EXHIBIT 1B
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series F
DISTRIBUTION AGREEMENT
April ___, 1998
[Initial Purchasers]
Ladies and Gentlemen:
AT&T Capital Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time up to U.S. $5,000,000,000 (or the
equivalent thereof in other currencies or currency units) aggregate principal
amount of its Medium-Term Notes, Series F (the "Notes"), as such amount shall be
reduced by the aggregate principal amount of any other debt securities and the
aggregate purchase price of any warrants issued by the Company, whether within
or without the United States (the "Other Securities"), pursuant to the
Registration Statement discussed in Section II hereof, or otherwise. The Notes
are to be issued under an Indenture dated as of April 1, 1998, as amended (the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"). The Notes will be represented by either a global security registered
in the name of a nominee of The Depository Trust Company (the "Depositary"), as
Depositary (a "Book-Entry Note"), or a certificate issued in definitive form (a
"Certificated Note"), as selected by the purchaser and agreed to by the Company
and specified in the applicable pricing supplement. Beneficial interests in
Book-Entry Notes will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary and its participants. Book-Entry
Notes will not be issuable in definitive form, except under the circumstances
described in the applicable prospectus supplement. The Notes shall be issued in
the currency or currency unit (the "Specified Currency") and shall have the
maturity ranges, annual interest rate (whether fixed or floating), redemption
provisions, repayment provisions and other terms set forth in the Prospectus
referred to below as it may be supplemented from time to time, including any
applicable pricing supplement (the "Pricing Supplement").
I.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes (a) directly to investors
on its own behalf or (b) through other agents, dealers or underwriters, the
Company hereby (i) appoints [Initial Purchasers] (each, an "Agent", and
collectively, the "Agents") to act as its agents to solicit orders for, and to
sell, all or part of the Notes during a period beginning on the date hereof and
ending when the Notes have been sold, or such other time as the Company may
specify to you in writing, and (ii) agrees that whenever the Company determines
to sell Notes directly to any of the Agents as principal
for resale to others it will enter into a Terms Agreement relating to such sale
in accordance with the provisions of Section I(b) hereof.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent, severally and not jointly, will use its reasonable best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. As soon as practicable, but in any
event not later than one business day after receipt of notice from the Company,
the Agents will suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised them that such solicitation
may be resumed.
Unless otherwise agreed between the Company and the Agents, the
Company agrees to pay each Agent, as consideration for soliciting the sale of
any Notes, a commission in the form of a discount equal to the following
percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
---- ---------------
From 9 months to 13 months .050%
More than 13 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 .450%
More than 5 years to 6 years .500%
More than 6 years to 7 years .550%
More than 7 years to 10 years .600%
More than 10 years to 15 years .625%
More than 15 years to 20 years .700%
More than 20 years to 30 years .750%
The commission payable by the Company to the Agents with respect to notes with
maturities greater than 30 years will be negotiated at the time the Company
issues such Notes. Each Agent is authorized to solicit offers to purchase Notes
only in principal amounts that are integral multiples of U.S. $1,000 or, if
denominated in a Specified Currency other than U.S. dollars, then in principal
amounts that are integral multiples of 1,000 units of such Specified Currency.
Each Agent shall communicate to the Company, orally or in writing, each
reasonable offer received by it to purchase Notes. The Company shall have the
sole right to accept offers to purchase Notes and may reject any such offer in
whole or in part. Each Agent shall have the right to reject, in its
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discretion reasonably exercised, any offer received by it to purchase the Notes
in whole or in part, and any such rejection shall not be deemed a breach of its
agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to an Agent, as
principal, shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which shall be either (i) substantially in the form of Exhibit A hereto and may
take the form of an exchange of any standard form of written telecommunication
between such Agent and the Company or (ii) an oral agreement) is herein referred
to as a "Terms Agreement." Any oral agreement entered into pursuant to the
preceding sentence shall be confirmed promptly in writing. Any written
confirmation containing the terms of such an oral agreement delivered or
transmitted by the Agent to the Company shall constitute an agreement between
such Agent and the Company unless the Company objects thereto in writing within
one business day. An Agent's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Notes, the Specified Currency in which
such Notes shall be denominated, on which interest is to be paid and in which
the redemption or repayment price, if any, is to be paid, the rate at which
interest will be paid on the Notes, whether such rate of interest shall be fixed
or floating and the time and place of delivery of any payment for such Notes
(the "Settlement Date"). Such Terms Agreement shall also specify any
requirements for opinions of counsel and letters from the Company's independent
accountants pursuant to Section III hereof and may also contain additional
provisions relating to defaults by underwriters and other provisions relating to
termination as may be agreed at the time between the Company and the applicable
Agent. The Company agrees that if an Agent purchases Notes as principal for
resale, such Agent shall receive such compensation, in the form of a discount or
otherwise, as shall be indicated in the applicable Terms Agreement or, if no
compensation is indicated therein, a commission in accordance with the schedule
set forth in subsection (a) of this Section I.
(c) Procedures. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Medium-Term Notes, Series F, Administrative Procedures (attached hereto
as Exhibit B) (the "Procedures"), as amended from time to time. The Procedures
may be amended only by written agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by Section III of
this Agreement shall be delivered on the date hereof or at such other time as
you and the Company may agree upon in writing (each a "time of closing").
(e) Other Securities. The Company agrees to notify each Agent of sales
by the Company of the Other Securities.
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II.
The Company represents and warrants to each Agent that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus relating to
debt securities and warrants of the Company, including the Notes, which has
become effective under the Securities Act of 1933 (the "Act"), and has filed or
will file with, or has delivered or will deliver for filing to, the Commission a
prospectus supplement specifically relating to the Notes pursuant to Rule 424
under the Act. The term "Registration Statement" means such registration
statement as amended to the date hereof, together with such prospectus
supplement as amended to the date hereof. The term "Basic Prospectus" means the
prospectus, as amended, included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
or supplements specifically relating to the Notes, as filed with, or delivered
for filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means any preliminary prospectus supplement specifically relating to
the Notes together with the Basic Prospectus. As used herein, Registration
Statement, Basic Prospectus, Prospectus, and preliminary prospectus shall
include in each case the material, if any, incorporated by reference therein.
(b) (i) Each part of the Registration Statement relating to the Notes,
filed with the Commission pursuant to the Act, when such part became effective,
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) each Prospectus, if any, relating to any Notes,
filed pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations of the
Commission thereunder, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Registration
Statement and the Prospectus do not and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon written information
furnished to the Company by or on behalf of any Agent specifically for inclusion
therein or as to any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference in the
Prospectus complied when filed with the Commission in all material respects with
the provisions of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), together with the applicable instructions, rules and regulations of the
Commission thereunder, and each document, if any, hereafter filed under the
Exchange Act and so incorporated by reference in the Prospectus
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will comply when so filed in all material respects with the requirements of such
Exchange Act, instructions, rules and regulations.
(d) The accountants who have certified or shall certify the financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are public or certified accountants,
independent with respect to the Company, as required by the Act and the rules
and regulations of the Commission thereunder.
(e) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company and constitute the valid and
binding agreements of the Company except as rights to indemnification and
contribution hereunder may be limited by applicable law.
(f) (i) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms (except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general equity
principles); (ii) the Notes have been validly authorized for issuance and sale
pursuant to this Agreement and, when the terms of a particular Note and of its
issuance and sale have been duly established in accordance with the Indenture
and this Agreement, and when such Note has been duly executed, authenticated,
delivered and paid therefor as provided in this Agreement and the Indenture,
such Note will be validly issued and outstanding, and will constitute the valid
and binding agreement of the Company entitled to the benefits of the Indenture
and enforceable in accordance with its terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general equity
principles); (iii) each of the Operating Agreement, the Intercompany Agreement,
the Tax Agreements and the License Agreement (each between the Company and AT&T
Corp. and dated as of June 25, 1993) have been duly authorized, executed and
delivered by the Company and constitutes the valid and legally binding agreement
of the Company; and (iv) the Notes and the Indenture conform to the descriptions
thereof contained in the Prospectus.
(g) Each of the Company and each of its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of its
respective jurisdiction of incorporation, is duly qualified to do business and
in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective businesses
requires such qualification (except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole), and has the power and authority
necessary to own or hold its respective properties and to conduct the businesses
in which it is engaged, as described in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in violation of
its corporate charter or bylaws or in default under any agreement, indenture or
instrument, the effect
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of which violation or default would be material to the Company and its
subsidiaries taken as a whole.
(i) The execution, delivery and performance of this Agreement and any
applicable Terms Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any if its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets, the effect of which breach, violation or default would be
material to the Company and its subsidiaries taken as a whole; and except for
the registration of the Notes under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase or distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution and delivery by the
Company of, compliance by the Company with the provisions of, or consummation of
the transactions contemplated by, this Agreement and any Terms Agreement, except
to the extent that the effect of the failure to obtain such consent, approval,
authorization or order or to make such filing or registration would not be
material to the Company and its subsidiaries taken as a whole.
(j) The Company is not and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the Investment
Company Act of 1940, as amended.
