiting the
Note issued in book-entry form to such
Presenting Agent's Participant Account
and crediting such Note issued in book-
entry form to the Participant Account of
the Trustee and shall notify the Trustee
and the Company thereof. Thereafter,
the Trustee (i) will immediately notify
the Company of such order and the
Company shall immediately transfer by
Fedwire to the Presenting Agent an
amount equal to the price of such Note
issued in book-entry form that was
credited to the account of the Company
maintained at the Trustee in accordance
with Settlement Procedure J, and (ii)
the Trustee will deliver the withdrawal
message and take the related actions
described in the preceding paragraph.
If such failure shall have occurred for
any reason other than default by the
applicable Presenting Agent to perform
its obligations hereunder or under the
Agreement, the Company will reimburse
such Agent on an equitable basis for its
loss of the use of funds during the
period when the funds were credited to
the account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any
actions in accordance with its SDFS
operating procedures then in effect. In
the event of a failure to settle with
respect to a Note issued in book-entry
form that was to have been represented
by a Book-Entry Note also representing
other Notes issued in book-entry form,
the Trustee will provide, in accordance
with Settlement Procedures D and E, for
the authentication and issuance of a
Book-Entry Note representing such
remaining Notes issued in book-entry
form and will make appropriate entries
in its records.
PART III: PROCEDURES FOR NOTES ISSUED IN CERTIFICATED FORM
Issuance: Each Certificated Note will be dated and
issued as of the date of its
authentication by the Trustee (or, in
the case of a sale to an Agent as
principal, as of the Time of Delivery
set forth in the relevant Terms
Agreement). Each Certificated Note
shall also bear an original issue date
(the "Original Issue Date"). The
Original Issue Date shall remain the
same for all Certificated Notes
subsequently issued upon transfer,
exchange or substitution of an original
Certificated Note regardless of their
dates of authentication.
Denominations: The Certificated Notes will be issued in
denominations of U.S. $25,000 and any
larger denomination that is an integral
multiple of $1,000 approved by the
Company. Any Certificated Notes
denominated other than in U.S. dollars
will be issuable in denominations as set
forth in such Certificated Notes.
Interest: Each Certificated Note will bear
interest in accordance with its terms.
Interest will begin to accrue on the
Original Issue Date of a Certificated
Note for the first interest period and
on the most recent interest payment date
to which interest has been paid for all
subsequent interest periods. Each
payment of interest shall include
interest accrued to, but excluding, the
date of such payment. Notwithstanding
the above, in the case of Floating Rate
Notes issued in certificated form that
reset daily or weekly, interest payments
shall include accrued interest from, and
including, the date of issue or from,
but excluding, the last date in respect
of which interest has been accrued and
paid, as the case may be, to and
including the fifteenth day prior to
each Interest Payment Date (the "Record
Date"), except that at maturity the
interest payable will include interest
accrued to, but excluding, the maturity
date. Interest payments in respect of
Fixed Rate Notes issued in certificated
form will be made semiannually on June
15 and December 15 of each year and at
maturity. However, the first payment of
interest on any Note originally issued
between a Record Date and an Interest
Payment Date will be made on the
Interest Payment Date following the next
succeeding Record Date. The Record Date
for any payment of interest shall be for
Fixed Rate Notes the last calendar day
of the month next preceding the
applicable Interest Payment Date and for
Floating Rate Notes the date 15 days
prior to the applicable Interest Payment
Date. Interest at maturity will be
payable to the person to whom the
principal is payable. The Calculation
Agent will advise the Trustee, the
Company and the Agents of each
determination of the interest rate
applicable to any Floating Rate Note
issued in certificated form promptly
after such calculation is made. FOR
ADDITIONAL PROVISIONS RELATING TO
FLOATING RATE NOTES ISSUED IN
CERTIFICATED FORM, SEE THE PROSPECTUS
SUPPLEMENT.
Payments of The Trustee will pay the principal
Principal and amount of each Certificated Note at
Interest: maturity, together with accrued interest
due at maturity upon presentment and
delivery of the Certificated Note to the
Trustee. Such payment will be made in
funds available for immediate use by the
Certificated Noteholder. Certificated
Notes presented to the Trustee at
maturity for payment will be canceled by
the Trustee and delivered to the
Company. The Trustee will debit the
Company's account with the Trustee for
the amount of such Certificated Notes.
