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EXHIBIT 1.3
▇▇▇▇▇▇▇ ELECTRIC CO.
$2,000,000,000
MEDIUM-TERM NOTES
Due from 9 Months or more from Date of Issue
U.S. DISTRIBUTION AGREEMENT
September 23, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇▇ ELECTRIC CO., a Missouri corporation (the "COMPANY"), confirms
its agreement with each of you with respect to the issue and sale from time to
time by the Company of up to $2,000,000,000 (or the equivalent thereof in one or
more foreign currencies or composite currencies) aggregate initial public
offering price of its medium-term notes due from 9 months or more from date of
issue (the "Notes"). The Notes will be issued under an Indenture dated as of
December 10, 1998 (the "INDENTURE") between the Company and The Bank of New
York, as Trustee (the "TRUSTEE"), and will have the maturities, interest rates,
redemption provisions, if any, and other terms as set forth in supplements to
the Basic Prospectus referred to below.
The Company hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇") and ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇") (individually, an
"AGENT" and collectively, the "AGENTS") as its non-exclusive agents, subject to
Sections 8 and 11, for the purpose of soliciting and receiving offers to
purchase Notes from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use its best efforts to
solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as principal pursuant to
the terms of
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a terms agreement relating to such sale (a "TERMS AGREEMENT") in accordance with
the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (File No. 333-84673) for
registration of the Notes under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the offering thereof from time to time in accordance with
Rule 415 of the Rules and regulations of the Commission promulgated pursuant to
the Securities Act. Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of registering
additional Notes and in connection with which this Agreement is included or
incorporated therein by reference as an exhibit) including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the Securities Act or otherwise, are referred to
herein as the "REGISTRATION STATEMENT." The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the Securities Act of
1933, as amended (the "SECURITIES ACT"), supplements to the prospectus included
in the Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "BASIC PROSPECTUS." The term "PROSPECTUS" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "PROSPECTUS SUPPLEMENT") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT," "AMENDMENT" and "AMEND" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date, as of each
date on which the Company accepts an offer to purchase Notes (including any
purchase by an Agent pursuant to a Terms Agreement), as of each date the Company
issues and delivers Notes and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being understood
that such representations, warranties and agreements shall be deemed to relate
to the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
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(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
applicable requirements of the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the applicable
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; except
that (A) the representations and warranties set forth in this paragraph
do not apply (1) to statements or omissions in the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto based upon information furnished to the Company in writing by
an Agent expressly for use therein, (2) to that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"), of the Trustee, or (3) information, if any,
contained in the Registration Statement or Prospectus relating to the
Depository Trust Company or its book-entry system and (B) the
representations and warranties set forth in clauses 1(b)(iii) and
1(b)(iv) above, when made as of the Commencement Date or on which the
Company accepts an offer to purchase Notes, shall be deemed not to
cover information concerning an offering of particular Notes to the
extent such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(d) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable.
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(e) Each of this Agreement and any applicable Written Terms
Agreement (as hereinafter defined) has been duly authorized, executed
and delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be entitled
to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Written Terms Agreement
will not contravene any provision of applicable law or the restated
articles of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the
Indenture and any applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
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described in the Registration Statement or the Prospectus and are not
so described.
Notwithstanding the foregoing, the representations and warranties set
forth in clauses 1(b)(iii) and 1(b)(iv) and Sections 1(g) (except as to due
authorization of the Notes) and 1(h), when made as of the Commencement Date,
with respect to any Notes the payments of principal or interest on which will be
determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors, shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's actions
as agent hereunder, such Agent agrees to use its best efforts to
solicit offers to purchase Notes upon the terms and conditions set
forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt
of at least one business day's prior notice from the Company, the
Agents will forthwith suspend solicitations of offers to purchase Notes
from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed. While such solicitation is
suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a),
5(b) and 5(c); provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension
(other than by an amendment or supplement providing solely for a change
in the interest rates, redemption provisions, amortization schedules,
maturities, issuance prices or other similar terms offered on the Notes
or for a change the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Notes until the
Company has delivered such certificates, opinions and letters as such
Agent may reasonably request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the percentage set forth
below of the purchase price of such Note:
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COMMISSION
TERM 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 .525%
From 7 years to less than 8 years .550%
From 8 years to less than 9 years .575%
From 9 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .650%
From 20 years to less than 30 years .750%
30 years and beyond to be negotiated
However, if the Company otherwise agrees in writing with one or more
Agents, then such other agreed to commission rates shall apply for such
Agents.