III.
The obligations of each Agent hereunder and under any Terms Agreement
are subject to the following conditions:
(a) At the time of closing and at each Settlement Date with respect to
any Terms Agreement, the Indenture shall be qualified under the Trust Indenture
Act and no stop order suspending the effectiveness of the Registration Statement
as amended from time to time, shall be in effect, no proceedings for that
purpose shall be pending before, or threatened by, the Commission, and at the
time of closing each Agent shall have received, and at each Settlement Date with
respect to any Terms Agreement, if called for by such Terms Agreement, the Agent
which is a party thereto shall have received, a certificate, dated the time of
closing or such applicable Settlement Date and signed by the President, a Vice
President or the Treasurer of the Company to the effect that no such stop order
is in effect and, to the knowledge of the Company, no proceedings for such
purpose are pending before, or threatened by, the Commission.
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(b) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from counsel for the Company, to the effect that
(i) The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware, is duly qualified
to do business and in good standing as a foreign corporation in all
jurisdictions in which its ownership or leasing of properties or the
conduct of its businesses requires such qualification (except where the
failure to so qualify or be in good standing would not have a material
adverse effect upon the Company and its subsidiaries taken as a whole), and
has all power and authority necessary to own its respective properties and
conduct the businesses in which it is engaged, as described in the
Prospectus;
(ii) The issue and sale of the Notes by the Company and the compliance
by the Company with all the provisions of this Agreement, (and, if the
opinion is being given on account of the Company having entered into a
Terms Agreement, the applicable Terms Agreement) and the Indenture, and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets (except for such
conflicts, breaches, violations and defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole); and,
except for the registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase or distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution and delivery
by the Company of, compliance by the Company with the provisions of, or the
consummation of the transactions contemplated by this Agreement and any
applicable Terms Agreement, except to the extent that the effect of the
failure to obtain such consent, approval, authorization, qualification or
order or to make such filing or registration would not be material to the
Company and its subsidiaries taken as a whole;
(iii) The Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act and is a valid
and binding agreement of the Company enforceable in accordance with its
terms (except as enforcement thereof
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may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equity principles);
(iv) The Notes are in a form contemplated by the Indenture and have been
duly authorized by all necessary corporate action and (other than in the
case of an opinion delivered at a Settlement Date) when the terms of a
particular Note and of its issuance and sale have been duly established in
accordance with the Indenture and this Agreement so as not to violate any
applicable law or agreement or instrument then binding on the Company, and
when such Note has been duly executed and authenticated as specified in the
Indenture and delivered against payment therefor in accordance with this
Agreement, such Note will be a valid and binding agreement of the Company
enforceable in accordance with its terms (except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general equity principles), and entitled to the benefits of the Indenture;
(v) The Registration Statement has become effective under the Act and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the Commission;
(vi) The statements made in the Prospectus under the captions
"Description of the Debt Securities", "Description of Medium-Term Notes,
Series F" and "Plan of Distribution", insofar as such statements constitute
summaries of the legal matters, documents or proceedings specifically
referred to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(vii) This Agreement (and, if the opinion is being given on account of
the Company having entered into a Terms Agreement, the applicable Terms
Agreement) has been duly authorized, executed and delivered on behalf of
the Company and is valid and binding on the Company, except as rights to
indemnification and contribution hereunder may be limited under applicable
law; and
(viii) Except as to financial statements and schedules contained
therein, as to which such counsel is not called upon to express any opinion
or belief, (A) each document or portion thereof incorporated by reference
in the Registration Statement and the Prospectus complied when filed with
the Commission as to form in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (B) each part of the Registration Statement filed with the
Commission, when it became effective, complied as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder, (C) the Registration Statement
and the Prospectus, as amended or supplemented, if applicable, comply, and
at the date of this Agreement complied, as to
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form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder, (D) the
Registration Statement, as of its effective date, did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (E) the Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from Sidley & Austin, special tax counsel to the Company, an opinion confirming
as correct in all material respects the opinion of such counsel expressed or
referred to under "Material Federal Income Tax Consequences" in the Prospectus.
(d) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement, the Agent which is a party thereto shall have received,
from Xxxxxxxx & Xxxxxxxx, an opinion or opinions with respect to the
incorporation of the Company, the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Agents or such Agent
may require, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling such counsel to pass upon such
matters.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as amended and supplemented to the
time of closing, date of acceptance by the Company of an offer to purchase Notes
or date of a Terms Agreement, as the case may be, there shall not have been (i)
any material adverse change in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus, as amended and supplemented to such
time of closing, date of acceptance by the Company or date of such Terms
Agreement, or (ii) any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act or any public announcement that any such organization has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities; the representations and warranties of the Company
herein shall be true at the time of closing, each date of acceptance by the
Company of an offer to purchase Notes and at each Settlement Date with respect
to any Terms Agreement; the Company shall not have failed, at or prior to the
time of closing, such date of acceptance by the Company of an offer to purchase
Notes or such applicable Settlement Date, to have performed all agreements
herein contained which should have been performed by it at or prior to such
time; and each Agent shall have received at the time of closing, and the Agent
which is a party to any Terms Agreement shall have received at each Settlement
Date with respect to any such Terms Agreement, a certificate to the foregoing
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effect dated the day of the closing and signed by the President, a Vice
President or the Treasurer of the Company.
(f) At or prior to the time of closing each Agent shall have received,
and at each Settlement Date with respect to any Terms Agreement, if called for
by such Terms Agreement the Agent which is party thereto shall have received,
executed copies of a letter from the Company's independent accountants addressed
to the Company and to each Agent, if delivered at the time of closing, or to the
Company and the applicable Agent if delivered in connection with any Terms
Agreement, dated as of the closing date or the Settlement Date, as appropriate,
to the effect that (i) they are independent public accountants as required by
the Act and the applicable published rules and regulations of the Commission
thereunder; (ii) the audited financial statements contained in or incorporated
by reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act and the
applicable published rules and regulations of the Commission thereunder; and
(iii) nothing has come to their attention as the result of specified procedures
not constituting an audit that caused them to believe (A) that the unaudited
financial statements, if any, contained in or incorporated by reference as
aforesaid, do not so comply and are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements contained as aforesaid,
(B) that there was any change in the capital stock or long or intermediate term
debt of the Company, or any decrease in net assets, from the date of the latest
balance sheet which is contained in or incorporated by reference in the
Registration Statement as aforesaid to a date not more than five days prior to
the date of such letter or (C) that there were any decreases, as compared with
the corresponding period in the preceding year, in total revenues, income before
interest deductions or net income from the date of the latest figures for such
items contained in the Registration Statement to the date of the latest
available financial statements of the Company; provided, that with respect to
any of the items specified in clause (iii), such letter may contain an exception
for matters which the Registration Statement discloses have occurred or may
occur; and provided further, that the letter may vary from the requirements
specified in this subparagraph in such manner as may be acceptable to each Agent
if delivered at the time of closing or the applicable Agent if delivered in
connection with a Terms Agreement.
In case, at the time of closing, and at each Settlement Date with
respect to any Terms Agreement, any of the conditions specified above in this
Article III shall not have been fulfilled, this Distribution Agreement may be
terminated by the Agents, if such failure occurs at the time of closing, or such
Terms Agreement may be terminated by the applicable Agent, if such failure
occurs at a Settlement Date with respect to such Terms Agreement, in each case
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party.
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IV.
The obligation of the Company to deliver the Notes upon payment therefor
shall be subject to the following conditions: at the time of closing, and at
each Settlement Date with respect to any Terms Agreement, the Indenture shall be
qualified under the Trust Indenture Act and no stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
be in effect and no proceedings for this purpose shall then be pending before,
or threatened by, the Commission.
In case the conditions specified above in this Article IV shall not have
been fulfilled, this Agreement may be terminated by the Company by delivering
written notice of termination to the Agents, if such failure occurs at the time
of closing, or such Terms Agreement may be terminated by the Company by
delivering written notice of termination to the applicable Agent, if such
failure occurs at a Settlement Date with respect to such Terms Agreement;
Any such termination shall be without liability of any party to any
other party.
V.
In further consideration of your agreements herein contained with
respect to any Notes, the Company covenants and agrees as follows:
(a) To furnish each of you, without charge, a copy of the Registration
Statement, including exhibits and materials, if any, incorporated by reference
therein and, during the period mentioned in paragraph (d) below, as many copies
of the Prospectus, relating to such Notes, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request. The terms "supplement," and "amendment" or "amend" as used
in this Agreement shall include all documents filed by the Company with the
Commission subsequent to the date of the Basic Prospectus pursuant to the
Exchange Act which are deemed to be incorporated by reference in the Prospectus.
(b) To advise each of you promptly (confirming such advice in writing)
of any official request made by the Commission for an amendment to the
Registration Statement or Prospectus or for additional information with respect
thereto and of any official notice of the institution of proceedings for, or of
the entry of, a stop order suspending the effectiveness of the Registration
Statement. The Company will use its best efforts to prevent the issuance of any
such stop order, and, if such a stop order should be entered, the Company will
make every reasonable effort to obtain the lifting or removal thereof as soon as
possible.
