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EXHIBIT 1
EXECUTION COPY
General American Transportation Corporation
$650,000,000 Medium-Term Notes
Due From Nine Months or More
From Date of Issue
Selling Agency Agreement
January 26, 1996
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
General American Transportation Corporation (the "Company"), a New
York corporation and a wholly owned subsidiary of GATX Corporation (the
"Parent"), confirms its agreement with each of you with respect to the issue
and sale by the Company of up to $650,000,000 aggregate principal amount of its
Medium-Term Notes, Series F, Due Nine Months or more from Date of Issue (the
"Notes"). The Notes will be issued under an indenture dated as of October 1,
1987, as supplemented pursuant to the First Supplemental Indenture thereto
dated as of May 15, 1988, the Second Supplemental Indenture thereto dated as of
March 15, 1990, the Third Supplemental Indenture thereto dated as of June 15,
1990, and the Fourth Supplemental Indenture thereto dated as of January ,15
1996 between the Company and The Chase Manhattan Bank (National Association),
as trustee (the "Trustee") (such indenture as so supplemented is hereinafter
called the "Indenture"). The Notes will be issued in minimum denominations of
U.S. $100,000 for Certificated Notes (as hereinafter defined) and $1,000 for
Book-Entry Notes (as hereinafter defined) and in denominations exceeding such
amount by integral multiples of U.S. $1,000, and if denominated in a currency
other than U.S. dollars, the equivalent in such other currency (the "Specified
Currency") as determined in the Indenture, of U.S. $100,000 (rounded down to an
integral multiple of 1,000 units of such Specified Currency) and any larger
amount that is an integral multiple of 1,000 units of such Specified Currency,
will be issued only in fully registered form, and will be issued in the
currency
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or currency unit and will have the maturities, annual interest rates (whether
fixed or floating), redemption provisions and other terms set forth in a
pricing supplement (the "Pricing Supplement") to the Prospectus referred to
below. The Notes will be issued, and the terms thereof established, in
accordance with the Indenture and, in the case of Notes sold pursuant to
Section 2(a), the Medium-Term Notes Administrative Procedures attached hereto
as Exhibit A or such other procedures agreed upon in writing from time to time
by each Agent and the Company after notice to, and in the case of procedures
which affect the rights, duties or obligations of the Trustee, with the
approval of, the Trustee (the "Procedures"). For the purposes of this
Agreement, the term "Agent" shall refer to any of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not jointly.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Agent as set forth below in this Section 1.
Certain terms used in this Section 1 and elsewhere in this Agreement are
defined in paragraph (l) hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File Number: 33-52301), and a
registration statement on such Form (File Number: 33-64697), including
a basic prospectus in accordance with Rule 429, which have each become
effective, for the registration under the Act of $650,000,000
aggregate principal amount of debt securities (the "Securities"),
including the Notes. Such Registration Statements, as amended at the
date of this Agreement, meet the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and comply in all other material
respects with said Rule. The Company has included in the latest filed
Registration Statement, or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424(b) and Rule 429 under
the Act, a supplement to the form of prospectus included in the latest
filed Registration Statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection
with the sale of Notes the Company proposes to file with the
Commission pursuant to the applicable paragraph of Rule 424(b) and
Rule 429 under the Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates and, if
appropriate, other terms of the Notes sold pursuant hereto or the
offering thereof.
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(b) As of the Execution Time, on the Effective Date, when
any supplement to the Prospectus is filed with the Commission, as of
the date of any Terms Agreement (as defined by Section 2(b)) and at
the date of delivery by the Company of any Notes sold hereunder (a
"Closing Date"), (i) each Registration Statement, as amended as of any
such time, and the Prospectus, as supplemented as of any such time,
and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) each
Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statements which constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statements or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in
writing to the Company by any of you specifically for use in
connection with the preparation of each Registration Statement or the
Prospectus (or any supplement thereto).
(c) 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 of which violation or
default would be material to the Company and its subsidiaries taken as
a whole; the execution, delivery and performance of this Agreement and
compliance by the Company with the provisions of the Notes and the
Indenture will not conflict with, result in the creation or imposition
of any lien, charge or encumbrance upon any of the assets of the
Company or of any of its subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument, or
result in a violation of the corporate charter or bylaws of the
Company or of any of its subsidiaries or any order, rule or regulation
of any court or governmental agency having jurisdiction over the
Company or any of its subsidiaries, the effect of which violation or
default would be material to the Company and its subsidiaries taken as
a whole; and, except as required by the Act, the Trust Indenture Act,
the Exchange Act and applicable state securities laws, no consent,
authorization or order of, or
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filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement
and the Indenture.
(d) Except as described in the Registration Statements
and the Prospectus, there has not been any material adverse change in,
or any adverse development which materially affects or will materially
affect the business, properties, condition (financial or other) or
results of operations of the Company and its subsidiaries taken as a
whole since the dates as of which information is given in the
Registration Statements and the Prospectus.
(e) Ernst & Xxxxx, whose reports have been incorporated
by reference or included in the Company's most recent Annual Report on
Form 10-K which is incorporated by reference in the Prospectus, are
independent public accountants as required by the Act and the rules
and regulations thereunder. (The term "Ernst & Young" when used in
this Agreement shall include any successor independent accounting firm
of recognized national standing that has served or shall serve as the
Company's independent public accountants.)
(f) As of the time any Notes are issued and sold
hereunder (i) the Indenture will have been duly authorized, executed
and delivered by the Company and will constitute a legal, valid and
binding instrument enforceable against the Company in accordance with
its terms, (ii) the Notes will have been duly authorized, executed,
authenticated and, upon payment therefor as provided in this
Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, and (iii) the
Indenture conforms and the Notes will conform to the descriptions
thereof contained in the Prospectus.
(g) Each of the Company and its subsidiaries has been
duly incorporated, is validly existing and in good standing under the
laws of the jurisdiction in which it is chartered or organized, is
duly qualified to do business and is in good standing as a foreign
corporation under the laws of each jurisdiction in which its ownership
of property or the conduct of its business requires such
qualification, except where the failure so to qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole, and has power and authority necessary to own or hold its
property and to conduct the business in which it is engaged.
(h) Except as described in the Prospectus, there is no
material litigation or governmental proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries which might result in any material adverse change in the
business, properties, condition
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(financial or other), results of operations or prospects of the
Company and its subsidiaries taken as a whole or which is required to
be disclosed in the Registration Statements.
(i) The financial statements filed as part of the
Registration Statements or included in the Prospectus present, or (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will present at all times during the effectiveness of this
Agreement, fairly, the financial condition and results of operations
of the Company and its subsidiaries taken as a whole, at the dates and
for the periods indicated, and have been, and (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be, at all times during the effectiveness of this
Agreement, prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved.
(j) The documents incorporated by reference into the
Prospectus have been, and (in the case of any amendment or supplement
to any such document, or any material incorporated by reference in any
such document, filed with the Commission after the date as of which
this representation is being made) will be, at all times during the
effectiveness of this Agreement, prepared by the Company in conformity
with the applicable requirements of the Act and the Exchange Act and
the respective rules and regulations of the Commission thereunder and
such documents have been, or (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will be, at all
times during the effectiveness of this Agreement, timely filed as
required thereby.
(k) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statements by the
Act or by the rules and regulations of the Commission thereunder, or
which were required to be filed as exhibits to any document
incorporated by reference in the Prospectus by the Exchange Act or the
rules and regulations of the Commission thereunder, which have not
been filed as exhibits to the Registration Statements or to such
document or incorporated therein by reference as permitted by the
rules and regulations of the Commission under the Act and the Exchange
Act as required.
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(l) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that each Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the latest filed Registration Statement at the
Effective Date thereof. "Prospectus" shall mean the Basic Prospectus
as supplemented by the Prospectus Supplement. "Registration
Statement" shall mean each registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time. "Rule 415",
"Rule 424" and "Rule 429" refer to such rules under the Act. Any
reference herein to the Registration Statements, the Basic Prospectus,
the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statements or
the issue date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statements, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective
Date of the Registration Statements or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be, deemed to be incorporated therein by reference.
(m) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date each Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
conditions set forth herein, and to the reservation
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by the Company of the right to sell, solicit, and accept offers to purchase
Notes directly on its own behalf, the Company hereby authorizes each Agent to
act as its agent to solicit offers for the purchase of all or part of the Notes
from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes from the Company has been
solicited by such Agent and accepted by the Company, but such Agent shall not,
except as otherwise provided in this Agreement, be obligated to disclose the
identity of any purchaser or have any liability to the Company (other than by
reason of such Agent's failure to discharge its obligations hereunder) in the
event any such purchase is not consummated for any reason. Except as provided
in Section 2(b), under no circumstances will any Agent be obligated to purchase
any Notes for its own account. It is understood and agreed, however, that any
Agent may purchase Notes as principal pursuant to Section 2(b).
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 Notes. Upon receipt of instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed.
Unless otherwise agreed between the Company and such Agent, the
Company agrees to pay each Agent a commission in U.S. dollars, on the Closing
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the Notes
sold by the Company. Such commission shall be payable as specified in the
Procedures.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by each Agent as agent for
the Company at such time and in such amounts as such Agent deems advisable.
The Company may from time to time sell Notes otherwise than through an Agent;
provided, however, that so long as this Agreement shall be in effect the
Company shall not solicit offers to purchase Notes through any agents other
than the Agents. It is understood that if from time to time the Company is
approached by a prospective agent offering a specific purchase of Notes, the
Company may engage such agent with respect to such specific purchase, provided
that (i) such agent is engaged on terms substantially similar (including the
same
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commission schedule) to the applicable terms of this Agreement and (ii) the
Agents are given notice of such purchase before it is consummated.