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as agent
that in its reasonable judgment should be considered by the Company.
The Company shall have the sole right to accept offers to purchase
Notes and may reject any offer in whole or in part. Each Agent shall
have the right in its discretion, reasonably exercised, to reject any
offer to purchase Notes that it considers to be unacceptable, and any
such rejection shall not be deemed a breach of its agreements contained
herein. The procedural details relating to the issue and delivery of
Notes sold by the Agents as agents and the payment therefor shall be as
set forth in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement.
In connection with each such sale, the Company will enter into a Terms
Agreement that will provide for the sale of such Notes to and the
purchase thereof by such Agent. Each Terms Agreement will take the form
of either (i) a written agreement between such Agent and the Company,
which may be substantially in the form of Exhibit A hereto (a "WRITTEN
TERMS AGREEMENT"), or (ii) an oral agreement between such Agent and the
Company confirmed in writing by such Agent and the Company.
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An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each
Terms Agreement shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the interest
rate and interest rate formula, if any, applicable to such Notes and
any other terms of such Notes. Each such Terms Agreement may also
specify any requirements for officers' certificates, opinions of
counsel and letters from the independent public accountants of the
Company pursuant to Section 4 hereof. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes by
such Agent.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a
Terms Agreement, the procedural details relating to the issue and
delivery of Notes purchased by an Agent as principal and the payment
therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Notes to be purchased by an Agent
pursuant to a Terms Agreement is referred to herein as a "SETTLEMENT
DATE."
Unless otherwise specified in a Terms Agreement, if an Agent
is purchasing Notes as principal such Agent may resell such Notes to
other dealers. Any such sales may be at a discount, which shall not
exceed the amount set forth in the Prospectus Supplement relating to
such Notes.
(c) Administrative Procedures. The Agents and the Company
agree to perform the respective duties and obligations specifically
provided to be performed in the Medium-Term Notes Administrative
Procedures (attached hereto as Exhibit B) (the "ADMINISTRATIVE
PROCEDURES"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and
the Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's
obligation to begin soliciting offers to purchase Notes as an agent of
the Company shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Agents, not later than 5:00 p.m., New York City time,
on the date hereof, or at such other time and/or place as the Agents
and the Company may agree upon in writing, but in no event later than
the day prior to the earlier of (i) the date on which the Agents begin
soliciting offers to purchase Notes and (ii) the first date on which
the Company accepts any offer by an Agent to purchase Notes pursuant to
a Terms
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Agreement. The date of delivery of such documents is referred to herein
as the "COMMENCEMENT DATE."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not
joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not
file any Prospectus Supplement relating to the Notes or any amendment
to the Registration Statement unless the Company has previously
furnished to the Agents copies thereof for their review and will not
file any such proposed supplement or amendment to which the Agents
reasonably object; provided, however, that (i) the foregoing
requirement shall not apply to any of the Company's filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, copies of which filings the Company will
cause to be delivered to the Agents promptly after being transmitted
for filing with the Commission and (ii) any Prospectus Supplement that
merely sets forth the terms or a description of particular Notes shall
only be reviewed and approved by the Agent or Agents offering such
Notes. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the
Securities Act. The Company will promptly advise the Agents (i) of the
filing of any amendment or supplement to the Basic Prospectus (except
that notice of the filing of an amendment or supplement to the Basic
Prospectus that merely sets forth the terms or a description of
particular Notes shall only be given to the Agent or Agents offering
such Notes), (ii) of the filing and effectiveness of any amendment to
the Registration Statement, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or, to
the knowledge of the Company, 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 or notice of suspension of
qualification and, if issued, to obtain as soon as reasonably possible
the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
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(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended
or supplemented, would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then
amended or supplemented, is delivered to a purchaser, not misleading,
or if, in the reasonable opinion of the Agents communicated to the
Company or in the opinion of the Company, it is necessary at any time
to amend or supplement the Prospectus, as then amended or supplemented,
to comply with applicable securities law, the Company will immediately
notify the Agents by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by
the Company, the Agents shall forthwith suspend such solicitation and
cease using the Prospectus, as then amended or supplemented. If the
Company shall decide to amend or supplement the Registration Statement
or Prospectus, as then amended or supplemented, it shall so advise the
Agents promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, reasonably satisfactory in
all respects to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to the Agents in such quantities as they may
reasonably request. If any documents, certificates, opinions and
letters furnished to the Agents pursuant to Sections 3(f), 5(a), 5(b)
and 5(c) in connection with the preparation and filing of such
amendment or supplement are reasonably satisfactory in all respects to
the Agents, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an amendment
to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other
provision of this paragraph, until the distribution of any Notes an
Agent may own as principal has been completed, if any event described
above in this paragraph occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, reasonably satisfactory in all respects
to such Agent, will supply such amended or supplemented Prospectus to
such Agent in such quantities as it may reasonably request and shall
furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b) and 5(c)
such documents, certificates, opinions and letters as it may reasonably
request in connection with the preparation and filing of such amendment
or supplement.