(c) Not to file any amendment or supplement to the Registration
Statement or the Prospectus with respect to the Notes of which you shall not
previously have been advised or which shall be disapproved by Xxxxxxxx &
Xxxxxxxx, your counsel, and not to file any document pursuant to the Exchange
Act which is deemed to be incorporated by reference in the Prospectus of which
Xxxxxxxx & Xxxxxxxx shall not previously have been advised.
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(d) If, during such period after the first date of the public offering
of such Notes as in the opinion of Xxxxxxxx & Xxxxxxxx, your counsel, the
Prospectus relating to such Notes is required by law to be delivered, any event
shall occur as a result of which it is necessary to amend or supplement such
Prospectus in order to make the statements therein, in the light of the
circumstances when such Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement such Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to each of you, either
amendments or supplements to such Prospectus so that the statements in such
Prospectus as so amended or supplemented will not, in the light of the
circumstances when such Prospectus is delivered to a purchaser, be misleading or
so that such Prospectus will comply with law.
(e) To use its best efforts to qualify the Notes, or to assist in the
qualification of the Notes by or on behalf of each of you, for offer and sale
under the securities or Blue Sky laws of such jurisdictions as each of you may
reasonably request, and to pay all expenses with respect thereto (including
counsel fees), provided that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction, or to incur or to pay any such expenses if no Notes are delivered
to and purchased by any Agent by reason of an Agent's default in making payment
for the Notes.
(f) To cause to be made generally available to its security holders as
soon as practicable an earning statement or statements which shall meet the
requirements of Section II(a) of the Act and Rule 158 promulgated thereunder
covering a period of twelve months which shall begin not later than the closing
date of the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement with respect to
each sale of Notes.
(g) To apply the proceeds from the sale of the Notes as set forth under
the heading "Use of Proceeds" appearing in the Prospectus.
(h) Each acceptance by the Company of an offer for the purchase of
Notes, and each sale of Notes to the applicable Agent pursuant to a Terms
Agreement, 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 sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his agent, or the applicable Agent, of the Notes relating to
such acceptance or 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).
(i) Each time the Registration Statement or the Prospectus is amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates (excluding any change in the formula by which such
interest rate may be determined) or maturities offered on the Notes or for a
change deemed immaterial in the
-12-
reasonable opinion of the Agents), or if the Company sells Notes to an Agent
pursuant to a Terms Agreement, and if so indicated in the applicable Terms
Agreement, the Company will deliver or cause to be delivered forthwith to each
Agent or, in the case of a sale of Notes pursuant to a Terms Agreement, to the
applicable Agent, a certificate of the Company signed by the President, a Vice
President or the Treasurer of the Company, dated the date of the effectiveness
of such amendment or filing or supplement or sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that the statements
contained in the certificates referred to in Sections III(a) and (e) that was
last furnished to the Agent (either pursuant to Sections III(a) and (e) or
pursuant to this Section V(i)) are true and correct 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 certificates, certificates of the same tenor as the
certificates referred to in Sections III(a) and (e) relating to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificates.
(j) Each time the Registration Statement or the Prospectus is amended or
supplemented, or if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement the Company shall furnish
or cause to be furnished forthwith to each Agent, or, in the case of a sale of
Notes pursuant to a Terms Agreement, to the applicable Agent, written opinions
of counsel and special tax counsel to the Company satisfactory to such Agent;
provided, however, that such opinions need not be furnished with respect to an
amendment or supplement (i) providing solely for a change in the interest rates
offered on the Notes (other than a change in the formula by which such interest
rate may be determined) or for a change deemed immaterial in the reasonable
opinion of such Agent, or (ii) setting forth or incorporating by reference
financial statements or other information as of and for a fiscal quarter,
unless, in the case of clause (ii) above, in the reasonable judgment of such
Agent, such financial statements or other information are of such a nature that
an opinion of counsel should be furnished; provided, further that such counsel
need not provide opinions regarding the content of such financial statements.
Any such opinion shall be dated the date of such amendment or supplement, in
form satisfactory to the Agent to whom such opinions will be delivered, and
shall be of the same tenor as the opinion referred to in Sections III(b) and (c)
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to such Agent may furnish
to such Agent a letter to the effect that such Agent may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance on such last opinion (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, or if so indicated in
the applicable Terms Agreement, the Company sells Notes to an Agent pursuant to
a Terms Agreement, the Company shall cause the Company's independent
-13-
accountants forthwith to furnish each Agent or, in the case of a sale of Notes
pursuant to a Terms Agreement, to the applicable Agent, a letter, dated the date
of the effectiveness of such amendment or the date of filing of such supplement,
or the date of such sale, as the case may be, in form satisfactory to the
Agents, of the same tenor as the letter referred to in Section III(f) with
regard to the amended or supplemental financial information included or
incorporated by reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter.
(l) Between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without your prior
consent, offer or sell, or enter into any agreement to sell, any debt securities
of the Company substantially similar to the Notes (other than the Notes that are
to be sold pursuant to such Terms Agreement and commercial paper in the ordinary
course of business), except as may otherwise be provided in any such Terms
Agreement.
(m) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and any applicable Terms Agreement, including:
(i) the preparation and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the
fees and disbursements of the Company's accountants and of the Trustee and its
counsel, (iv) the qualification of the Notes under securities laws in accordance
with the provisions of Sections V(e), including filing fees and the reasonable
fees and disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky Memorandum and any Legal Investment
Memorandum, (v) the printing and delivery to you in quantities as herein above
stated of copies of the Registration Statement and all amendments thereto, and
of the Prospectus and any amendments or supplements thereto, (vi) the printing
and delivery to you of copies of the Indenture and any Blue Sky Memorandum and
any Legal Investment Memorandum, (vii) any fees charged by rating agencies for
the rating of the Notes, (viii) any advertising and other out-of-pocket expenses
incurred with the approval of the Company, provided, however, that the expenses
of any tombstone advertisement shall be paid by the Agents, and (ix) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc.
The Company shall also reimburse each Agent promptly upon receipt of an
invoice from such Agent for the reasonable fees of counsel for such Agent
incurred in connection with the offering and sale of the Notes (including the
reasonable fees and expenses of special counsel in any state in the event it
should become necessary to obtain opinions of such counsel as to usury or other
matters of local law in order to obtain or maintain the qualifications referred
to in Section V(e) hereof).
-14-
VI.
(a) The Company agrees to indemnify and hold each Agent, and each
person, if any, who controls such Agent within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, harmless from and against any and all
losses, claims, damages and liabilities with respect to the Notes or any other
securities of the Company or its subsidiaries arising because the Registration
Statement or any Preliminary Prospectus used in connection with the offering of
the Notes (if used within the period set forth in paragraph (d) of Article V
hereof and if used as amended or supplemented by all amendments or supplements
thereto which have been furnished to you) contained or is alleged to have
contained any untrue statement of a material fact or omitted or is alleged to
have omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, except as to losses, claims,
damages or liabilities caused by any such untrue statement or omission or
alleged untrue statement or omission made in reliance upon information furnished
to the Company herein or otherwise in writing by or on behalf of such Agent for
use in connection with the preparation of any Preliminary Prospectus, the
Registration Statement or any amendment or supplement thereto, or caused by any
statement in or omission from the Statement of Eligibility and Qualification of
the Trustee under the Indenture, provided that the indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of an Agent
(or to the benefit of any person controlling such Agent) on account of any
losses, claims, damages or liabilities arising from the sale of Notes to any
person if a copy of the Prospectus (as amended or supplemented by all amendments
or supplements thereto which have been furnished to such Agent, but without
documents incorporated by reference therein or exhibits) shall not have been
sent, mailed or given by or on behalf of such Agent to such person, if required
by the Act, at or prior to the written confirmation of the sale of such Notes to
such person.
(b) Each Agent agrees severally and not jointly to indemnify and hold
the Company, each of its directors, each of its officers who sign the
Registration Statement, and each person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, harmless
from and against any and all losses, claims, damages and liabilities, joint or
several, or any action in respect thereof arising because the Registration
Statement or any preliminary prospectus relating to the Notes or any amendment
or supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in the Registration Statement or any such
Preliminary Prospectus or any amendment or supplement thereto in reliance upon
information furnished to the Company herein or otherwise in writing by or on
behalf of such Agent for use in connection with the preparation thereof.
(c) The Company and each Agent agree that upon the commencement of any
action against it, its directors, its officers who sign the Registration
Statement, or any person controlling it as aforesaid in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the
-15-
commencement thereof to the party or parties against whom indemnity shall be
sought, but the omission so to notify such indemnifying party or parties of any
such action shall not relieve such indemnifying party or parties from any
liability which it or they may have to the indemnified party or parties
otherwise than on account of such indemnity agreement. In case of such notice of
any such action, the indemnifying party or parties shall be entitled to
participate at its or their own expense in the defense of such action, or, if it
or they so elect, to assume the defense of such action, and in the latter event
such defense shall be conducted by counsel chosen by such indemnifying party or
parties and satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them; but if
the indemnifying party or parties shall not elect to assume the defense of such
action, such indemnifying party or parties will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained by them.