All interest payments on a Certificated
Note, other than interest due at
maturity, will be made by checks drawn
on the Trustee and mailed by the Trustee
to the registered addresses of the
persons entitled thereto. To the extent
feasible, the Trustee will furnish
monthly to the Company a list of the
principal and interest payments in each
currency to be made on Certificated
Notes maturing in the next succeeding
month. The Trustee will be responsible
for withholding taxes on interest paid
as required by applicable law but shall
be relieved from any such responsibility
if it acts in good faith and in reliance
upon an opinion of counsel.
Settlement Settlement Procedures with regard to
Procedures: each sale of Certificated Notes shall be
as follows:
A. The Presenting Agent will advise
the Company by telephone of the
following settlement information
with regard to each Certificated
Note:
1. Exact name in which
Certificated Note is to be
registered (the "Registered
Owner").
2. Exact address or addresses of
the Registered Owner for
delivery, notices and payments
of principal and interest.
3. Taxpayer identification number
of the Registered Owner.
4. Principal amount purchased.
5. Denomination of the
Certificated Notes.
6. Agent's commission or
discount, as applicable.
7. Settlement Date.
8. Maturity date.
9. Fixed Rate Notes issued in
certificated form:
a) interest rate.
Floating Rate Notes issued in
certificated form:
a) interest rate basis;
b) initial interest rate;
c) spread, if any;
d) interest reset dates and
period;
e) interest payment dates
and period;
f) index maturity;
g) maximum and minimum
interest rates, if any;
h) spread multiplier, if
any;
i) interest determination
date; and
j) the Calculation Agent.
10. Price paid by purchaser and
net proceeds to the Company.
11. Trade date.
B. The Company, through an authorized
representative of the Company, will
advise the Trustee by facsimile
transmission or other method
acceptable to the Trustee of the
above settlement information
received from an Agent and will
cause the Trustee to issue,
authenticate and deliver
Certificated Notes in accordance
with the terms of the written order
of the Company then in effect.
C. The Trustee will complete the
preprinted 4-ply Certificated Note
packet containing the following
documents in forms approved by the
Company, the Agents and the
Trustee:
1. Note with Agent's customer
confirmation.
2. Stub 1 (for Trustee's
records).
3. Stub 2 (for Agent's records).
4. Stub 3 (for Company's
records).
D. With respect to each trade, the
Trustee will deliver the
Certificated Notes and Stubs 1 and
2 thereof to the Agents at the
following address: Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx
Incorporated, Money Market
Clearance-MTNs, NSCC-NY Window, 00
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xx
Xxxxxxxx, Operations; X.X. Xxxxxx
Securities Inc., NSCC-NY Window, 00
Xxxxx Xxxxxx - Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 10041, Attention:
Xxxx Xxxxx; UBS Securities LLC, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx X.
Xxxxxxx; Xxxxx Securities Inc., 00
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Room
226, Window 17 or 18; or Salomon
Brothers Inc, c/o Bank of New York,
Xxx Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 10005, Attention:
Dealer Clearance. The Presenting
Agent will acknowledge receipt of
the Certificated Note through a
broker's receipt, will keep Stub 2
and will return Stub 1 to the
Trustee. Delivery of the
Certificated Note will be made only
against such acknowledgment of
receipt and payment, at a later
time (but on the same day), to the
Company of immediately available
funds. Prior to the first
settlement date, the Company shall
have sent a letter to Xxxxxxx Xxxxx
Clearance Operations, X.X. Xxxxxx
Securities Inc., UBS Securities
LLC, Chase Securities Inc. or
Salomon Brothers Inc, as the case
may be, containing standard wire
instructions for the net proceeds
of each Certificated Note,
addressed as follows: Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated, Money Market
Clearance-MTNs, NSCC-NY Window, 00
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 10041, Attention: Xx
Xxxxxxxx; X.X. Xxxxxx Securities
Inc., NSCC-NY Window, 00 Xxxxx
Xxxxxx - Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxx;
UBS Securities LLC, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-
0000, Attention: Xxxxxxx X.