Notwithstanding anything to the contrary contained herein, the Company
may authorize any other person, partnership or corporation (an "Additional
Agent") to act as its agent to solicit offers for the purchase of all or part
of the Notes of the Company upon five business days' prior notice to such
Agents as are at such time parties to this Agreement; provided, however, that
any Additional Agent shall execute this Agreement and become a party hereto and
thereafter the term Agent as used in this Agreement shall mean the Agents and
such Additional Agent. At such time, the Additional Agent shall specify its
requirements for the delivery of certificates, letters and opinions as are set
forth in Section 5 hereof.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold
each of you harmless against any loss, claim or damage arising from or as a
result of such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever
the Company and any Agent determines that the Company shall sell Notes directly
to such Agent as principal, each such sale of Notes shall be made in accordance
with the terms of this Agreement and a supplemental agreement relating to such
sale. Each such supplemental agreement (which may be either a written
agreement or an oral agreement between the Agent and the Company, confirmed in
writing by such Agent to the Company within one business day thereafter) is
herein referred to as a "Terms Agreement." Each Terms Agreement shall describe
the Notes to be purchased by the Purchaser pursuant thereto and shall specify
the aggregate principal amount of such Notes, the price to be paid to the
Company for such Notes, the currency or currency unit in which such Note shall
be denominated, the maturity date of such Notes, the rate at which interest
will be paid on such Notes, whether such rate of interest shall be fixed or
floating, the dates on which interest will be paid on such Notes and the record
date with the respect to each such payment of interest, the Closing Date for
the purchase of such Notes, the place of delivery of such Notes and payment
therefor, the method of payment and any requirements for the delivery of
opinions of counsel, the certificates from the Company or its officers or a
letter from the Company's independent public accountants as described in
Section 6(b). Any such Terms Agreement may also specify the period of time
referred to in Section 4(m) hereof. Any written Terms Agreement may be in the
form attached hereto as Exhibit B. The Purchaser's commitment to purchase
Notes 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.
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Delivery of the certificates for Notes sold to the Purchaser pursuant
to a Terms Agreement shall be made not later than the Closing Date set forth in
such Terms Agreement, against payment of funds to the Company in the net amount
due to the Company for such Notes by the method and in the form set forth in
the Procedures unless otherwise agreed to between the Company and the Purchaser
in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms Agreement and
Pricing Supplement, at a fixed public offering price. In connection with any
resale of Notes purchased, a Purchaser may use a selling or dealer group and
may reallow to any broker or dealer any portion of the discount or commission
payable pursuant hereto.
3. Offering Procedure. (a) Unless otherwise agreed between the
Company and each Agent, each Agent shall communicate to the Company, orally or
in writing, each offer to purchase Notes received by such Agent (unless such
offer is rejected by such Agent in accordance herewith) on terms previously
communicated by the Company to such Agent, and unless otherwise agreed between
the Company and each Agent, the Company shall have the sole right to accept
such offers to purchase Notes and may refuse any proposed purchase of Notes in
whole or in part for any reason.
(b) Unless otherwise agreed between the Company and each Agent,
each Agent shall have the right, in its discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with each of you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company will
not file any amendment of either Registration Statement or supplement
to the Prospectus (except for (i) periodic or current reports filed
under the Exchange Act, (ii) a supplement relating to any offering of
Notes providing solely for the specification of or a change in the
maturity dates, interest rates, issuance prices or other similar terms
of any Notes or (iii) a supplement relating to an offering of
securities other than the Notes) unless the Company has furnished each
of you a copy for your review prior to filing
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and will not file any such proposed amendment or supplement to which
either of you may reasonably object. Subject to the foregoing
sentence, the Company will cause each supplement to the Prospectus to
be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (ii) when, prior to the termination of the offering of
the Notes, any amendment of either Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission
for any amendment of either Registration Statement or amendment of or
supplement to the Prospectus or for any additional information, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of either Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a
result of which the Registration Statements, as then amended, or the
Prospectus, as then supplemented, would include any untrue statement
of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, any facts or events arise which,
individually or in the aggregate, would represent a material change in
the information set forth in the Registration Statements or the
Prospectus, or if it shall be necessary to amend the Registration
Statements or to supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company will
(i) immediately notify each of you to suspend solicitation of offers
to purchase Notes (and, if so notified by the Company, each of you
shall forthwith suspend such solicitation and cease using the
Prospectus as then amended or supplemented), (ii) promptly prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or an amendment or supplement which will
effect such compliance and (iii) promptly supply any such amended or
supplemented Prospectus to each of you in such quantities as you may
reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to each of you pursuant
to paragraph (g) of this Section 4 in connection with
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the preparation or filing of such amendment or supplement, are
reasonably satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and upon
the effectiveness of an amendment to the Registration Statements, if
such an amendment is required, resume your obligation to solicit
offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the Act, will
file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and
will furnish to each of you copies of such documents. In addition, on
or prior to the date on which the Company makes any announcement to
the general public concerning earnings or concerning any other event
which is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act, the
Company will furnish to each of you the information contained or to be
contained in such announcement. The Company also will furnish to each
of you copies of all other press releases or announcements to the
general public. The Company will immediately notify each of you of
(i) any decrease in the rating of the Notes or any other debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act) or (ii) any notice given of any intended or potential decrease in
any such rating or of an intended or potential change in any such
rating that does not indicate the direction of the intended or
potential change, as soon as the Company learns of any such decrease
or notice.
(d) As soon as practicable, the Company will make
generally available to its security holders and to each of you an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(e) The Company will furnish to each of you and to your
counsel, without charge, copies of the Registration Statements
(including exhibits thereto), and each amendment to the Registration
Statements (including solely in the case of each of you, when filed
with the Commission, all documents incorporated by reference therein)
and, so long as delivery of a prospectus may be required by the Act,
as many copies of the Prospectus and any amendments thereof and
supplements thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes,
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and will arrange for the determination of the legality of the Notes
for purchase by institutional investors.
(g) The Company shall furnish to each of you and your
counsel, such information, documents, certificates of officers of the
Company and opinions of counsel for the Company relating to the
business, operations and affairs of the Company, the Registration
Statements, the Prospectus, and any amendments thereof or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures and
the performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to
time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the performance
of its obligations under this Agreement and any Terms Agreement,
including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the
Registration Statements, the Prospectus, all amendments thereof and
supplements thereto, the Indenture, this Agreement, any Terms
Agreement and all other documents relating to the offering, the cost
of preparing, printing, packaging and delivering the Notes, the fees
and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the
fees of any agency that rates the Notes, and (ii) reimburse each of
you on a monthly basis for all out-of-pocket expenses (including
without limitation advertising expenses) reasonably incurred by you in
connection with this Agreement, and (iii) be responsible for the
reasonable fees and disbursements of your counsel incurred heretofore
or hereafter in connection with this Agreement.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be an affirmation that its
representations and warranties contained in this Agreement are true
and correct at the time of such acceptance, as though made at and as
of such time, and a covenant that such representations and warranties
will be true and correct at the time of delivery to the purchaser of
the Notes relating to such acceptance, as though made at and as of
such time (it being understood that for purposes of the foregoing
affirmation and covenant such representations and warranties shall
relate to the Registration Statements and Prospectus as amended or
supplemented at each such time). Each such acceptance by the Company
of an offer for the purchase of Notes shall be deemed to constitute an
additional representation, warranty and agreement by the Company that,
as of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other
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Notes to be issued on or prior to such settlement date and of any
other Securities to be issued and sold by the Company on or prior to
such settlement date, the aggregate amount of Securities (including
any Notes) which have been issued and sold by the Company will not
exceed the amount of Securities registered pursuant to the
Registration Statement. The Company will inform you promptly upon
your request of the aggregate amount of Securities registered under
the Registration Statements which remain unsold.
(j) Each time that the Registration Statements or the
Prospectus are amended or supplemented (other than by an amendment or
supplement (i) relating to an offering of Securities other than the
Notes or (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of Notes being sold under this Agreement), to the extent
any of you so requests, the Company will deliver or cause to be
delivered promptly to each of you a certificate of the Company signed
by the President or any Vice President (in the financial area) and the
principal financial or accounting officer or the Treasurer of the
Company, dated the date of the effectiveness of such amendment or the
date of filing of such supplement, in form reasonably satisfactory to
you, to the effect that the statements contained in the certificate
that was last furnished to you pursuant to either Section 5(e) or this
Section 4(j) are true and correct at the time of the effectiveness of
such amendment or the filing of such supplement as though made at and
as of such time (except that (i) the last day of the fiscal quarter
for which financial statements of the Company were last filed with the
Commission shall be substituted for the corresponding date in such
certificate and (ii) such statements shall be deemed to relate to the
Registration Statements and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(e) but modified
to relate to the last day of the fiscal quarter for which financial
statements of the Company were last filed with the Commission and to
the Registration Statements and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(k) Each time that the Registration Statements or the
Prospectus are amended or supplemented (other than by an amendment or
supplement (i) relating to an offering of Securities other than the
Notes, (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of Notes being sold under this Agreement or (iii)
setting forth or incorporating by reference financial statements or
other
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14
information as of and for a fiscal quarter, unless, in the case of
this clause (iii), in the reasonable judgment of any of you, such
financial statements or other information are of such a nature that an
opinion of counsel should be furnished), to the extent that any of you
so requests, the Company shall furnish or cause to be furnished
promptly to each of you a written opinion or opinions of counsel of
the Company satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of filing of such
supplement, in form satisfactory to each of you, of the same tenor as
the opinions referred to in Sections 5(b) and (c) but modified to
relate to the Registration Statements and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or
the filing of such supplement or, in lieu of such opinions, counsel
last furnishing such an opinion to you may furnish each of you with a
letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinions
will be deemed to relate to the Registration Statements and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
(l) Each time that the Registration Statements or the
Prospectus are amended or supplemented to include or incorporate
amended or supplemental financial information or such amended or
supplemental information is incorporated by reference in the
Registration Statements or the Prospectus, to the extent any of you so
requests, the Company shall cause Ernst & Young promptly to furnish
each of you a letter, dated the date of the effectiveness of such
amendment or the date of filing of such supplement, in form
satisfactory to each of you, of the same tenor as the letter referred
to in Section 5(f) with such changes as may be necessary to reflect
the amended and supplemental financial information included or
incorporated by reference in the Registration Statements and the
Prospectus, as amended or supplemented to the date of such letter;
provided, however, that, if the Registration Statements or the
Prospectus are amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the
scope of such letter, which shall be satisfactory in form to each of
you, to the unaudited financial statements included in such amendment
or supplement, unless any other information included or incorporated
by reference therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of any of you,
such letter should cover such other information.