(c) As soon as practicable, the Company will make generally
available to its security holders and to each of the Agents an earnings
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statement or statements (which need not be audited) of the Company and
its subsidiaries that will satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(d) The Company will furnish to each Agent, without charge, a
signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as such Agent may reasonably request.
(e) The Company will endeavor to arrange for the qualification
of the Notes for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Agents shall reasonably request and to
maintain such qualifications for as long as the Agents shall reasonably
request; provided, however, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities; (ii)
file a general consent to service of process; or (iii) subject itself
to taxation in any such jurisdiction.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto,
the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of
its obligations hereunder or thereunder as the Agents may from time to
time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including:
(i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of
Section 3(e), including filing fees and the reasonable fees and
disbursements of counsel
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for the Agents in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda, (v) the
printing and delivery to the Agents in quantities as hereinabove stated
of copies of the Registration Statement and all amendments thereto and
of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Agents of copies of any Blue Sky or legal
investment memoranda, (vii) any fees charged by rating agencies for the
rating of the Notes, (viii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors and
(ix) the reasonable fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Notes,
including any opinions to be rendered by such counsel hereunder, and
(x) any out-of-pocket expenses incurred by the Agents; provided that
any advertising expenses incurred by the Agents shall have been
approved by the Company. Further provided, except as set forth above,
the Agents will pay all of their own costs and expenses.
(i) During the period beginning the date of any Terms
Agreement and continuing to and including the Settlement Date with
respect to such Terms Agreement, the Company will not, without such
Agent's prior written consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to such
Notes (other than (i) the Notes that are to be sold pursuant to such
Terms Agreement, (ii) Notes previously agreed to be sold by the Company
and (iii) commercial paper issued in the ordinary course of business),
except as may otherwise be provided in such Terms Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes pursuant to any Terms Agreement and the
obligation of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof and to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed (in the case of an Agent's obligation
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of an Agent's or any other purchaser's obligation to purchase Notes, at
the time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
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financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the reasonable
judgment of the relevant Agent, is material and adverse and
that makes it, in the reasonable judgment of such Agent,
impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension
or material limitation of trading generally on or by, as the
case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (B)
suspension of trading of any securities of the Company on any
exchange or in any over-the-counter market, (C) declaration of
a general moratorium on commercial banking activities in New
York by either Federal or New York State authorities or (D)
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the
judgment of the relevant Agent, is material and adverse and,
in the case of any of the events described in clauses
4(a)(ii)(A) through 4(a)(ii)(D), such event, singly or
together with any other such event, makes it, in the
reasonable judgment of such Agent, impracticable to market the
Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made;
and
(iii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(X) except, in each case described in Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant
Agent in writing by the Company prior to such solicitation or,
in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was
made, or (Y) unless, in each case described in Section
4(a)(ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such
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solicitation or, in the case of a purchase of Notes, before
the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received:
(i) The opinion, dated as of such date, of counsel
for the Company, which may be the General Counsel or any
Assistant General Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated,
is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, has the corporate power and authority
to own its property and to conduct its business as
described in the Prospectus, as then amended or
supplemented, except to the extent that the failure
to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(B) each of this Agreement and any
applicable Written Terms Agreement has been duly