In the event that the parties to any such action (including impleaded parties)
include both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to local counsel) for all
such indemnified parties, which firm shall be designated in writing by the Agent
who is a party to the proceeding or, if more than one Agent is party to the
proceedings, by mutual agreement of the Agents, or controlling persons are
indemnified parties and by the Company in the case of an action in which the
Company or any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by an indemnified party or parties
without prior written consent by the indemnifying party or parties to such
settlement.
(d) If the indemnification provided for in paragraph (a) or (b) above is
unavailable to an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect primarily the relative benefits received by the Company
on the one hand and each Agent on the other from the offering of the Notes and
also to reflect where appropriate the relative fault of the Company on the one
hand and of each Agent on the other in connection with the statements or
omissions or alleged statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and of each Agent shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or
-16-
alleged omission to state a material fact relates to information supplied by the
Company or by each Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this paragraph (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in this paragraph (d) shall be deemed to
include, subject to the limitation set forth above in this Article VI, any legal
or other expenses reasonably incurred by such indemnified party in connection
with defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes distributed by it were
offered to the public exceeds the amount of any damages which such Agent has
been required to pay, otherwise than pursuant to this paragraph (d), by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement or of any Terms Agreement hereunder, (ii) any investigation
made by any Agent or on its behalf or any person controlling any Agent or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Notes.
This Agreement and any Terms Agreement hereunder shall inure to the
benefit of the Company, its directors, its officers who sign the registration
statement, each Agent, or in the case of any such Terms Agreement, the
applicable Agent and each controlling person referred to in Article VI hereof
and their respective successors. Nothing in this Agreement or in any Terms
Agreement hereunder is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any Terms Agreement hereunder or any
provision herein or therein contained. The term "successor" as used in this
Agreement or any Terms Agreement hereunder shall not include any purchaser, as
such purchaser, of any of the Notes from an Agent.
The provisions of this Agreement relating to the solicitation of offers
to purchase Notes from the Company may be suspended or terminated at any time by
the Company as to any Agent or by any Agent insofar as this Agreement relates to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Notes already issued, agreed to
be issued or the subject of a pending offer at the time of such
-17-
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the third paragraph of Article I(a), Article
V(f), Article V(m) and Article VI are concerned.
-18-
This Agreement and any Terms Agreement may be executed in any number of
counterparts each of which shall be an original, with the same effect as of the
signatures thereto and hereto were upon the same instrument.
This Agreement and any Terms Agreement hereunder shall be governed by
and construed in accordance with the laws of the State of New York.
Very truly yours,
AT&T Capital Corporation
By
--------------------------------------------
Title: Treasurer
Accepted:
Xxxxxx Brothers Inc.
By
--------------------------
Title:
Xxxxxxx, Xxxxx & Co.
By
--------------------------
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By
--------------------------
Title:
Xxxxxx Xxxxxxx & Co. Incorporated
By
--------------------------
Title:
-19-
This Agreement and any Terms Agreement may be executed in any number of
counterparts each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement and any Terms Agreement hereunder shall be governed by
and construed in accordance with the laws of the State of New York.
Very truly yours,
AT&T Capital Corporation
By
-------------------------------------------
Title: Treasurer
Accepted:
Xxxxxx Brothers Inc.
By
--------------------------
Title:
Xxxxxxx, Xxxxx & Co.
By
--------------------------
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By
--------------------------
Title:
Xxxxxx Xxxxxxx & Co. Incorporated
By
--------------------------
Title:
-20-
EXHIBIT A
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series F
TERMS AGREEMENT
_________, 199__
AT&T Capital Corporation
Attention:
Re: Distribution Agreement dated April ___, 1998
The undersigned agrees to purchase the following principal amount of
your Medium-Term Notes, Series F:
Specified Currency as to:
Principal:
Interest:
Aggregate Principal Amount: [U.S. $] [other]
Price to Public:
[Provisions relating to redemption, if any:]
[Provisions relating to repayment, if any:]
If Fixed Rate Notes:
Interest Rate:
Maturity:
Amortization Schedule:
If Floating Rate Notes:*
Base Rate:
Initial Interest Date:
Interest Determination Date:
Interest Reset Date:
Interest Reset Period:
Record Date:
Interest Payment Dates:
Index Maturity:
----------------------
* See Prospectus Supplement dated April __, 1998 for explanation of terms.
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Indexed Currency or Currencies (if any):
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book-Entry or Certificated)
Purchase Price
Method of and Specified Funds for Payment of
Purchase Price: [By certified or
official bank check or checks, payable
to the order of the Company, in [New
York] Clearing House] [immediately
available) funds [By wire transfer to a
bank account specified by the Company in
[next day][immediately available] funds]
Provisions relating to underwriter default,
if any:
Other termination provisions, if any:
[The certificates referred to in Section V(i) of the Distribution
Agreement, the opinions referred to in Section V(j) of the Distribution
Agreement and the accountants letter referred to in Section V(k) of the
Distribution Agreement will be required.]
[ ]
By:
-------------------------------------
Accepted:
AT&T CAPITAL CORPORATION
By:
---------------------
-2-
EXHIBIT B
AT&T CAPITAL CORPORATION
Medium-Term Notes, Series 4, Administrative Procedures
Medium-Term Notes, Series 4 (the "Notes") are to be offered on a
continuous basis by AT&T Capital Corporation (the "Company"). Xxxxxx Brothers
Inc., Xxxxxxx, Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co. Incorporated (each, an "Agent", and
collectively, the "Agents"), have agreed to solicit purchases of the Notes. The
Agents will not be obligated to purchase Notes for their own accounts. The Notes
are being sold pursuant to a Distribution Agreement among the Company and each
Agent dated January 10, 1997 (the "Distribution Agreement"). The Notes will rank
equally with all other unsecured and unsubordinated debt of the Company and have
been registered with the Securities and Exchange Commission (the "Commission").
The Chase Manhattan Bank ("CMB") is the trustee (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"). Fixed Rate Notes may pay a level amount
in respect of both interest and principal amortized over the life of the Notes
("Amortizing Notes"). Each Note will be represented by either a Global Security
(as defined hereinafter) delivered to CMB as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Except in certain limited
circumstances or unless otherwise determined by the Company, an owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
a Note.
CMB will act as paying agent ("Paying Agent") for the payment of
principal of and premium, if any, and interest on the Notes and will perform, as
Paying Agent, unless otherwise specified, the other duties specified herein.
Book-Entry Notes will be issued in accordance with the administrative procedures
set forth in Parts I and II hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Parts I and III
hereof. Unless otherwise defined herein, terms defined in the Indenture shall be
used herein as therein defined.
Administrative procedures and specific terms of the offerings are
explained below.
-3-
PART VII.: Administrative Procedures for all Notes
Maturities: Each Note will have a maturity from
date of issue of not less than nine
months.
Price to Public: Each Note will be issued at 100% of
principal amount unless otherwise
specified in the applicable pricing
supplement.
Acceptance of Orders: The Company will have the sole
right to accept offers to purchase
Notes. Each Agent will promptly
advise the Company of each
reasonable offer to purchase Notes
received by it, and, if the Company
has not posted rates, the proposed
rate of interest on such Notes. The
Company may reject an offer in
whole or in part. Each Agent may
reject, in its discretion
reasonably exercised, any offer
received by it in whole or in part.
If the Company accepts an offer to
purchase a Note it will prepare a
pricing supplement reflecting the
terms of such Note and will, so
long as it is a participant in the
Commission's XXXXX program,
electronically submit a version of
such pricing supplement complying
with the rules of the Commission
relating to such program, or, if
the Company is no longer a
participant in such program,
arrange to have ten copies of such
pricing supplement filed with, or
mailed for filing to, the
Commission, in each case no later
than the second business day
following the date such offer is
accepted.
One copy of such filed document
will be sent by telecopy,
overnight, (express or special
delivery (for delivery as soon as
practicable following the trade,
but in no event later than 11:00
a.m. on the Business Day following
the applicable trade date) to the
selling Agent and the Trustee at
the following applicable address:
if to Xxxxxx Brothers Inc., by
telecopy to: Xxxxxx Brothers Inc.,
c/o ADP, Prospectus Services, 000
Xxxxxxxxxxx Xxxx,
-0-
Xxxxxxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxx, (000) 000-0000, telecopier:
(000) 000-0000, and by hand to: Xxxxxx
Brothers Inc., 3 World Financial
Center, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Xxxxxxx
Xxxxxxx, (000) 000-0000; if to
Xxxxxxx Xxxxx & Co, to Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, (212),902-8401, telecopier:
(000) 000-0000; if to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated via overnight, express
or special delivery packages only
to: Tritech Services, 00 Xxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Prospectus
Operations/Xxxxxxx Xxxxxxxxx, (908)
885-2768, telecopier: (908)
885-2774/75/76; if to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated via all other types of
deliveries, to: Tritech Services,
#4 Corporate Place, Corporate Park
287, Piscataway, New Jersey 08854,
Attention: Prospectus
Operations/Xxxxxxx Xxxxxxxxx, (908)
885-2768, telecopier: (908)
885-2774/75/76; if to Xxxxxx
Xxxxxxx Co. Incorporated, to:
Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxxx, MTN Trading Desk,
telecopier: (000) 000-0000; and if
to the Trustee, to: The Chase
Manhattan Bank, Corporate Trust
Administration, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx XxXxxxxxx, (212)
946-8567, telecopier: (212)
946-8567. For record keeping
purposes, one copy of each Pricing
Supplement, as so filed, shall also
be mailed or telecopied to:
Xxxxxxx, Sachs & Co., Registration
Department, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention:
Xxx Xxxxxx, (000) 000-0000,
telecopier: (000) 000-0000; and to
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, World Financial
Center, Xxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx
-5-
10281-1310, Attention: MTN Product
Management, telecopier: (212)
449-2234.