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15
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent of the
Purchaser thereunder, issue or announce the proposed issuance in the
United States of securities denominated in the same currency or
currency unit as specified in the applicable Terms Agreement and which
(i) in the case of a Terms Agreement relating to Notes with a maturity
of seven years or less, have a maturity of from greater than nine
months to ten years, or (ii) in the case of a Terms Agreement relating
to Notes with a maturity of more than seven years, have a maturity of
from seven to twenty years.
5. Conditions to the Obligations of the Agents. The obligations
of any Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and as of each
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus and any
such supplement shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of either Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to such Agent the
opinion or opinions of the assistant general counsel of the Company or
other counsel of or to the Company acceptable to such Agent, dated the
Execution Time to the effect that:
(i) each of the Company and its subsidiaries
(excluding subsidiaries which, considered in the aggregate,
would not constitute a "significant subsidiary" under
Commission Regulation S-X) has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases properties or conducts business, except where the
failure so to qualify would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
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16
(ii) the Company's authorized equity
capitalization is as set forth in the Prospectus;
(iii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(iv) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of or constitute a default
under, the Articles of Incorporation or bylaws of the Company
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or by which any of them are bound, or
any order or regulation known to such counsel to be applicable
to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries;
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitration involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statements which is not adequately disclosed in the
Prospectus, and there is no contract or other document of a
character required to be described in the Registration
Statements or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company or any of its subsidiaries fairly summarize
such matters;
(vi) each Registration Statement and any
amendments thereto have become effective under the Act; any
required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period prescribed by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of either Registration Statement has been
issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statements
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17
and the Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules
thereunder; and no facts have come to the attention of such
counsel which cause them to believe that at the Effective Date
or at the Execution Time the Registration Statements (other
than the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) includes any untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading; and
(vii) this Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto at
the date such opinion is rendered.
(c) The Company shall have furnished to such Agent the
opinion of Xxxxx, Xxxxx & Xxxxx, counsel for the Company, dated the
Execution Time to the effect that:
(i) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); and the Notes have been duly authorized
and, when the terms and forms thereof have been established
and the Notes have been executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof, the Notes will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to
enforcement
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of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); and the Indenture conforms and the
Notes will conform to the descriptions thereof in the
Prospectus;
(ii) each Registration Statement and any
amendments thereto have become effective under the Act; any
required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period prescribed by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of either Registration Statement has been
issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statements and the
Prospectus (other than material incorporated by reference
therein and the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the respective rules thereunder; and no facts have come to
the attention of such counsel which cause them to believe that
at the Effective Date or at the Execution Time the
Registration Statements (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion)
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) includes any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and
(iii) the opinions of such counsel expressed or
referred to under "United States Taxation" in the Prospectus
are confirmed.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (c) include any supplements thereto at
the date such opinion is rendered.
(d) Such Agent shall have received from Winston & Xxxxxx,
counsel for the Agents, such opinion or opinions,
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dated the Execution Time with respect to the issuance and sale of the
Notes, the Indenture, the Registration Statements, the Prospectus and
other related matters as the Agents may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to such Agent a
certificate of the Company, signed by the President or any Vice
President (in the financial area) and the principal financial or
accounting officer or the Treasurer of the Company, dated the
Execution Time, to the effect that the signers of such certificate
have examined the Registration Statements, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the date of such certificate with the
same effect as if made on the date of such certificate and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied as a
condition to the obligation of the Agents to solicit offers to
purchase the Notes;
(ii) no stop order suspending the effectiveness of
either Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the business, properties, condition (financial or other),
results of operations or, to the best of their knowledge, the
prospects of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(f) At the Execution Time, Xxxxx & Xxxxx shall have
furnished to such Agent a letter or letters (which may refer to
letters previously delivered to such Agent), dated as of the Execution
Time, in form and substance satisfactory to such Agent, confirming
that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
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(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statements and the Prospectus and reported on by them
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors of the Company
and standing committees thereof; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements included or incorporated in the Prospectus, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statements and the Prospectus do not comply in form
in all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statements and the Prospectus;
(2) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, in or incorporated in the
Registration Statements and the Prospectus, there
were any changes, at a specified date not more than
five business days prior to the date of the letter,
in the advances to, investments in or receivables
from related parties, or in the capital stock or long
term debt of the Company and its subsidiaries or any
decreases in the shareholders' equity of the Company
or consolidated net current assets or net
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assets as compared with the amounts shown on the most
recent consolidated balance sheet included or
incorporated in the Registration Statements and the
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statements and the
Prospectus to such specified date there were any
decreases, as compared with the corresponding period
in the preceding year in net operating revenues or in
income before income taxes and net income of the
Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter; or
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statements and the
Prospectus do not agree with the amounts set forth in
the unaudited financial statements for the same
periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statements and the Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statements and the Prospectus and in Exhibit 12 to each
Registration Statement, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Registration Statements and the Prospectus
in this paragraph (f) include any amendment thereof or supplement
thereto at the date of the letter.
(g) Prior to the Execution Time, the Company shall have
furnished to such Agent such further information, certificates and
documents as such Agent may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agent and its counsel, this Agreement and all obligations
of such Agent hereunder may be canceled at any time by such Agent.
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Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Xxxxx, Brown & Xxxxx, counsel for the Company, at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, on the date hereof.