authorized, executed and delivered by the Company;
(C) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general
principles of equity;
(D) the Notes have been duly authorized and,
if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the purchasers thereof on the date of such
opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations
of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors'
rights generally and general principles of equity;
(E) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Notes, the
Indenture and any
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applicable Written Terms Agreement will not
contravene any provision of applicable law or the
restated articles of incorporation or by-laws of the
Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge,
any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the
performance by the Company of its obligations under
this Agreement, the Notes, the Indenture and any
applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the
various states in connection with the offer and sale
of the Notes;
(F) the statements (1) in the Prospectus, as
then amended or supplemented, under the captions
"Description of the Debt Securities," (2) in the
Registration Statement under Item 15, (3) in "Item 3
- Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference
in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements
constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present,
in all material respects, the information called for
with respect to such legal matters, documents and
proceedings and fairly summarize, in all material
respects, the matters referred to therein;
(G) to the best of such counsel's knowledge,
there are no legal or governmental proceedings
pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries
is subject that are required to be described in the
Registration Statement or the Prospectus, as then
amended or supplemented, and are not so described or
of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus, as then
amended or supplemented, or to be filed or
incorporated by reference as
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15
exhibits to such Registration Statement that are not
described, filed or incorporated as required;
(H) such counsel (1) is of the opinion that
each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus,
as then amended or supplemented (except for financial
statements and schedules included therein as to which
such counsel need not express any opinion) complied
when so filed as to form in all material respects
with the applicable requirements of the Exchange Act
and the applicable rules and regulations of the
Commission thereunder, (2) has no reason to believe
that (except for financial statements and schedules
as to which such counsel need not express any belief
and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement,
as then amended, if applicable, when such part became
effective, contained and as of the date such opinion
is delivered, contains any untrue statement of a
material fact or omitted or omits to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, (3) is of
the opinion that the Registration Statement and
Prospectus, as then amended or supplemented, if
applicable (except for financial statements and
schedules included therein as to which such counsel
need not express any opinion) comply as to form in
all material respects with the applicable
requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder
and (4) has no reason to believe that (except for
financial statements and schedules as to which such
counsel need not express any belief) the Prospectus,
as then amended or supplemented, if applicable, as of
the date such opinion is delivered contains any
untrue statement of a material fact or omits 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
that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the
opinion and belief set forth in clauses 4(b)(i)(H)(3)
and 4(b)(i)(H)(4) above shall be deemed not to cover
information concerning an offering of particular
Notes to the extent such information will be set
forth in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Agents, covering the matters in
Sections
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4(b)(i)(C), 4(b)(i)(D) and 4(b)(i)(F) (but only as to the
statements in the Prospectus, as then amended or supplemented,
under the captions "Description of the Debt Securities,"
"Supplemental Plan of Distribution," and "Plan of
Distribution"), and clauses 4(b)(i)(H)(2), 4(b)(i)(H)(3) and
4(b)(i)(H)(4).
Notwithstanding the foregoing, the opinions described
in Sections 4(b)(i)(D) (except as to due authorization of the
Notes) and 4(b)(i)(E) and clauses 4(b)(i)(F)(1), 4(b)(i)(H)(3)
and 4(b)(i)(H)(4), when contained in an opinion delivered on
the Commencement Date or pursuant to Section 5(b), shall be
deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to
Notes the payments of principal or interest on which will be
determined by reference to one or more currency exchange
rates, commodity prices, equity indices or other factors.
With respect to Section 4(b)(i)(H) above, such
counsel may state that their opinion and belief are based upon
their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With
respect to clauses 4(b)(i)(H)(2), 4(b)(i)(H)(3) and
4(b)(i)(H)(4), ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), but are without
independent check or verification, except as specified.