Outdated Pricing Supplements, and
the supplemented Prospectuses to
which they are attached (other than
those retained for files) will be
destroyed.
Procedure for
Rate Changes: The Company and the Agent will
discuss from time to time the
aggregate principal amount of, the
issuance price of, and the interest
rates to be borne by, Notes that
may be sold as a result of the
solicitation of orders by the
Agents. When a decision has been
reached to change the interest
rates of Notes being sold by the
Company, the Company will promptly
inform each Agent. Each Agent will
advise the Company with respect to
the changed rates. See "Acceptance
of Orders," above.
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents
to suspend solicitation of
purchases at any time. Upon receipt
of such instructions, the Agents
will forthwith suspend solicitation
until such time as the Company has
advised them that solicitation of
purchases may be resumed.
If the Company decides to amend or
supplement the Registration
Statement or the Prospectus
relating to the Notes, it will
promptly advise the Agents and the
Trustee, and will furnish the
Agents and the Trustee with the
proposed amendment or supplement in
accordance with the terms of the
Distribution Agreement. The Company
will file with the Commission any
supplement to the Prospectus
relating to the Notes including any
supplement which provides solely
for a change in the interest rates
offered on the Notes, provide the
Agents with sufficient quantities
of copies of any supplement within
a reasonable time prior to the
earlier of the delivery of written
confirmation of the sale of
-6-
Notes or the delivery of Notes to
any purchaser thereof, and confirm
to the Agents that such supplement
has been filed with the Commission.
In the event that at the time the
Company suspends solicitation of
purchases there shall be any orders
outstanding for settlement, the
Company will promptly advise the
Agents and the Trustee whether such
orders may be settled and whether
copies of the Prospectus as in
effect at the time of the
suspension may be delivered in
connection with the settlement of
such orders. The Company will have
the sole responsibility for such
decisions and for any arrangements
which may be made in the event that
the company determines that such
orders may not be settled or that
copies of such Prospectus may not
be so delivered.
Delivery of Prospectus: Each Agent shall, for each Note
order received by it, deliver a
copy of the Prospectus as most
recently amended or supplemented
(including the pricing supplement
relating to such Note) with the
earlier of the delivery or the
confirmation of sale of the Note to
a purchaser or such purchaser's
agent.
Payment of Selling
Commission and Expenses: The selling commission on each sale
of Notes will be calculated by the
applicable Agent and the applicable
Agent will deduct, for its own
account, the selling commission
from the proceeds of each such sale
of Notes. Each Agent will forward,
from time to time at its
discretion, an itemized statement
setting forth the aggregate amount
of out-of-pocket expenses incurred
by it in connection with the
offering and sale of the Notes,
which are reimbursable to it
pursuant to the terms of the
Distribution Agreement. The Company
will promptly remit payment to such
Agent.
Advertising: The Company will determine with
each Agent the form, substance and
amount of advertising
-7-
that may be appropriate in offering
the Notes. Advertising expenses
will be paid by the Company or
reimbursed to the Agents by the
Company; provided, however, that
the expenses of any tombstone
advertisement shall be paid by the
Agents.
PART VIII.: Administrative Procedures For Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, CMB 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 CMB to DTC dated as of the date hereof, and a Medium Term
Note Certificate Agreement between CMB and DTC, dated as of December 2, 1988,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of Settlement (as
defined under "Settlement" below)
for one or more Book-Entry Notes,
the Company will issue a global
security in fully registered form
without coupons (a "Global
Security") representing up to
$200,000,000 principal amount of
all such Notes that have the same
stated maturity, redemption or
repayment provisions, interest
payment dates, interest payment
period and original issue date,
and, in the case of Fixed Rate
Notes, interest rate and
amortization schedule (if any), or
in the case of Floating Rate Notes,
initial interest rate, base rate,
interest payment dates, index
maturity, interest reset period,
interest reset dates, spread or
spread multiplier, minimum interest
rate (if any), and maximum interest
rate (if any) (collectively
"Terms"). Each Global Security will
be dated and issued as of the date
of its authentication by the
Trustee, acting as Authenticating
Agent. No Global security will
represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or
(ii) any Certificated Note.
Identification Numbers: The Company has arranged with the
CUSIP Service Bureau of Standard
Poor's
-8-
Corporation (the "CUSIP Service
Bureau") for the reservation of a
series of CUSIP numbers (including
tranche numbers), which series
consists of approximately 900 CUSIP
numbers and relates to Global
Securities representing the
Book-Entry Notes. The Company has
obtained from the CUSIP Service
Bureau a written list of such
series of reserved CUSIP numbers
and has delivered to CMB and DTC a
written list of such reserved CUSIP
numbers of such series. The Company
will assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers
that the Company has assigned to
Global Securities. At any time when
fewer than 100 of the reserved
CUSIP numbers of the series remain
unassigned to Global Securities,
and if it deems necessary, the
Company will reserve additional
CUSIP numbers for assignment to
Global Securities. upon obtaining
such additional CUSIP numbers, the
Company shall deliver a list of
such additional CUSIP numbers to
CMB and DTC.
Registration: Global Securities will be issued
only in fully registered form
without coupons. Each Global
Security will be registered in the
name of CEDE & Co., as nominee for
DTC, on the security register
maintained under the Indenture by
CMB as Registrar. The beneficial
owner of a Book-Entry Note (or one
or more indirect participants in
DTC designated by such owner) will
designate one or more participants
in IDTC (with respect to such Note,
the "Participants") to act as agent
or agents for such owner in
connection with the book-entry
system maintained by DTC, and DTC
will record in book-entry form, in
accordance with instructions
provided by such Participants, a
credit balance with respect to such
beneficial owner in such Note
-9-
in the account of such
Participants. The ownership
interest of such beneficial owner
in such Note will be recorded
through the records of such
Participants or through the
separate records of such
Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will
be accompanied by book entries made
by DTC and, in turn, by
Participants (and in certain cases,
one or more indirect participants
in DTC) acting on behalf of
beneficial transferors and
transferees of such Note.
Exchanges: CMB may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice of consolidation
specifying (i) the CUSIP numbers of
two or more Outstanding Global
Securities that represent (A) Fixed
Rate Book-Entry Notes having the
same terms and for which interest
has been paid to the same date, or
(B) Floating Rate Book-Entry Notes
having the same terms and for which
interest has been paid to the same
date, (ii) a date, occurring at
least thirty days after such
written notice is delivered and at
least thirty days before the next
interest payment date for such
Book-Entry Notes, on which such
Global Securities shall be
exchanged for a single replacement
Global Security and (iii) a new
CUSIP number, obtained from the
Company, to be assigned to such
replacement Global Security. Upon
receipt of such a notice, DTC will
send to its participants (including
CMB) a written reorganization
notice to the effect that such
exchange will occur on such date.
Prior to the specified exchange
date, CMB will deliver to the CUSIP
Service Bureau a written notice
setting forth such exchange date
and the new CUSIP number and
stating that, as of such exchange
date, the CUSIP numbers of the
Global Securities to be exchanged
will no longer be valid. On the
specified exchange
-10-
date, CMB will exchange such Global
Securities for a single Global
Security bearing the new CUSIP
number and the CUSIP numbers of the
exchanged Global Securities will,
in accordance with CUSIP Service
Bureau procedures, be cancelled and
not immediately reassigned.
Notwithstanding the foregoing, if
the Global Securities to be
exchanged exceed $200,000,000 in
aggregate principal amount, one
Global Security will be
authenticated and issued to
represent each $200,000,000 of
principal amount of the exchanged
Global Security and an additional
Global Security will be
authenticated and issued to
represent any remaining principal
amount of such Global Securities
(see "Denominations" below).
Denominations: Book-Entry Notes will be issued in
principal amounts that are integral
multiples of $1,000. Global
Securities will be denominated in
principal amounts not in excess of
$200,000,000. If one or more
Book-Entry Notes having an
aggregate principal amount in
excess of $200,000,000 would, but
for the preceding sentence, be
represented by a single Global
Security, then one Global Security
will be issued to represent each
$200,000,000 principal amount of
such Book-Entry Note or Notes and
an additional Global Security will
be issued to represent any
remaining principal amount of such
Book-Entry Note or Notes. In such a
case, each of the Global Securities
representing such Book-Entry Note
or Notes shall be assigned the same
CUSIP number.