6. Conditions to Obligations of a Purchaser. The obligations of
a Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to
the performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of either
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated in a manner consistent with Section 5 hereof,
(i) a certificate of the Company, dated as of the Closing Date, to the
effect set forth in Section 5(e) (except that references to the
Prospectus shall be to the Prospectus as supplemented as of the date
of such Terms Agreement), (ii) the opinions of the general counsel of
the Company and other counsel of or to the Company, dated as of the
Closing Date, to the effect set forth in Sections 5(b) and (c), (iii)
the opinion of Xxxxxxx & Xxxxxx, counsel for the Purchaser, dated as
of the Closing Date, to the effect set forth in Section 5(d) and (iv)
the letter of Xxxxx & Xxxxx, dated as of the Closing Date, to the
effect set forth in Section 5(f).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to
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the Notes subject thereto may be canceled at, or at any time prior to, the
respective Closing Date by the Purchaser. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
7. Reimbursement of the Agent's Expenses. If any condition to
the obligations of any Agent set forth in Section 5 hereof is not satisfied, if
any condition to the obligations of a Purchaser set forth in Section 6 hereof
is not satisfied, if any termination pursuant to Section 9 hereof shall occur
or in the case of any refusal, inability or failure on the part of the Company
to perform any agreement herein or comply with any provision hereof other than
by reason of a default by such Agent, the Company will reimburse such Agent
upon demand for all expenses that shall have been incurred by such Agent
pursuant to Section 4(h) hereof in connection with this Agreement.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each of you, the directors, officers, employees and agents of each of you and
each person who controls either of you within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which you, they or any of you or them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in any registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Prospectus or any
preliminary Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of you specifically for inclusion therein, and (ii)
such indemnity with respect to the Prospectus or any preliminary Prospectus
shall not inure to the benefit of any of you (or any person controlling any of
you) from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as supplemented) excluding
documents
-23-
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incorporated therein by reference at or prior to the confirmation of the sale
of such Notes to such person in any case where (A) such delivery is required by
the Act, (B) the untrue statement or omission of a material fact contained in
the Prospectus or any preliminary Prospectus was corrected in the Prospectus
(or the Prospectus as supplemented) and (C) if a copy of such Prospectus (or
the Prospectus as supplemented) had been so sent or given, such delivery would
have cured the defect giving rise to the claim asserted by such person. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each of you agrees, severally and not jointly, to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statements, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to you, but only with reference to
written information relating to such of you furnished to the Company by such of
you specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
you may otherwise have. The Company acknowledges that the statements set forth
under the heading "Plan of Distribution" in the Prospectus constitutes the only
information furnished in writing by any of you for inclusion in the documents
referred to in the foregoing indemnity, and you confirm that such statements
with respect to you are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified parties shall
have the right to employ one separate counsel and one local counsel for all
such indemnified parties in such action, and the indemnifying party shall bear
the
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reasonable fees, costs and expenses of such separate counsel and local counsel
if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ such counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and each of you agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
you may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by each of you from the offering of the
Notes from which such Losses arise; provided, however, that in no case shall
any of you be responsible for any amount in excess of the commissions received
by such of you in connection with the sale of Notes from which such Losses
arise (or, in the case of Notes sold pursuant to a Terms Agreement, the
aggregate commissions that would have been received by such of you if such
commissions had been payable). If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and each of you
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of each
of you in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) of the Notes from which such
Losses arise, and benefits received by each of you shall be deemed to be equal
to the total commissions received by such of you
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in connection with the sale of Notes from which such Losses arise (or, in the
case of Notes sold pursuant to a Terms Agreement, the aggregate commissions
that would have been received by such of you if such commissions had been
payable). Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or any of you. The Company and each of you agree that it would not be
just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls any of you within the meaning of
the Act or the Exchange Act and each director, officer, employee and agent of
any of you shall have the same rights to contribution as you and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statements and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Termination. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated at
any time by either the Company as to any of you or any of you insofar as this
Agreement relates to such of you, giving written notice of such termination to
such of you or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. This
Agreement may be terminated as to one or more of the Agents, and to the extent
not terminated with respect to any Agent, this Agreement shall remain in full
force and effect as between the Company and any such Agent. In the event of
such termination, no party shall have any liability to the other party hereto,
except as provided in the fourth paragraph of Section 2(a), Section 4(h),
Section 7, Section 8 and Section 10. The provisions of this Agreement
(including without limitation Section 11 hereof) applicable to any purchase of
a Note for which an agreement to purchase exists prior to the termination
hereof shall survive any termination of this Agreement.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of and payment for any Note to be purchased thereunder, if prior to
such time (i) trading in the Company's or the Parent's securities shall have
been suspended by the Commission, trading in the Parent's securities shall have
been suspended by the New York Stock Exchange or the Chicago Stock Exchange or
trading in securities generally on the New York Stock
-26-
27
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been
declared by either Federal or New York State authorities or, in the case of
Notes denominated in other than U.S. dollars, by the authorities of the country
of the currency in which such Notes are so denominated, (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the reasonable
judgment of the Purchaser, impracticable to market such Notes, (iv) there shall
have been any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of any review of or possible change in
any such rating that does not indicate the direction of the possible change or
(v) there shall have been any change, or any development involving a
prospective change, in or affecting the business, properties, condition
(financial or other) or results of operation of the Company and its
subsidiaries taken as a whole, the effect of which is, in the reasonable
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to market the Notes.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(h), 7 and
8 hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement (including without limitation Section 11 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this
Agreement. If at the time of termination of this Agreement any Purchaser shall
notify the Company that it continues to own Notes with the intention of selling
them, the provisions of Section 4 shall remain in effect until the earlier of
(a) the date on which such Notes are sold by the Purchaser and (b) the date
which is 90 days after the termination of the Agreement.
11. Right of Person Who Agreed to Purchase To Refuse To Purchase.
(a) The Company agrees that any person who has agreed to purchase and pay for
any Note pursuant to a solicitation by any of the Agents, shall have the right
to refuse to purchase such Note if at the Closing Date therefor, any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied.
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(b) The Company agrees that any person who has agreed to purchase
and pay for any Note pursuant to a solicitation by any of the Agents shall have
the right to refuse to purchase such Note if, subsequent to the agreement to
purchase such Note, any change, condition or development specified in any of
Sections 9(b)(i) through (v) shall have occurred (with the judgment of the
Agent which presented the offer to purchase such Note being substituted for any
judgment of a Purchaser required therein) the effect of which is, in the
reasonable judgment of the Agent which presented the offer to purchase such
Note, so material and adverse as to make it impractical or inadvisable to
proceed with the sale and delivery of such Note (it being understood that under
no circumstance shall any such Agent have any duty or obligation to the Company
or to any such person to exercise the judgment permitted to be exercised under
this Section 11(b) and Section 9(b)).
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Treasurer.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, their respective successors, the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof and, to the extent provided in Section 11, any person who has agreed to
purchase Notes, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
* * * * *
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and the acceptance by each of you shall represent a
binding agreement among the Company and each of you.
Very truly yours,
General American Transportation
Corporation
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Its Vice President Finance
--------------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Its Managing Director
--------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ May Busch
--------------------------------
Its Principal Coverage Officer
--------------------------------
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SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year........... .125%
From 1 year to less than 18 months.......... .150%
From 18 months to less than 2 years......... .200%
From 2 years to less than 3 years........... .250%
From 3 years to less than 4 years........... .350%
From 4 years to less than 5 years........... .450%
From 5 years to less than 6 years........... .500%
From 6 years to less than 7 years........... .550%
From 7 years to less than 10 years.......... .600%
From 10 years to less than 15 years......... .625%
From 15 years to less than 20 years......... .700%
From 20 years to less than 30 years......... .750%
Terms of 30 years and greater shall be negotiated at the time of sale.
Unless otherwise specified in the applicable Terms Agreement,
the discount or commission payable to a Purchaser shall be determined on the
basis of the commission schedule set forth above.
Address for Notice to you:
Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, New York, New York 10048, Attention: Medium-Term Note
Department. Copies of pricing supplements should be provided to Salomon
Brothers Inc at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxx Xxxxxx. Certificated Note stubs should be provided to The Bank of New
York, Xxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Dealer Clearance.
Notices to Xxxxxx Xxxxxxx & Co. Incorporated shall be directed
to it at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Continuously Offered Products Group, with a copy to 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx, IBD Information Center.
31
EXHIBIT A
General American Transportation Corporation
MEDIUM-TERM NOTES, SERIES F, ADMINISTRATIVE PROCEDURES
___________
January 26, 1996
The administrative procedures and specific terms of the offering of
Medium-Term Notes, Series F (the "Notes"), on a continuous basis by General
American Transportation Corporation ("the Company") pursuant to the Selling
Agency Agreement, dated as of January 26, 1996 (the "Agency Agreement") among
the Company, Salomon Brothers Inc and Xxxxxx Xxxxxxx & Co. Incorporated (each
an "Agent" and collectively, the "Agents") are explained below. In the Agency
Agreement, the Agents have agreed to use their reasonable best efforts to
solicit purchases of the Notes. Each Agent, as principal, may purchase Notes
for its own account pursuant to the terms and settlement details of a terms
agreement entered into between the Company and such Agent, as contemplated by
the Agency Agreement between them. 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").
Each Note will be issued under an indenture dated as of October 1,
1987, as supplemented by the First Supplemental Indenture thereto, dated as of
May 15, 1988, the Second Supplemental Indenture thereto, dated as of March 15,
1990, the Third Supplemental Indenture thereto, dated as of June 15, 1990, and
the Fourth Supplemental Indenture thereto, dated as of January 15, 1996 between
the Company and The Chase Manhattan Bank (National Association), as trustee
(the "Trustee") (such indenture as so supplemented is hereinafter called the
"Indenture"). Notes will bear interest at either fixed rates ("Fixed Rate
Notes") or floating rates ("Floating Rate Notes"). The Notes may be issued as
indexed notes ("Indexed Notes") the principal amount of which, payable at
maturity, is determined by reference to currencies, currency units, commodity
prices, financial or non-financial indices or other factors. Each Note will be
represented by either a Global Security (as defined hereinafter) delivered to
the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in
the book-entry system maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the Holder thereof or a Person designated by such Holder (a
"Certificated Note"). Only Notes denominated and payable in U.S. dollars may
be issued as Book-Entry Notes. An owner of a Book-Entry Note will not be
entitled to receive a certificate representing such a Note.
32
The Trustee will act as 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 III hereof, as adjusted in accordance with
changes in DTC's operating requirements, and Certificated Notes will be issued
in accordance with the administrative procedures set forth in Parts II and III
hereof. Unless otherwise defined herein, terms defined in the Indenture and
the Notes shall be used herein as therein defined. To the extent the
procedures set forth below conflict with the provisions of the Notes, the
Indenture, DTC's operating requirements or the Agency Agreement, the relevant
provisions of the Notes, the Indenture, DTC's operating requirements or the
Agency Agreement, as applicable, shall control.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES.
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated as of the date
hereof, and a Medium-Term Note Certificate Agreement between the Trustee and
DTC, dated as of March 10, 1989, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more
Book-Entry Notes, the Company will issue a
single global security in fully registered
form without coupons (a "Global Security")
representing up to $200,000,000 principal
amount of all such Book-Entry Notes that have
the same Stated Maturity, redemption,
repayment and extension provisions (if any),
Interest Payment Dates, Interest Payment
Period, Regular Record Dates, Original Issue
Date, Original Issue Discount Provisions,
redemption, repayment and extension
provisions (if any), and, in the case of
Fixed Rate Notes, interest rate, or, in the
case of Floating Rate Notes, initial interest
rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), minimum interest
rate (if any), and maximum interest rate (if
any), or, in the case of Indexed Notes,
Denominated Currency, Indexed Currency, Face
Amount and Base Exchange Rate, and in each
case any other relevant terms
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33
(collectively, the "Terms") . Each Global
Security will be dated and issued as of the
date of its authentication by the Trustee.
Each Global Security will bear an original
issue date, which will be (i) with respect to
an original Global Security (or any portion
thereof), the original issue date specified
in such Global Security, and (ii) following a
consolidation of Global Securities, with
respect to the Global Security resulting from
such consolidation, the most recent Interest
Payment Date to which interest has been paid
or duly provided for on the predecessor
Global Securities, regardless of the date of
authentication of such resulting Global
Security. Book-Entry Notes may be
denominated and payable only in U.S. dollars.
No Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry Notes
or (ii) any Certificated Note.
Identification
Numbers: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
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
Book-Entry Notes and book-entry medium-term
notes issued by the Company with other series
designations. The Company has obtained from
the CUSIP Service Bureau a written list of
such series of reserved CUSIP numbers and has
delivered to the Trustee and DTC such written
list of 150 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, if it deems necessary, the
Company will reserve additional CUSIP numbers
for assignment to Global Securities
representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the
Company shall deliver a list of such
additional CUSIP numbers to the Trustee and
DTC.
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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. The beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in
DTC (with respect to such Book-Entry Note,
the "Participants") to act as agent or agents
for such owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such
Participants, a credit balance with respect
to such beneficial owner in such Book-Entry
Note in the account of such Participants.
The ownership interest of such beneficial
owner (or such Participant) in such
Book-Entry Note will be recorded through the
records of such Participants or through the
separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and,
in turn, by Participants (and in certain
cases, one or more indirect participants in
DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
of consolidation (a copy of which shall be
attached to the resulting Global Security
described below) specifying (i) the CUSIP
numbers of two or more outstanding Global
Securities that represent (A) Fixed Rate
Book-Entry Notes having the same Terms and
for which interest has been paid to the same
date, (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest
has been paid to the same date or (C) Indexed
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
-4-
35
new CUSIP number, obtained from the Company,
to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC
will send to its participants (including the
Trustee) a written reorganization notice to
the effect that such exchange will occur on
such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Securities for a single
Global Security bearing the new CUSIP number
and 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 Securities and an additional
Global Security will be authenticated and
issued to represent any remaining principal
amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date
not less than nine months after the
settlement date for such Note. A Floating
Rate Book-Entry Note will mature only on an
Interest Payment Date for such Note. Any
Book-Entry Note denominated in Pounds
Sterling will mature on a date not less than
one year, nor more than five years, after its
Original Issue Date.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any amount in excess
thereof that is an integral multiple 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 authenticated and
issued to represent each
-5-
36
$200,000,000 principal amount of such
Book-Entry Note or Notes and an additional
Global Security will be authenticated and
issued to represent any remaining principal
amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities
representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
Interest: General. Interest, if any, on each
Book-Entry Note will accrue from the original
issue date for the first interest period or
the last date to which interest has been
paid, if any, for each subsequent interest
period, on the Global Security representing
such Book-Entry Note, and will be calculated
and paid in the manner described in such
Book-Entry Note and in the Prospectus (as
defined in the Agency Agreement), as
supplemented by the applicable Pricing
Supplement relating to such Book Entry 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 that, in the
case of Floating Rate Book-Entry Notes which
reset daily or weekly, interest payments will
include accrued interest to but excluding the
Regular Record Date immediately preceding the
Interest Payment Date) or to but excluding
Maturity (other than a Maturity of a Fixed
Rate Book-Entry Note occurring on the 31st
day of a month, in which case such payment of
interest will include interest accrued to but
excluding the 30th day of such month).
Interest payable at the Maturity of a
Book-Entry Note or upon earlier redemption or
repayment 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 (daily or weekly)
bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record
Date with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment
-6-
37
Date, whether or not such date is a Business
Day.
Interest Payment Date on Fixed Rate
Book-Entry Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Book-Entry
Notes will be made semiannually on April 1
and October 1 of each year and at Maturity or
upon earlier redemption or repayment;
provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between a
Regular 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 Regular Record Date; provided,
further, that if an Interest Payment Date for
a Fixed Rate Book-Entry Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date.
Interest Payment Date on Floating Rate
Book-Entry Notes. Interest payments will be
made on Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon,
interest will be payable, in the case of
Floating Rate Book-Entry Notes with a monthly
Interest Payment Period, on the third
Wednesday of each month; with a quarterly
Interest Payment Period, on the third
Wednesday of March, June, September and
December of each year; with a semi-annual
Interest Payment Period, on the third
Wednesday of the two months specified
pursuant to Settlement Procedure "A" below;
and with an annual Interest Payment Period,
on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry
Note would otherwise be a day that is not a
Business Day with respect to such Floating
Rate Book-Entry Note, such Interest Payment
Date will be the next succeeding Business Day
with respect to such Floating Rate Book-Entry
Note, except that in the case of a Floating
Rate Book-Entry Note for which the Base Rate
is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest
Payment Date
-7-
38
will be the immediately preceding Business
Day; and provided further, that in the case
of a Floating Rate Book-Entry Note issued
between a Regular 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 Regular Record Date.
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, the
Trustee will deliver to the Company and DTC a
written list of Regular Record Dates and
Interest Payment Dates that will occur with
respect to Book-Entry Notes during the
six-month period beginning on such first
Business Day. Promptly after each Interest
Determination Date for Floating Rate
Book-Entry Notes, the Trustee, as Calculation
Agent, will notify Standard & Poor's
Corporation of the interest rates determined
on such Interest Determination Date.
Calculation of
Interest: Fixed Rate Book-Entry Notes. Interest on
Fixed Rate Book-Entry Notes (including
interest for partial periods) will be
calculated on the basis of a 360-day year of
twelve thirty-day months. (Examples of
interest calculations are as follows: The
period from August 15, 1990, to February 15,
1991, 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, 1990, to February 15,
1991, 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.)
Notwithstanding the foregoing, in the case of
any Fixed Rate Book-Entry Note issued on the
thirty-first day of a month, the interest
calculation shall include such thirty-first
day.
Floating Rate Book-Entry Notes. Interest
rates on Floating Rate Book-Entry Notes will
be determined as set forth in the form of
Notes. Interest on Floating Rate Book-Entry
Notes, except as otherwise set forth therein,
will be calculated on the basis of actual
days
-8-
39
elapsed and a year of 360 days, except that
in the case of a Floating Rate Book-Entry
Note for which the Base Rate is the Treasury
Rate, 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 Regular Record Date, the Trustee will
deliver to the Company and DTC a written
notice specifying by CUSIP number the amount
of interest to be paid on each Global
Security 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.
The Company will pay to the Trustee, as
paying agent, the total amount of interest
due on such Interest Payment Date (other than
at Maturity), and the Trustee will pay such
amount to DTC at the times and in the manner
set forth below under "Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC a written list
of principal and interest to be paid on each
Global Security maturing either at Stated
Maturity or on a Redemption or Repayment Date
or otherwise in the following month. The
Company, the Trustee 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 or Redemption or
Repayment Date of such Global Security. On
or before Maturity or such Redemption or
Repayment Date, as the case may be, the
Company will pay to the Trustee, as the
paying agent, the principal amount of such
Global Security, together with interest due
at such Maturity or such Redemption or
Repayment Date, as the case may be. The
Trustee will pay such amounts to DTC at the
times and in the manner set forth below under
"Manner of Payment". If any Maturity of, or
Redemption or Repayment Date relating to, a
Global Security
-9-
40
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 or Redemption or Repayment Date, as
the case may be. Promptly after payment to
DTC of the principal and interest due at
Maturity of such Global Security, the Trustee
will cancel such Global Security in
accordance with the terms of the Indenture
and deliver it to the Company with a
certificate of cancellation. On the first
Business Day of each month, the Trustee will
deliver to the Company a written statement
indicating the total principal amount of
Outstanding Global Securities for which it
serves as trustee as of the immediately
preceding Business Day. If the Maturity of a
Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the
next succeeding Business Day and no interest
shall accrue on such payment for the period
from and after such Maturity.
Manner of Payment. The total amount of any
principal and interest due on Global
Securities on any Interest Payment Date or at
Maturity or upon earlier redemption or
repayment shall be paid by the Company to the
Trustee in immediately available funds not
later than 9:30 A.M. (New York City time) for
use by the Trustee on such date. The Company
will make such payment on such Global
Securities by wire transfer to the Trustee or
by instructing the Trustee to debit the
account of the Company maintained with the
Trustee. The Company will confirm such wire
transfer instructions in writing to the
Trustee. Prior to 3:00 P.M. (New York City
time) on each Maturity Date and Redemption
and Repayment Date the Trustee will pay by
separate wire transfer (using Fedwire message
entry instructions in a form previously
specified by DTC) to an account at the
Federal Reserve Bank of New York previously
specified by DTC, in funds available for
immediate use by DTC, each payment of
principal (together with interest thereon)
due on Global Securities on any Maturity Date
or any Redemption or Repayment Date, as the
case may be. On each Interest Payment Date
(other than
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at Maturity or any Redemption or Repayment
Date), interest payments shall be made to DTC
in funds available for immediate use by DTC,
in accordance with existing arrangements
between the Trustee and DTC. On each such
date, DTC will pay, in accordance with its
SDFS operating procedures then in effect,
such amounts in funds available for immediate
use to the respective Participants in whose
names the Book-Entry Notes represented by
such Global Securities are recorded in the
book-entry system maintained by DTC. Neither
the Company (either as issuer or as Paying
Agent) nor the Trustee shall have any direct
responsibility or liability for the payment
by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry
Note will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Note.