The opinion of counsel for the Company described in
Section 4(b)(i) above shall be rendered to the Agents at the
request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer
of the Company, to the effect set forth in Section 4(a)(iii) and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of such date and that the
Company has
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17
complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the Company's
independent public accountants shall have furnished to the relevant
Agents a letter or letters, dated the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory
to such Agents containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
(i) an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules, maturities, issuance
prices or other similar terms offered on the Notes or for a change the Agents
deem to be immaterial, or (ii) an amendment or supplement by filing of a
Quarterly Report on Form 10-Q or a Current Report on Form 8-K which the Company
deems to be immaterial), the Company will deliver or cause to be delivered
forthwith to each Agent a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to the Agents, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of the general counsel or the assistant general counsel for
the Company. Any such opinion shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to the Agents
and shall be of the same tenor as the opinion referred to in Section 4(b)(i),
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to an Agent may furnish to
each Agent a letter to the effect that such Agent may rely on such last opinion
to the same extent as though it were dated the date of such letter (except that
statements in
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18
such last opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish such Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agent, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter; provided, however, that each time amended or supplemented
financial information is incorporated by reference in the Prospectus to the
Company's Quarterly Report on Form 10-Q or a Current Report on Form 8-K, the
letter required to be delivered pursuant to this Section 5(c) shall be delivered
to an Agent only upon its reasonable request.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls any
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any such Agent or controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information furnished to the Company in writing by such
Agent expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
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19
sought pursuant to either Section 6(a) or 6(b) above, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such separate counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇.▇.
▇▇▇▇▇▇ or, if neither ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ nor ▇.▇. ▇▇▇▇▇▇ is reasonably likely to
become an indemnified party, by the Agents that are indemnified parties, in the
case of parties indemnified pursuant to Section 6(a) above, and by the Company,
in the case of parties indemnified pursuant to Section 6(b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any
losses,
19
20
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Agent on the other hand from the offering of such Notes or
(ii) if the allocation provided by clause 6(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 6(d)(i) above but also the relative
fault of the Company on the one hand and each Agent on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and each Agent on the other hand in connection with the offering of such Notes
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company bear to the total discounts and commissions received by each Agent
in respect thereof. The relative fault of the Company on the one hand and each
Agent on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Agent's obligation to contribute pursuant to this
Section 6 shall be several in the proportion that the principal amount of the
Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes referred to in Section 6(d) that were offered and
sold to the public through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent
20
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misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company, its
officers and the Agents set forth in or made pursuant to this Agreement or any
Terms Agreement will remain in full force and effect regardless of (i) any
termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason not attributable to the Agent. If the
Company shall default in its obligations to deliver Notes to a purchaser whose
offer it has accepted, the Company shall hold the relevant Agent harmless
against any loss, claim, damage or liability arising from or as a result of such
default that is not attributable to the Agent and shall, in particular, pay to
such Agent the commission it would have received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 10 and 13 shall survive; provided that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 1, 2(b), 2(c), 3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also
survive until such delivery has been made.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, will be mailed,
delivered
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or telefaxed and confirmed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: Manager, Credit Department (telefax number:
212-761-0780), with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: Managing Director, Debt Syndicate, or, if sent to ▇.▇. ▇▇▇▇▇▇, will
be mailed, delivered or telefaxed and confirmed to ▇.▇. ▇▇▇▇▇▇ at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Medium-Term Note Trading Desk, 3rd
Floor (telefax number: 212-648-5909), or, if sent to the Company, will be
mailed, delivered or telefaxed and confirmed to the Company at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇. ▇. Box 4100, St. Louis, Missouri, 63136, Attention: Assistant
General Counsel (telefax number: 314-553-3713).
10. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent; provided that the Company may from time to time, but without the
consent of any Agent, (i) amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto, or (ii) appoint one or more firms as a
dealer on a reverse inquiry basis, whereupon such firm shall become an Agent
hereunder on the same terms and conditions as the other Agents that are parties
hereto but only to the extent and for the purpose of an individual reverse
inquiry transaction or as otherwise agreed to between the Company and such
reverse inquiry dealer. The Company shall give reasonably prompt notice to the
other Agents of each additional Agent. The additional Agent(s) shall sign any
agreement, amendment or supplement giving effect to the addition of any such
firm as an Agent under this Agreement in accordance with the provisions of
Section 11.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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23
[THIS SPACE IS INTENTIONALLY LEFT BLANK.]