Interest: General. Interest on each
Book-Entry Note will accrue from
the original issue date or the last
date to which interest has been
paid, if any, on the Global
Security representing such Note.
Unless otherwise specified therein,
each payment of interest on a
Book-Entry Note will include
interest accrued to but excluding
the interest payment date (provided
-11-
that in the case of Floating Rate
Notes which reset daily or weekly,
interest payments will include
interest accrued to and including
the record date immediately
preceding the interest payment
date) or maturity date. Interest
payable at the maturity of a
Book-Entry Note will be payable to
the person to whom the principal of
such Note is payable. Standard &
Poor's Corporation will use the
information received in the pending
deposit message described under
Settlement Procedure "C" below in
order to include the amount of any
interest payable and certain other
information regarding the related
Global Security in the appropriate
weekly bond report published by
Standard & Poor's Corporation.
Record. The Record Date with
respect to any interest payment
date shall be the date fifteen
calendar days prior to such
interest payment date, whether or
not such date shall be a Business
Day.
Fixed Rate Book-Entry Notes. Unless
otherwise specified in the
applicable Pricing Supplement,
interest payments on Fixed Rate
Book-Entry Notes (other than
Amortizing Notes) will be made
semiannually on February 15 and
August 15 of each year and at
maturity, and, unless otherwise
specified in the applicable Pricing
Supplement, principal and interest
payments on Book-Entry Amortizing
Notes will be made semiannually on
February 15 and August 15 of each
year, or quarterly on February 15,
May 15, August 15 and November 15
of each year and at maturity;
provided, however, that in the case
of a Fixed Rate Book-Entry Note
issued between a Record Date and an
interest payment date or on an
interest payment date, the first
interest payment will be made on
the interest payment date following
the next succeeding Record Date to
the registered holder on such next
succeeding Record Date
-12-
of such Fixed Rate Book-Entry Note;
provided further, that if any
interest payment date falls on a
day that is not a Business Day, the
required payment of principal,
premium, if any, and/or interest
will be made on the next succeeding
Business Day as if made on the date
such payment was due, and no
interest will accrue on such
payment for the period from and
after such interest payment date to
the date of such payment on the
next succeeding Business Day.
Floating Rate Book-Entry Notes.
Unless otherwise specified in the
applicable Pricing Supplement,
interest payments will be made on
Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually,
or annually. Unless otherwise
agreed upon, interest will be
payable, in the case of Floating
Rate Book-Entry Notes with a
monthly interest payment period, on
the third Wednesday of each month;
with a quarterly interest payment
period, on the third Wednesday of
February, May, August and November
of each year; with a semi-annual
interest payment period on the
third Wednesday of the two months
specified pursuant to Settlement
Procedure "A", below; and with an
annual interest payment period, on
the third Wednesday of the month
specified pursuant to Settlement
Procedure "A" below; provided,
however, that if an interest
payment date for Floating Rate
Book-Entry Notes (other than the
maturity date) would otherwise be a
day that is not a Business Day such
interest payment date will be
postponed to the next succeeding
day that is a Business Day, except
that in the case of a LIBOR Note,
if such Business Day falls in the
next succeeding calendar month,
such interest payment date will be
the immediately preceding Business
Day. If the maturity date of a
Floating Rate Book-Entry Notes
falls on a day that is not a
Business Day, the required payment
of principal, premium, if any,
and/or
-13-
interest will be made on the next
succeeding Business Day as if made
on the date such payment was due,
and no interest shall accrue on
such payment for the period from
and after the Maturity Date to the
date of such payment on the next
succeeding Business Day. In the
case of a Floating Rate Book-Entry
Note issued between a Record Date
and an interest payment date, the
first interest payment will be made
on the interest payment date
following the next succeeding
Record Date to the registered
holder on such next succeeding
Record Date of such Floating Rate
Book-Entry Note.
Notice of Interest Payment and
Record Dates. On the first Business
Day of March, June, September and
December of each year, CMB will
deliver to the Company, the Trustee
and DTC a written list of Record
Dates and interest payment dates
that will occur with respect to
Book-Entry Notes during the
six-month period beginning on such
first Business Day.
Calculation of Interest: Fixed Rate Book-Entry Notes.
Interest on Fixed Rate Book-Entry
Notes (including interest for
partial periods) will be calculated
on the basis of a year of twelve
thirty-day months. (Examples of
interest calculations are as
follows: The period from August 15,
1991, to February 15, 1992, equals
6 months and 0 days, or 180 days;
the interest payable equals 180/360
times the annual rate of interest
times the principal amount of the
Note. The period from September 17,
1991, to February 15, 1992, equals
4 months and 28 days, or 148 days;
the interest payable equals 148/360
times the annual rate of interest
times the principal amount of the
Note.)
Floating Rate Book-Entry Notes.
Interest rates on Floating Rate
Book-Entry Notes will be determined
as set forth in the form of
-14-
Notes. Interest on Floating Rate
Book-Entry Notes will be calculated
on the basis of actual days elapsed
and a year of 360 days except that
in the-case of Treasury Rate Notes,
interest will be calculated on the
basis of the actual number of days
in the year.
Payments of
Principal and
Interest: Payment of Interest Only. Promptly
after each Record Date, CMB will
deliver to the Company, the Trustee
and DTC a written notice specifying
by CUSIP number the amount of
interest to be paid on each Global
Security (other than an Amortizing
Note) on the following interest
payment date (other than an
interest payment date coinciding
with maturity) and the total of
such amounts. DTC will confirm the
amount payable on each Global
Security on such Interest Payment
Date by reference to the
appropriate (daily or weekly) bond
reports published by Standard &
Poor's Corporation. In the case of
Amortizing Notes, CMB will provide
separate written notice to the
Company and to DTC of the principal
and interest due on such security
prior to each Interest Payment Date
at the time and in the manner set
forth in the Letter of
Representations. The Company will
pay to the Paying Agent, the total
amount of interest due on such
Interest Payment Date (and, in the
case of an Amortizing Note,
principal and interest) (other than
at maturity), and the Paying Agent
will pay such amount to DTC at the
times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity and on
Redemption or Repayment. On or
about the first Business Day of
each month, the Paying Agent will
deliver to the Company, the Trustee
and DTC a written list of principal
and interest to be paid on each
Global Security (other than an
Amortizing Note) maturing either at
stated maturity or on a redemption
or repayment date in the following
month. The Paying
-15-
Agent, the Company and DTC will
confirm the amounts of such
principal and interest payments
with respect to each such Global
Security on or about the fifth
Business Day preceding the maturity
of such Global Security. In the
case of Amortizing Notes, the
Paying Agent will provide separate
written notice of the principal and
interest due on such date to the
Company and to DTC prior to the
date of maturity and any redemption
or repayment date, as the case may
be, at the times and in the manner
set forth in the Letter of
Representations. The Company will
pay to the Paying Agent, the
principal amount of such Global
Security, together with interest
due at such maturity. The Paying
Agent will pay such amounts to DTC
at the times and in the manner set
forth below under "Manner of
Payment". if any stated maturity of
a Global Security representing
Book-Entry Notes is not a Business
Day, the payment due on such day
shall be made on the next
succeeding Business Day and no
interest shall accrue on such
payment for the period from-and
after such maturity. Promptly after
payment to DTC of the principal and
interest due at the maturity of
such Global Security, the Paying
Agent shall deliver such Global
Security to the Trustee which shall
cancel such Global Security in
accordance with the terms of the
Indenture and so advise the
Company. On the first Business Day
of each month, the Paying Agent
will deliver to the Trustee a
written statement indicating the
total principal amount of
outstanding Global Securities as of
the preceding Business Day.
Manner of Payment. The total amount
of any principal and interest due on
Global Securities on any interest
payment date or at maturity shall
be paid by the Company to the
Paying Agent in immediately
available funds as of 9:30 A.M.
(New York City time) on such
-16-
date. The Company will make such
payment on such Global Securities
by wire transfer to the Paying
Agent or by instructing the Paying
Agent to withdraw funds from an
account maintained by the Company
as Paying Agent. The Company will
confirm such instructions in
writing to Paying Agent. Prior to
10 A.M. (New York City time) on
each maturity date, redemption or
repayment, or as soon as possible
thereafter, following receipt of
such funds from the Company, the
Paying Agent will pay by separate
wire transfer (using Fed-wire
message entry instructions in a
form previously specified by DTC)
to an account at the Federal
Reserve Bank of New York previously
specified by DTC, in funds
available for immediate use by DTC,
each payment of principal (together
with interest thereon) due on a
Global Security on such date. On
each interest payment date (other
than at maturity), interest
payments and, in the case of
Amortizing Notes, interest and
principal payments shall be made to
DTC in funds available for
immediate use by DTC, in accordance
with existing arrangements between
the Paying Agent and DTC. On each
such date, DTC will pay, in
accordance with its SDFS operating
procedures then in effect, such
amounts in funds available for
immediate use to the respective
Participants in whose names the
Book-Entry Notes represented by
such Global Securities are recorded
in the book-entry system maintained
by DTC. Neither the Company (as
issuer or as Paying Agent), nor the
Paying Agent shall have any direct
responsibility or liability for the
payment by DTC to such Participants
of the principal or interest on the
Book-Entry Notes.