Procedure for
Rate Setting and
Posting: The Company and the Agents will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Book-Entry Notes that
may be sold as a result of the solicitation
of orders by the Agents. If the Company
decides to set prices of, and rates borne by,
any Book-Entry Notes in respect of which the
Agents are to solicit orders (the setting of
such prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates previously
posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
Acceptance and
Rejection of
Offers: Unless otherwise instructed by the Company,
each Agent will advise the Company promptly
by telephone of all offers to purchase
Book-Entry Notes received by such Agent,
other than those rejected by it in whole or
in part in the reasonable exercise of its
discretion. Unless
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otherwise agreed by the Company and each of
the Agents, the Company has the sole right to
accept offers to purchase Book-Entry Notes
and may reject any such offer in whole or in
part.
Preparation
of Pricing
Supplement: If any offer to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Note and will arrange to have such
Pricing Supplement filed with the Commission
via XXXXX in accordance with the applicable
paragraph of Rule 424(b) under the Act and
will supply at least ten copies thereof (and
additional copies if requested) to the Agent
which presented the offer (the "Presenting
Agent") to the address specified in Schedule
I to the Agreement. The Presenting Agent
will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser
of the Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached
(other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of
the Global Security representing such
Book-Entry Note shall constitute "settlement"
with respect to such Book-Entry Note. All
orders accepted by the Company will be
settled on the fifth Business Day following
the date of sale of such Book-Entry Note
pursuant to the timetable for settlement set
forth below unless the Company, the Trustee
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:
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A. The Presenting Agent will advise the
Company by telephone of the following
settlement information:
1. Principal amount.
2. Stated Maturity.
3. In the case of a Fixed Rate
Book-Entry Note, the interest
rate, 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), maximum interest
rate (if any), Interest
Payment Period, Interest
Payment Dates and Regular
Record Dates or, in the case
of Indexed Book-Entry Notes,
the Denominated Currency,
Indexed Currency, Face
Amount, Base Exchange Rate,
Determination Agent and the
Reference Dealers.
4. Redemption and repayment
provisions, if any.
5. Settlement date.
6. Price.
7. Presenting Agent's commission,
determined as provided in
Schedule I to the Agency
Agreement.
8. Whether the Note is issued at
an original issue discount
and, if so, the total amount
of OID, the yield to maturity
and the initial accrued
period OID.
B. The Company will assign a CUSIP
number to the Global Security
representing such Book-Entry Note
and then advise the Trustee by
telephone (confirmed in writing at
any time on the same date) or
electronic transmission of the
information set forth in Settlement
Procedure "A" above, such CUSIP
number
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and the name of the Presenting Agent.
The Company will also notify the
Presenting 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 the
Trustee 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 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 Notes
issued under the Indenture will not
exceed $650,000,000 or the
equivalent thereof in one or more
currencies (except for Securities
represented by, authenticated and
delivered in exchange for and in
lieu of Securities pursuant to
Section 2.08, 2.09, 2.12, 3.06 or
9.05 of the Indenture).
C. The Trustee will enter a pending
deposit message through DTC's
Participant Terminal System,
providing the following settlement
information to DTC (which shall
route such information to Standard &
Poor's Corporation) and the
Presenting Agent:
1. The information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note, a Floating
Rate Book-Entry Note or an
Indexed Book-Entry Note.
3. Initial Interest Payment Date
for such Book-Entry Note,
number of days by which such
date succeeds the related
Regular Record Date (which,
in the case of Floating Rate
Notes which reset daily or
weekly, shall be the date
five calendar days
immediately preceding the
applicable Interest Payment
Date and in the
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case of all other Notes shall
be the Regular Record Date as
defined in the Note) and
amount of interest payable on
such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global
Security representing such
Book-Entry Note.
6. Whether such Global Security
will represent any other
Book-Entry Note (to the
extent known at such time).
D. To the extent the Company has not
already done so, the Company will
deliver to the Trustee a Global
Security in a form that has been
approved by the Company, the Agents
and the Trustee.
E. The Trustee will complete such
Book-Entry Note, stamp the
appropriate legend, as instructed by
DTC, if not already set forth
thereon, and authenticate the Global
Security representing such
Book-Entry Note.
F. DTC will credit such Book-Entry Note
to the Trustee's participant account at
DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Book-Entry Note to the Trustee's
participant account and credit such
Book-Entry Note to the Presenting
Agent's participant account and (ii)
debit the Presenting Agent's
settlement account and credit the
Trustee's settlement account for an
amount equal to the price of such
Book-Entry Note less the Presenting
Agent's commission. The entry of
such a deliver order shall
constitute a representation and
warranty by the Trustee to DTC that
(i) the Global Security representing
such Book-Entry Note has been issued
and authenticated and (ii) the
Trustee is holding such Global
Security pursuant to the Medium-Term
Note Certificate Agreement between
the Trustee and DTC.
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46
H. The Presenting Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Book-Entry Note to the Presenting
Agent's participant account and
credit such Book-Entry Note to the
participant accounts of the
Participants with respect to such
Book-Entry Note and (ii) to debit
the settlement accounts of such
Participants and credit the
settlement account of the Presenting
Agent for an amount equal to the
price of such Book-Entry Note.
I. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "G" and "H"
will be settled in accordance with
SDFS operating procedures in effect
on the settlement date.
J. The Trustee will wire transfer to or
credit the account of the Company
maintained at The Chase Manhattan
Bank (National Association), in
funds available for immediate use,
in the amount transferred to the
Trustee in accordance with
Settlement Procedure "G."
K. The Presenting Agent will confirm
the purchase of such Book-Entry Note
to the purchaser either by
transmitting to the Participants
with respect to such Book-Entry Note
a confirmation order or orders
through DTC's institutional delivery
system or by mailing a written
confirmation to such purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by
an Agent, as agent, and accepted by the
Company for settlement on the first Business
Day after the sale date, Settlement
Procedures "A" through "K" set forth above
shall be completed as soon as possible but
not later than the respective times (New York
City time) set forth below:
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47
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the date on which
an offer to purchase has been
accepted (the "sale date")
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later
than 11:00 A.M. and 12:00 Noon on the first
Business Day after the sale date and no later
than 2:00 P.M. on the Business Day before the
settlement date, respectively. If the
initial interest rate for a Floating Rate
Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has
been determined but no later than 12:00 Noon
and 2:00 P.M., respectively, on the Business
Day before the settlement date. Settlement
Procedure "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to
such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the
scheduled settlement date.
Failure to
Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", the
Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as
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48
practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to the
Trustee's participant account. DTC will
process the withdrawal message, provided that
the Trustee's participant account contains a
principal amount of the Global Security
representing such Book-Entry 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 cancel such Global Security in
accordance with the Indenture, make
appropriate entries in the Trustee's records
and send such cancelled Global Security to
the Company. The CUSIP number assigned to
such Global Security shall, in accordance
with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
a withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global
Security, the Trustee will exchange such
Global Security for two Global Securities,
one of which shall represent such Book-Entry
Note or Notes and shall be cancelled
immediately after issuance and the other of
which shall represent the remaining
Book-Entry Notes previously represented by
the surrendered Global Security and shall
bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Note by the beneficial
purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in
turn, the Presenting Agent for such Note may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures "H" and respectively. Thereafter,
the Trustee will deliver the withdrawal
message and take the related actions
described in the preceding paragraph. If
such failure shall have occurred for any
reason other than a default by the Presenting
Agent in the performance of its obligations
hereunder and under the Agency Agreement,
then the Company will reimburse the
Presenting Agent or the Trustee, as
applicable, on an equitable basis
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49
for the loss of the use of the funds during
the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect. If it is necessary for the
Trustee to return funds to DTC by reason of
any failure to settle with respect to any
Book-Entry Note, the Company shall pay to the
Trustee funds immediately available to the
Trustee on the date of failure, and the
Trustee is hereby instructed to withdraw said
funds from an account maintained by the
Company at The Chase Manhattan Bank (National
Association). The Trustee shall give the
Company notice of said withdrawal one hour
prior thereto or such lesser time prior
thereto as is practicable under the
circumstances. In the event of a failure to
settle with respect to one or more, but not
all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee
will provide, in accordance with Settlement
Procedure "E" for the authentication and
issuance of a Global Security representing
the other Book-Entry Notes to have been
represented by such Global Security and will
make appropriate entries in its records.
Procedures For
Rate Changes: When the Company has determined to change the
interest rates of Notes being offered, it
will promptly advise the Agents and the
Agents will forthwith suspend solicitation of
offers. The Agents will telephone the
Company with recommendations as to the
changed interest rates. At such time as the
Company has advised the Agents of the new
interest rates, the Agents may resume
solicitation of offers. Until such time only
"indications of interest" may be recorded.
The Company will file with the Commission, in
accordance with the applicable paragraph of
Rule 424(b) under the Act, a Pricing
Supplement to the Prospectus relating to such
Notes that reflects the applicable interest
rates and other terms and will deliver copies
of such Pricing Supplement to the Agents.
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50
Suspension of
Solicitation;
Amendment or
Supplement: Subject to the Company's representations,
warranties and covenants contained in the
Agency Agreement, the Company may instruct
each Agent to suspend solicitation of
purchases of Book-Entry Notes at any time.
Upon receipt of such instructions, each Agent
will forthwith suspend such solicitations
until such time as it has been advised by the
Company that such solicitations may be
resumed. If the Company decides to amend or
supplement the Registration Statements (as
defined in the Agency Agreement) filed by the
Company with the Commission with respect to
the Notes or the Prospectus relating to the
Notes, it will promptly advise each Agent and
will furnish it with the proposed amendment
or supplement and with any such certificates
and opinions as are required, all consistent
with the Company's obligations under the
Agency Agreement. Subject to the provisions
of the Agency Agreement, the Company may file
with the Commission any such supplement to
the Prospectus relating to the Notes. The
Company will provide the Agents and the
Trustee with copies of any such supplement,
and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule
424(b). The Company will, consistent with
such obligations, promptly advise each Agent
and the Trustee whether orders outstanding at
the time each Agent suspends solicitation may
be settled and whether copies of such
Prospectus as in effect at the time of the
suspension, together with the appropriate
Pricing Supplement, may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event
that the Company determines that such orders
may not be settled or that copies of such
Prospectus and Pricing Supplement may not be
so delivered.