Xxxxxxx; Xxxxx Securities Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Medium-Term Note
Desk; or Salomon Brothers Inc, c/o
Bank of New York, Xxx Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Dealer
Clearance.
E. The Presenting Agent will deliver
the Certificated Note (with
confirmations) as well as a copy of
the Prospectus, Prospectus
Supplement and Pricing Supplement
received from the Company to the
customer against payment of an
amount equal to the principal
amount of the Certificated Note in
immediately available funds. In
all cases, the Prospectus,
Prospectus Supplement and Pricing
Supplement must accompany or
precede written confirmation of the
sale of the Certificated Notes and
delivery of the Certificated Notes.
F. The Trustee will send by mail Stub
3 to the Company's Corporate
Treasurer's Department.
Settlement For offers accepted by the Company,
Procedures Settlement Procedures "A" through "F"
Timetable for set forth above shall be completed on or
Purchases before the respective times set forth
through Agents: below:
Settlement
Procedure Time
A-B 3:00 PM on Business Day prior
to settlement
C-D 2:15 PM on Settlement Date
E 3:00 PM on Settlement Date
F 5:00 PM on Settlement Date
Failure of In the event that a purchaser of a
Purchaser to Certificated Note from the Company shall
Accept Delivery either fail to accept delivery of or
or Make make payment for a Certificated Note on
Payment: the date fixed for settlement, the
Presenting Agent with which the order
for the purchase of such Certificated
Note was placed will forthwith notify
the Trustee and the Company's Corporate
Treasurer's Department by telephone,
confirmed in writing, of such failure
and return the Certificated Note to the
Trustee.
Upon receipt of the Certificated Note
from the Agent, the Trustee will
immediately advise the Company and the
Company will promptly arrange to credit
the account of the Presenting Agent in
an amount of immediately available funds
equal to the amount, if any, previously
paid by such Agent in settlement for the
Certificated Note. Such debits and
credits will be made on the Settlement
Date, if possible, and in any event not
later than the Business Day following
such date. If such failure shall have
occurred for any reason other than
default by such Agent in the performance
of its obligations hereunder or under
the Agreement, the Company will
reimburse such Agent on an equitable
basis for its loss of the use of the
funds during the period when the funds
were credited to the account of the
Company. Immediately upon receipt of
the Certificated Note in respect of
which the failure occurred, the Trustee
will cancel and destroy the Certificated
Note, make appropriate entries in its
records to reflect the fact that the
Certificated Note was never issued, and
accordingly notify in writing the
Company.
EXHIBIT C
FOREIGN CURRENCY AMENDMENT
(Insert Title of Foreign Currency or Currency
Unit to be Covered by this Amendment)
The undersigned hereby agree that for the purposes
of the issue and sale of Notes denominated in [title of
currency or currency unit] (the "Applicable Foreign
Currency") pursuant to the Distribution Agreement, dated
July 25, 1997 (the "Distribution Agreement"), the following
additions and modifications shall be made to the
Distribution Agreement. The additions and modifications
adopted hereby shall be of the same effect for the sale
under the Distribution Agreement of all Notes denominated in
the Applicable Foreign Currency, whether offered on an
agency or principal basis, but shall be of no effect with
respect to Notes denominated in any currency other than the
Applicable Foreign Currency.
Except as otherwise expressly provided herein, all
terms used herein that are defined in the Distribution
Agreement shall have the same meanings as in the
Distribution Agreement. The term[s] Agent [or Agents], as
used in the Distribution Agreement, shall be deemed to refer
[only] to the undersigned Agent[s] for purposes of this
Amendment.
[Insert appropriate additions and modifications to
the Distribution Agreement, for example, to opinions of
counsel, conditions to obligations and settlement
procedures, according to the customary practice of the Agent
[or Agents] when acting as underwriters in offerings
denominated in the Applicable Foreign Currency.]
____________, 199_
BENEFICIAL CORPORATION
By_________________________
Name:______________________
Title:_____________________
[Name of Agent(s) participating in the
offering of Notes in the Applicable
Foreign Currency]
BENEFICIAL CORPORATION
By_________________________
Name:______________________
Title:_____________________