Withholding Taxes. The amount of
any taxes required under applicable
law to be withheld from any
interest payment on a Book-Entry
Note will be determined and
withheld by the
-17-
Participant, indirect participant
in DTC or other person responsible
for forwarding payments and
materials directly to the
beneficial owner of such Note.
Settlement: The receipt by the Company of
immediately available funds in
payment for a Book-Entry Note and
the authentication and issuance of
the Global Security representing
such Note shall constitute
"Settlement" with respect to such
Note. All orders accepted by the
Company will be settled on the
third Business Day pursuant to the
timetable for Settlement set forth
below unless the Company and the
purchaser agree to Settlement on
another day which shall be no
earlier than the next Business Day
following the date of sale.
Settlement
Procedures: Settlement Procedures with regard
to each Book-Entry Note sold by the
Company through an Agent, as agent,
shall be as follows:
(a) Such Agent will advise the Company
by telephone (and will confirm in
writing on the same date) of the
following settlement information:
(i) Principal amount.
(ii) Stated maturity.
(iii) In the case of a Fixed Rate
Book-Entry Note, the interest
rate and if such Note is an
Amortizing Note, the interest
rate and Amortization
Schedule, or in the case of
Floating Rate Book-Entry
Note, the initial interest
rate (if known at such time),
base rate, index maturity,
interest reset period,
interest reset dates, spread
or spread multiplier (if
any); minimum interest rate
(if any) and maximum interest
rate (if any), interest
payment
-18-
period and interest payment
dates and any other
information necessary to
complete such Note.
(iv) Redemption provisions, if
any.
(v) Repayment provisions, if any.
(vi) Settlement date.
(vii) Sale Date.
(viii) Price.
(ix) Agent's Commission,
determined as provided in
Section I(a) of the
Distribution Agreement
between the Company and such
Agent.
(x) Whether the Note is an
original issue discount note,
and if it is an original
issue discount note, the
total amount of original
issue discount ("OID"), the
yield to maturity and the
initial accrual period OID.
(xi) Net Proceeds to the Company.
(b) The Company will assign a CUSIP
number to the Global Security
representing such Note and then
advise CMB by telephone or
electronic transmission (confirmed
in writing at any time on the same
date) of the information set forth
in settlement Procedure "A" above,
such CUSIP number and the name of
such Agent. The Company will also
notify the Agent of such CUSIP
number by telephone as soon as
practicable. Each such
communication by the Company shall
constitute a representation and
warranty by the Company to CMB and
each Agent that (i) such Note is
then, and at the time of issuance
and sale thereof will be, duly
authorized for issuance and sale by
the Company, (ii) such
-19-
Note, and the Global Security
representing such Note, will
conform with the terms of the
Indenture pursuant to which such
Note and Global Security are issued
and (iii) upon authentication and
delivery of such Global Security,
the aggregate initial offering
price of all securities sold
pursuant to the Registration
Statement (as defined in the
Distribution Agreement) (including
the Notes) will not exceed $4
billion or the equivalent thereof
in one or more currencies (except
for securities represented by,
authenticated and delivered in
exchange for or in lieu of
securities pursuant to Sections
2.08 and 2.09 of the Indenture).
(c) CMB will enter a pending deposit
message through DTC's Participant
Terminal System, providing the
following settlement information to
DTC, such Agent and Standard &
Poor's Corporation:
(i) The information set forth in
Settlement Procedure "A".
(ii) Identification as a Fixed
Rate Book-Entry Note and
whether such Note is an
Amortizing Note (by an
appropriate notation in the
comments field of DTC's
Participant Terminal System)
or a Floating Rate Book-Entry
Note.
(iii) Initial interest payment date
for such Note, number of days
by which such date succeeds
the related Record Date
(which, in the case of
Floating Rate Notes which
reset daily or weekly, shall
for DTC purposes be the date
five calendar days
immediately preceding the
applicable Interest Payment
Date and, in the case of all
other Notes, shall he the
Record Date as defined in the
Note), and, if known,
-20-
the amount of interest
payable on such Interest
Payment Date.
(iv) The interest payment period.
(v) CUSIP number of the Global
Security representing such
Note.
(vi) The Participant account
numbers maintained by DTC on
behalf of the Agents and CMB.
(d) CMB will complete such Note, stamp
the appropriate legend as
instructed by the Company in
accordance with DTC procedures, if
not already set forth thereon, and
authenticate the Global Security
representing such Note.
(e) DTC will credit such Note to CMB's
participant account at DTC.
(f) CMB will enter an SDFS deliver
order through DTC's
ParticipantTerminal System
instructing DTC to (i) debit such
Note to CMB's participant account
and credit such Note to such
Agent's participant account and
(ii) debit such Agent's settlement
account and credit CMB's settlement
account for an amount equal to the
price of such Note less such
Agent's commission. The entry of
such a deliver order shall
constitute a representation and
warranty by CMB to DTC that (a) the
Global Security representing such
Book-Entry Note has been issued and
authenticated and (b) CMB is
holding such Global Security
pursuant to the Medium Term Note
Certificate Agreement between CMB
and DTC.
(g) Such Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
account and credit such
-21-
Note to the participant accounts of
the Participants with respect to
such Note and (ii) to debit the
settlement account of such
Participant and credit the
settlement account of such Agent
for an amount equal to the price of
such Note.
(h) Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "F" and
"G" will be settled in accordance
with SDFS operating procedures in
effect on the settlement date.
(i) CMB, upon confirming receipt of
such funds, will credit or wire
transfer to the account of the
Company maintained at The Chase
Manhattan Bank, New York, New York,
in funds available for immediate
use in the amount transferred to
CMB in accordance with Settlement
Procedure
(j) The Agent will confirm the purchase
of such Note to the purchaser
either by transmitting to the
Participants with respect to such
Note a confirmation order or orders
through DTC's institutional
delivery system or by mailing a
written confirmation to such
purchaser.
Settlement For orders of Book-Entry Notes
Procedures solicited by an Agent, as agent,
Timetable: and accepted by the Company for
Settlement on the first Business
Day after the sale date, Settlement
Procedures "A" through "J" set
forth above shall be completed as
soon as possible but no later than
the respective times (New York City
time) set forth below:
Settlement
Procedure: Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
c 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
-22-
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date,
Settlement Procedures "A", "B" and "C"
shall be completed as soon as
practicable but no later than 11:00
A.M., 12 Noon and 2:00 P.M.,
respectively on the first Business Day
after the sale date. If the initial
interest rate for a Floating Rate
Book-Entry Note has not been determined
at the time that Settlement Procedure
"A" is completed, Settlement Procedures
"B" and "C" shall be completed as soon
as such rate has been determined but no
later than 12 Noon and 2:00 P.M.,
respectively, on the second Business day
following the trade date. Settlement
Procedure "H" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the settlement
date.
If Settlement of a Book-Entry Note is
rescheduled or cancelled, by no later
than 2:00 P.M. on the Business Day
preceding the settlement date, the
Company will instruct CMB to deliver to
DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect. (CMB will enter such message by
no later than 4:00 P.M. on such Business
Day.)
Failure to
Settle: If CMB fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure "F",
CMB may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message
instructing DTC to debit such Note to
CMB's participant account. DTC will
process the withdrawal message, provided
that CMB's participant account contains
a principal amount of the Global
Security representing such Note that is
at least equal to the principal amount
to be debited. If a withdrawal message
is processed with respect to all the
Book-Entry Notes represented by a Global
Security, the Trustee will xxxx such
Global
-23-
Security "cancelled" and make
appropriate entries in the Trustee's
records.
The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled
and not immediately reassigned. If a
withdrawal message is processed with
respect to less than the entire
principal amount of a Global Security,
CMB will exchange such Global Security
for two Global Securities, one of which
shall represent the principal amount of
such Global Security to which the
withdrawal message relates and shall be
cancelled immediately after issuance and
the other of which shall represent the
remaining principal amount previously
represented by the surrendered Global
Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry
Note is not timely paid to the
Participants with respect to such Note
by the beneficial purchaser thereof (or
a person, including an indirect
participant in DTC, acting on behalf of
such purchaser), such Participants and,
in turn, the Agent for such Note may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing
the orders entered pursuant to
Settlement Procedures "F" and "G",
respectively. Thereafter, the Company
will return to CMB the funds transferred
in accordance with Settlement Procedure
"I" and will instruct CMB to deliver the
withdrawal message and take the related
actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any
actions in accordance with its SDFS
operating procedures then in effect. In
the event of a failure to settle with
respect to less than the entire
principal amount of a Global Security,
the Trustee will provide, in accordance
with Settlement Procedures "D", for the
authentication and issuance of a Global
Security representing the remaining
principal amount to have been
represented by such
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Global Security and will make
appropriate entries in its records.
PART IX.: Administrative Procedures For Certificated Notes
Currencies: Certificated Notes will be denominated
in U.S. dollars or in such other
currency or currency unit as specified
in the Prospectus (the "Specified
Currency").