Delivery of
Prospectus: A copy of the Prospectus and Pricing
Supplement relating to a Book-Entry Note must
accompany or precede the earliest of any
written offer of such Book-Entry Note,
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51
confirmation of the purchase of such
Book-Entry Note or payment for such
Book-Entry Note by its purchaser. If notice
of a change in the terms of the Book-Entry
Notes is received by an Agent between the
time an order for a Book-Entry Note is placed
and the time written confirmation thereof is
sent by such Agent to a customer or his
agent, such confirmation shall be accompanied
by a Prospectus and Pricing Supplement
setting forth the terms in effect when the
order was placed. Subject to the preceding
paragraph, each Agent will deliver a
Prospectus and Pricing Supplement as herein
described with respect to each Book-Entry
Note sold by it. The Company will make such
delivery if such Book-Entry Note is sold
directly by the Company to a purchaser (other
than an agent).
Confirmation: For each offer to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
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PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its authentication
by the Trustee. Each Certificated Note will
bear an Original Issue Date, which will be
(i) with respect to an original Certificated
Note (or any portion thereof), its original
issuance date (which will be the settlement
date) and (ii) with respect to any
Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed,
lost or stolen Certificated Note, the
Original Issue Date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for
transfer or exchange at the corporate trust
office of the Trustee. Certificated Notes
will be exchangeable for other Certificated
Notes having identical terms but different
authorized denominations without service
charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date
not less than nine months from the settlement
date for such note. A Floating Rate
Book-Entry Note will mature only on an
Interest Payment Date for such Note. Any
Note denominated in Pounds Sterling will
mature on a date not less than one year, nor
more than five years, after its Original
Issue Date.
Denominations: Certificated Notes denominated in U.S.
dollars will be issued in denominations of
$100,000 or any amount in excess thereof that
is an integral multiple of $1,000. The
authorized denominations of Notes denominated
-22-
53
in any other currency will be specified
pursuant to "Settlement Procedures" below.
Interest: General. Interest, if any, on each
Certificated Note will accrue from the
original issue date of such Note for the
first interest period or the last date to
which interest has been paid, if any, for
each subsequent interest period, and will be
calculated and paid in the manner described
in such Note and in the Prospectus (as
defined in the Agency Agreement) and Pricing
Supplement relating to such Note.
Unless otherwise specified therein, each
payment of interest on a Certificated Note
will include interest accrued to but
excluding the Interest Payment Date (provided
that, in the case of Floating Rate
Certificated Notes which reset daily or
weekly, interest payments will include
accrued interest to but excluding the Regular
Record Date immediately preceding the
Interest Payment Date) or to but excluding
Maturity (other than a Maturity of a Fixed
Rate Certificated Note occurring on the 31st
day of a month, in which case such payment of
interest will include interest accrued to but
excluding the 30th day of such month).
Regular Record Dates. The Regular Record
Dates with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment
Date, whether or not such date is a Business
Day.
Interest Payment Date on Fixed Rate
Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure
"A" below, interest payments on Fixed Rate
Certificated Notes will be made semiannually
on April 1 and October 1 of each year and at
Maturity or upon earlier redemption or
repayment; provided, however, that in the
case of a Fixed Rate Certificated Note issued
between a Regular 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 Regular Record Date; provided,
further, that if any Interest Payment Date
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54
for a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date.
Interest Payment Date on Floating Rate
Certificated Notes. Interest payments will
be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or
annually. Interest will be payable, in the
case of Floating Rate Certificated Notes with
a monthly Interest Payment Period, on the
third Wednesday of each month; with a
quarterly Interest Payment Period, on the
third Wednesday of March, June, September and
December of each year; with a semi-annual
Interest Payment Period, on the third
Wednesday of the two months specified
pursuant to Settlement Procedure "A" below;
and with an annual Interest Payment Period,
on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest
Payment Date for a Floating Rate Certificated
Note would otherwise be a day that is not a
Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment
Date will be the next succeeding Business Day
with respect to such Floating Rate
Certificated Note, except that in the case of
a Floating Rate Certificated Note for which
the Base Rate is LIBOR, if such Business Day
is in the next succeeding calendar month,
such Interest Payment Date will be the
immediately preceding Business Day; and
provided further, that in the case of a
Floating Rate Certificated Note issued
between a Regular 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 Regular Record Date.
Calculation of
Interest: Fixed Rate Certificated Notes. Interest on
Fixed Rate Certificated Notes (including
interest for partial periods) will be
calculated on the basis of a 360-day year of
twelve thirty-day months. (Examples of
interest calculations are as follows: August
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55
15, 1990 to February 15, 1991, 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, 1990 to
February 15, 1991 equals 4 months and 28
days, or 148 days; the interest payable
equals 148/360 times the annual rate of
interest times principal amount of the Note.)
Notwithstanding the foregoing, in the case of
any Fixed Rate Certificated Note issued on
the thirty-first day of a month, the interest
calculation shall include such thirty-first
day.
Floating Rate Certificated Notes. Interest
rates on Floating Rate Certificated Notes
will be determined as set forth in the form
of Notes. The Company and the Trustee will
confirm the amount of the initial interest
payment due on any Floating Rate Certificated
Note for which the initial Interest Period is
shorter or longer than the Index Maturity.
Interest on Floating Rate Certificated Notes,
except as otherwise set forth therein, will
be calculated on the basis of actual days
elapsed and a year of 360 days, except that
in the case of a Floating Rate Certificated
Note for which the Base Rate is the Treasury
Rate, interest will be calculated on the
basis of the actual number of days in the
year.
Payments of
Principal and
Interest: The Trustee will pay the principal amount of
each Certificated Note at Maturity or upon
earlier redemption or repayment upon
presentation of such Note to the Trustee.
Such payment, together with payment of
interest due at Maturity or upon earlier
redemption or repayment of such Note, will be
made in funds available for immediate use by
the Trustee and in turn by the Holder of such
Note. Certificated Notes presented to the
Trustee at Maturity or upon earlier
redemption or repayment for payment will be
cancelled by the Trustee in accordance with
the terms of the Indenture and delivered to
the Company. All interest payments on a
Certificated Note (other than interest due at
Maturity or upon earlier redemption or
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repayment) will be made by check drawn on the
Trustee (or another Person appointed by the
Trustee) and mailed by the Trustee to the
Person entitled thereto as provided in such
Note and the Indenture. Following each
Regular Record Date and Special Record Date,
the Trustee will furnish the Company with a
list of interest payments to be made on the
following Interest Payment Date for each
Certificated Note and in total for all
Certificated Notes. Interest at Maturity or
upon earlier redemption or repayment will be
payable to the Person to whom the payment of
principal is payable. The Trustee will be
responsible for withholding taxes on interest
paid on Certificated Notes as required by
applicable law. If any Interest Payment Date
for or the Maturity or redemption or
repayment date of a Certificated Note is not
a Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date or Maturity or
redemption or repayment date, as the case may
be.
Procedure for
Rate Setting and
Posting: The Company and the Agents will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Certificated Notes that
may be sold as a result of the solicitation
of orders by the Agents. If the Company
decides to set prices of, and rates borne by,
any Certificated Notes in respect of which
the Agents are to solicit orders (the setting
of such prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates previously
posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
Acceptance and
Rejection of
Offers: Unless otherwise instructed by the Company,
each Agent will advise the Company promptly
by telephone of all offers to purchase
Certificated Notes received by such Agent,
other than those rejected by it in whole or
in part in the reasonable exercise of its
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57
discretion. Unless otherwise agreed by the
Company and each of the Agents, the Company
has the sole right to accept offers to
purchase Notes and may reject any such offer
in whole or in part. Before accepting any
offer to purchase a Certificated Note to be
settled in less than three Business Days, the
Company shall verify that the Trustee will
have adequate time to prepare and
authenticate such Note.
Preparation of
Pricing
Supplement: If any offer to purchase a Certificated Note
is accepted by or on behalf of the Company,
the Company will prepare a pricing supplement
(a "Pricing Supplement") reflecting the terms
of such Note and will arrange to have such
Pricing Supplement filed with the Commission
via XXXXX in accordance with the applicable
paragraph of Rule 424(b) under the Act and
will supply at least ten copies thereof (and
additional copies if requested) to the Agent
which presented the order (the "Presenting
Agent") to the address specified in Schedule
I to the Agreement. The Presenting Agent
will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser
of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached
(other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered to
the Presenting Agent and such Presenting
Agent's delivery of such Note against receipt
of immediately available funds shall, with
respect to such Note, constitute
"settlement." All orders accepted by the
Company will be settled on the fifth Business
Day following the date of sale of such
Certificated Note pursuant to the timetable
for settlement set forth below, unless the
Company, the Trustee and the purchaser agree
to settlement on a later date which shall be
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no earlier than the next Business Day
following the date of sale.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company through
an Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the
following settlement information, in
time for the Trustee to prepare and
authenticate the required Note:
1. Name in which such Certificated
Note is to be registered
("Registered Owner").
2. Address of the Registered Owner
and address for payment of
principal and interest.