Denominations: The denomination of any Certificated
Note will be an integral a multiple of
$1,000 or 1,000 units of any Specified
Currency other than U.S. dollars.
Registration: Certificated Notes will be issued in
fully registered form.
Interest Payments: Each Certificated Note which is a Fixed
Rate Note, will bear interest or, in the
case of Certificated Amortizing Notes,
principal and interest, from the date of
issue at the annual rate stated on the
face thereof, payable unless otherwise
specified in the applicable Pricing
Supplement semi-annually on February 15
and August 15 of each year, and at
maturity or, in the case of Certificated
Amortizing Notes, unless otherwise
specified in the applicable Pricing
Supplement, semi-annually on February 15
and August 15 of each year, or quarterly
on February 15, May 15, August 15 and
November 15 of each year and at maturity
subject to certain exceptions, and each
Certificated Note which is a Floating
Rate Note will bear interest as
determined in the manner set forth on
the face thereof, payable on the date or
dates set forth on the face thereof and
will have the record dates as set forth
in the Note.
Interest or, in the case of a
Certificated Amortizing Note, principal
and interest, will be payable to the
person in whose name the Certificated
Note is registered at the close of
business on the record date next
preceding the interest payment date;
provided, however, that (i) interest
payable at maturity (whether or not the
maturity date is an interest
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payment date) will be payable to the
person to whom principal shall be
payable, and (ii) the first payment of
interest on any Certificated 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 to the registered holder on such
next succeeding Record Date of such
Certificated Note.
The date of issue of each Certificated
Note will be the date of its
authentication, as provided in the
Indenture. The date of authentication of
each Certificated Note will be the
settlement date. Unless otherwise
specified in the applicable Pricing
Supplement, interest (including payments
for partial periods) on Fixed Rate
Certificated Notes will be calculated on
the basis of a 360-day year of twelve
30-day months and interest on Floating
Rate Certificated Notes will be
determined by the Company and the
Purchaser thereof in accordance with the
provisions of the Prospectus. Except as
otherwise set forth in the Prospectus,
all interest payments and in the case of
a Certificated Amortizing Note,
principal and interest payments
(excluding interest payments made on a
date of maturity) will be made by check
and mailed to the person entitled
thereto as provided above.
On the fifth business day immediately
preceding each interest payment date,
the Paying Agent will advise the Company
of the aggregate amount of interest to
be paid on the Certificated Notes (other
than Certificated Amortizing Notes)
theretofore issued on such interest
payment date and the currency or
currency units in which such interest
payments are to be made. The Paying
Agent will provide separate written
notice to the Company specifying the
aggregate amount of principal and
interest to be paid on the Certificated
Amortizing Notes on the following
interest payment date (other than at
maturity or earlier redemption or
repayment). The Paying Agent will
provide monthly to the Company's
Treasury Department a list of the
principal and interest to the extent
ascertainable to be paid on the
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Notes (including Amortizing Notes)
maturing in the next succeeding month.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Certificated Note and the authentication
and issuance of such Certificated Note
shall, with respect to such Certificated
Note, constitute "Settlement". All
orders accepted by the Company will be
settled on the next business day
pursuant to the timetable for Settlement
set forth below unless the Company and
the purchaser agree to Settlement on a
later date; provided, however, that in
the case of a delayed Settlement the
Company will notify CMB at least 24
hours prior to the time of Settlement.
Settlement Procedures: Settlement Procedures with regard to
each Certificated Note sold by an Agent
as agent shall be as follows:
(a) Such Agent will advise the Company
by telephone or facsimile of the
following settlement information:
(i) Exact name in which
Certificated Note is to be
registered.
(ii) Exact address of the
registered owner and address
for payment of principal and
interest.
(iii) Taxpayer identification
number of the registered
owner.
(iv) Principal amount of the
Certificated Note.
(v) Currency or currency unit.
(vi) Interest rate and, in the
case of a Fixed Rate
Certificated Note, whether
such Note is an Amortizing
Note, and if so, the
Amortization Schedule.
(vii) Base Rate.
(viii) Index maturity.
(ix) Initial interest rate.
(x) Interest Reset Period.
(xi) Interest Reset Dates.
(xii) Interest Payment Periods.
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(xiii) Interest Payment Dates.
(xiv) Redemption Provisions, if
any.
(xv) Repayment Provisions, if any.
(xvi) Whether the Note is an
original issue discount note
and if it is an original
issue note, the total amount
of original issue discount
("OID"), the yield to
maturity and the initial
accrual period OID.
(xvii) Maximum interest rate.
(xviii) Minimum interest rate.
(xix) Spread or spread multiplier.
(xx) Date of Certificated Note.
(xxi) Settlement date.
(xxii) Maturity date.
(xxiii) Agent's commission.
(xxiv) Net proceeds to the Company.
(xxv) Minimum denominations
including the U.S. dollar
equivalent thereof if
denominated in other than
U.S. dollars.
(xxvi) Calculation Agent.
(xxvii) All other items to be
specified in any Note.
(b) The Company will provide CMB with
the information listed in A (which,
if provided orally, will be
promptly confirmed in writing).
(c) CMB will complete and distribute
the preprinted 4-ply Certificated
Note packet containing the
following documents in forms
approved by the Company, the Agents
and the Trustee:
(i) Note with customer
confirmation.
(ii) Stub 1 - For Agent.
(iii) Stub 2 - For Company.
(iv) Stub 3 - For CMB.
(d) CMB will deliver the Certificated
Note (with the confirmation) and
stub 1 to the Agent or the Agent's
agent.
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(e) The Agent will make payment to the
Company in immediately available
funds equal to the principal amount
of the Certificated Note less any
applicable commission or discount.
(f) The Agent or the Agent's agent will
deliver the Certificated Note (with
confirmation) to the customer
against payment in immediately
available funds.
(g) The Agent or the Agent's agent will
obtain the acknowledgment of
receipt of the Certificated Note by
the customer through completion of
stub 1.
(h) CMB will send by first class mail
stub 2 to the Company.
Periodically, CMB will also send to
the Company and the Trustee a
statement setting forth the
principal amount of the
Certificated Notes outstanding as
of that date after giving effect to
such transaction and all other
orders of which the Company has
advised CMB but which have not yet
been settled.
Settlement For offers accepted by the Company,
Procedures Settlement Procedures "A" through "H"
Timetable: set forth above shall be completed on or
before the respective times to the
extent possible (New York City time) set
forth below:
Settlement Procedures: Time
A (1-3) 11:00 A.M. on day prior to settlement.
5:00 P.M. on day of order
A (4-20) 1:00 P.M. on day prior to settlement.
B 12:00 P.M. on day of settlement
C-D 3:00 P.M. on day of settlement
E-F 4:30 P.M. on day of settlement
G-H
Fails: For orders received by an Agent, in the
event that a purchaser shall fail to
accept delivery of and make
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payment for a Certificated Note, such
Agent will notify CMB, and the Company,
by telephone, confirmed in writing, and
return the Certificated Note to CMB.
Upon receipt of the Certificated Note by
CMB, the Company will immediately credit
an account designated by such Agent in
an amount of immediately available funds
equal to the amount previously credited
in respect of the Note. Such credits
will be made on the settlement date, if
possible, and in any event not later
than the business day following the
settlement date. The Agent shall deliver
such Certificated Note to CMB as soon as
practicable. If such fail shall have
occurred for any reason other than the
failure of the Agent to provide the
necessary information to the Company as
described above for Settlement or to
provide a confirmation to the purchaser
within a reasonable period of time as
described above, the Company will
reimburse the Agent on an equitable
basis for its loss of the use of funds
during the period when such funds were
credited to the account of the Company.
Immediately upon receipt of the
Certificated Note in respect of which
the fail occurred, CMB will make
appropriate entries in their records and
CMB will deliver such certificated notes
to the Trustee for cancellation in
accordance with the Indenture.
Maturity: At maturity, the principal amount of
each Certificated Note together with any
accrued, but unpaid, interest will be
payable in immediately available funds
provided that the Paying Agent receives
the Certificated Note, and appropriate
information in time to make payments in
such funds in accordance with its normal
procedures. Certificated Notes presented
to the Paying Agent or the Trustee will
be cancelled and disposed of by the
Trustee.
Manner of Payment: The total amount of any principal and
interest due on Certificated Notes on
any interest payment date or at maturity
shall be paid by the Company to the
Paying Agent in immediately available
funds as of 9:30 A.M. (New York City
time) on such date. The Company will
make such payment on such
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Certificated Notes by wire transfer to
the Paying Agent or by instructing the
Paying Agent to withdraw funds from an
account maintained by the Company at the
Paying Agent. The Company will confirm
such instructions in writing to the
Paying Agent.
Authenticity
of Signatures: The Agents will have no obligation or
liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or
agent of the Company or the Trustee on
any Certificated Note.
Calculation of Interest: The provisions set forth under
"Calculation of Interest" in Part II of
these Administrative Procedures shall
apply mutatis mutandi with respect
to Certificated Notes.
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