3. Taxpayer identification number
of the Registered Owner (if
available).
4. Principal amount.
5. Stated Maturity.
6. In the case of a Fixed Rate
Certificated Note, the
interest rate or, in the case
of a Floating Rate
Certificated 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), maximum interest
rate (if any), Interest
Payment Period, Interest
Payment Dates and Regular
Record Dates or, in the case
of Indexed Certificated
Notes, the Denominated
Currency, Indexed Currency,
Face Amount, Base Exchange
Rate, Determination Agent and
Reference Dealers.
7. Specified Currency and whether
the option to elect payment
in a Specified Currency
applies and if
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the Specified Currency is not
U.S. dollars, the authorized
denominations.
8. Redemption, repayment or
extension provisions, if any.
9. Settlement date.
10. Price (including currency).
11. Presenting Agent's commission,
determined as provided in
Schedule I to the Agency
Agreement.
12. Whether such Certificated Note
is issued at an original
issue discount, and, if so,
the total amount of OID, the
yield to maturity and the
initial accrual period OID.
B. The Company will advise the Trustee
by telephone (confirmed in writing
at any time on the sale date) or
electronic transmission of the
information set forth in Settlement
Procedure "A" above and the name of
the Presenting Agent. Each such
communication by the Company shall
constitute a representation and
warranty by the Company to the
Trustee 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 Note
will conform with the terms of the
Indenture and (iii) upon
authentication and delivery of such
Note, the aggregate initial offering
price of all Notes issued under the
Indenture will not exceed
$650,000,000 or the equivalent
thereof in other currencies (except
for securities represented by
securities authenticated and
delivered in exchange for or in lieu
of securities pursuant to Section
2.08, 2.09, 2.12, 3.06 or 9.05 of
any Indenture).
C. The Company will deliver to the
Trustee a pre-printed four-ply
packet for such Certificated Note,
which packet will
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contain the following documents in
forms that have been approved by the
Company, the Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent (to the
address specified in Schedule
I to the Agreement).
4. Stub Three - For the Company.
D. The Trustee will complete such
Certificated Note and authenticate
such Certificated Note and deliver
it (with the confirmation) and Stubs
One and Two to the Presenting Agent,
all in accordance with the written
directions (or oral instructions
confirmed in writing on the next
Business Day) of the Company, and
the Presenting Agent will
acknowledge receipt of the Note by
stamping or otherwise marking Stub
One and returning it to the Trustee.
Such delivery will be made only
against such acknowledgment of
receipt and evidence that
instructions have been given by the
Presenting Agent for payment to the
account of the Company at The Chase
Manhattan Bank (National
Association), in funds available for
immediate use, of an amount equal to
the price of such Note less the
Presenting Agent's commission. In
the event that the instructions
given by the Presenting Agent for
payment to the account of the
Company are revoked, the Company
will as promptly as possible wire
transfer to the account of the
Presenting Agent an amount of
immediately available funds equal to
the amount of such payment made.
E. The Presenting Agent will deliver
such Certificated Note (with the
confirmation) to the customer
against payment in immediately
payable funds. The Presenting Agent
will obtain the
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acknowledgement of receipt of such
Certificated Note by retaining Stub Two.
F. The Trustee will send Stub Three to
the Company by first-class mail.
Settlement
Procedures
Timetable: For offers of Certificated Notes solicited by
an Agent, as agent, and accepted by the
Company, Settlement Procedures "A" through
"F" set forth above shall be completed on or
before the respective times (New York City
time) set forth below:
Settlement
Procedure Time:
--------- -----
A 1:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of
and make payment for any Certificated Note,
the Presenting Agent will notify the Company
and the Trustee by telephone and return such
Certificated Note to the Trustee. Upon
receipt of such notice, the Company will
immediately wire transfer to the account of
the Presenting Agent an amount equal to the
amount previously credited to the account of
the Company in respect of such Certificated
Note. Such wire transfer will be made on the
settlement date, if possible, and in any
event not later than the Business Day
following the settlement date. If the
failure shall have occurred for any reason
other than a default by the Presenting Agent
in the performance of its obligations
hereunder and under the Agency Agreement,
then the Company will reimburse the
Presenting Agent or the Trustee, as
appropriate, on an equitable basis for its
loss of the use of the funds during the
period when they were credited to the account
of the Company. Immediately upon receipt of
the Certificated Note in respect of which
such failure occurred, the Trustee will
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cancel such Certificated Note in accordance
with the Indenture, make appropriate entries
in the Trustee's records and send such Note
to the Company.
Procedure for
Rate Changes: When the Company has determined to change the
interest rates of Certificated Notes being
offered, it will promptly advise the Agents
and the Agents will forthwith suspend
solicitation of offers. The Agents will
telephone the Company with recommendations as
to the changed interest rates. At such time
as the Company has advised the Agents of the
new interest rates, the Agents may resume
solicitation of offers. Until such time only
"indications of interest" may be recorded.
The Company will file with the Commission, in
accordance with the applicable paragraph of
Rule 424(b) under the Act, a Pricing
Supplement to the Prospectus relating to such
Notes that reflects the applicable interest
rates and other terms and will deliver copies
of such Pricing Supplement to the Agents.
Suspension of
Solicitation;
Amendments or
Supplement: Subject to the Company's representations,
warranties and covenants contained in the
Agency Agreement, the Company may instruct
each Agent to suspend solicitation of
purchases of Certificated Notes at any time.
Upon receipt of such instructions, each Agent
will forthwith suspend such solicitations
until such time as it has been advised by the
Company that such solicitations may be
resumed. If the Company decides to amend or
supplement the Registration Statements (as
defined in the Agency Agreement) filed by the
Company with the Commission with respect to
the Notes or the Prospectus relating to the
Notes, it will promptly advise each Agent and
will furnish it with the proposed amendment
or supplement, all consistent with the
Company's obligations under the Agency
Agreement. Subject to the provisions of the
Agency Agreement, the Company may file with
the Commission any such supplement to the
Prospectus relating to the Notes. The
Company will provide the Agents and the
Trustee with copies of any such supplement,
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and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule
424(b). The Company will, consistent with
such obligations, promptly advise each Agent
and the Trustee whether orders outstanding at
the time each Agent suspends solicitation may
be settled and whether copies of such
Prospectus as in effect at the time of the
suspension, together with the appropriate
Pricing Supplement, may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event
the Company determines that such orders may
not be settled or that copies of such
Prospectus and Pricing Supplement may not be
so delivered.
Delivery of
Prospectus: A copy of the Prospectus and Pricing
Supplement relating to a Certificated Note
must accompany or precede the earlier of any
written offer of such Note, delivery of such
Note, confirmation of the purchase of such
Note and payment for such Note by its
purchaser. If notice of a change in the
terms of the Certificated Notes is received
by an Agent between the time an order for a
Certificated Note is placed and the time
written confirmation thereof is sent by such
Agent to a customer or his agent, such
confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting
forth the terms in effect when the order was
placed. Subject to the preceding paragraph,
each Agent will deliver a Prospectus and
Pricing Supplement as herein described with
respect to each Note sold by it. The Company
will make such delivery if such Certificated
Note is sold directly by the Company to a
purchaser (other than any Agent).
Confirmation: For each offer to purchase a Certificated
Note solicited by any Agent and accepted by
or on behalf of the Company, the Presenting
Agent will issue a confirmation to the
purchaser, with a copy to the Company,
setting forth the details set forth above and
delivery and payment instructions.
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PART III: ADMINISTRATIVE PROCEDURES FOR BOTH BOOK-ENTRY
AND CERTIFICATED NOTES
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company,
or any Agent or the purchaser, it being
understood by all parties that payments made
by the Trustee to either the Company or any
Agent shall be made only to the extent that
funds are provided to the Trustee for such
purpose.
Authenticity of
Signatures: The Company will cause the Trustee to furnish
each Agent from time to time with the
specimen signatures of each of the Trustee's
officers, employees or agents who has been
authorized by the Trustee to authenticate
Notes, but each Agent 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 Note. The
Company will furnish the Trustee from time to
time with the specimen signatures of persons
who have been authorized by the Company to
sign Company Orders.
Payment of
Expenses: Each Agent shall forward to the Company, from
time to time (but not more often than
monthly), a statement of the out-of-pocket
expenses incurred by such Agent during that
time which are reimbursable to it pursuant to
the terms of the Agency Agreement. The
Company will remit payment promptly to such
Agent.
Advertising Costs: The Company will determine with each Agent
the amount of advertising that may be
appropriate in soliciting offers to purchase
the Notes. Advertising expenses will be paid
by the Company.
Periodic Statements
from the Trustee: Periodically, the Trustee will send to the
Company upon request a statement setting
forth the principal amount of Book-Entry
Notes Outstanding as of that date and setting
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forth a brief description of any sales of
Book-Entry Notes which the Company has
advised, but which have not yet been settled.
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EXHIBIT B
General American Transportation Corporation
Medium-Term Notes, Series F
Due from 9 Months or More from Date of Issue
TERMS AGREEMENT
__________ , 19__
General American Transportation Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated January 26, 1996, among Salomon
Brothers Inc, Xxxxxx Xxxxxxx & Co. Incorporated and you (the "Agreement"), the
undersigned agrees to purchase the following Notes of General American
Transportation Corporation:
Aggregate Principal Amount:
Currency or Currency Unit:
Interest Rate or Method of Determining:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: ____% of Principal Amount [plus accrued
interest from ___________, 19__]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in Section
6(b) of the Agreement:
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