23
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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 your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
▇▇▇▇▇▇▇ ELECTRIC CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Vice President, Finance
And Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
24
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EXHIBIT A
▇▇▇▇▇▇▇ ELECTRIC CO.
MEDIUM-TERM NOTES
TERMS AGREEMENT
-----------------, ----
[NAME OF ISSUER]
[ADDRESS]
Attention:
Re: DISTRIBUTION AGREEMENT DATED , 1999 (THE "DISTRIBUTION
----------
AGREEMENT")
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
NAME PRINCIPAL AMOUNT OF
NOTES
--------------------------------------------------------- ---------------------
[Agent]
[Insert syndicate list](1)
---------------------
Total................................ $
==================
----------------------------------
(1) Delete if the transaction will not be syndicated.
26
The Notes shall have the following terms:
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of modified Index maturity:
payment upon
acceleration:
Price to public: Issue price: Spread:
Settlement date and time: Amortization schedule: Spread multiplier:
Place of delivery: Alternate rate event spread:
Specified currency: Initial interest rate:
Maturity date: Initial interest reset date:
Initial accrual period OID: Interest reset dates:
Total amount of OID: Interest reset period:
Original yield to maturity: Maximum interest rate:
Optional repayment date(s): Minimum interest rate:
Optional redemption date(s): Interest payment period:
Initial redemption date: Interest payment dates:
Initial redemption percentage: Calculation agent:
Annual redemption percentage
decrease:
Other terms:
Exhibit A - Page 2
27
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9
through 14, as applicable, of the Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed to have the
same force and effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall
fail or refuse to purchase Notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth of
the aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or Agents
shall fail or refuse to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Notes to be purchased on such date, and arrangements satisfactory to
and the Company for the purchase of such Notes are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Agent or the Company. In any such case either
or the Company shall have the right to postpone the Settlement Date
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Agent from liability in respect of any default
of such Agent under this Agreement.] (2)
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 13 of the Distribution Agreement shall
survive for the purposes of this Agreement.
----------------------------------
(2) Delete if the transaction will not be syndicated.
28
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: ________________
[NAME OF RELEVANT
AGENT(S)]
By:
----------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇▇ ELECTRIC CO.
By:
----------------------------------
Name:
Title:
29
EXHIBIT B
▇▇▇▇▇▇▇ ELECTRIC CO.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
---------------------------------
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes (the "Notes"), on a continuous basis by
▇▇▇▇▇▇▇ ELECTRIC CO. (the "Company") pursuant to the Distribution Agreement,
dated as of September 23, 1999 (the "Distribution Agreement") among the Company
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. (the
"Agents"). The Notes will be issued under an Indenture dated as of December 10,
1998 (the "Indenture") between the Company and THE BANK OF NEW YORK, as trustee
(the "Trustee"). In the Distribution Agreement, the Agents have agreed to use
best efforts to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
sold through an Agent, as agent of the Company. An Agent, as principal, may also
purchase Notes for its own account, and if requested by such Agent, the Company
and such Agent will enter into a terms agreement (a "Terms Agreement"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes purchased
by an Agent, as principal, unless otherwise specified in the applicable Terms
Agreement.
The Trustee will be the Registrar, Authenticating Agent, Calculation
Agent, Exchange Rate Agent and Paying Agent for the Notes and will perform the
duties specified herein. Each Note will be represented by either a Global
Security (as defined below) delivered to the Trustee, as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the holder
thereof or a person designated by such holder (a "Certificated Note"). Except as
set forth in the Indenture, an owner of a Book-Entry Note will not be entitled
to receive a Certificated Note.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof as they may subsequently be amended as the
result of changes in DTC'S operating procedures. Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Notes or any
prospectus supplement relating to the Notes shall be used herein as therein
defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
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PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of September 23, 1999, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of
August 17, 1989 (the "MTN Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000
principal amount of all such Notes that have the same
Original Issue Date, Maturity Date and other terms.
Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global
Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security
(or any portion thereof), its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security (or if
no such payment or provision has been made, the
original issuance date of the predecessor Global
Security), regardless of the date of authentication of
such subsequently issued Global Security. No Global
Security will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts
of (i) with respect to Notes denominated in U.S.
dollars, $1,000 or any amount in excess thereof which
is an integral multiple of $1,000 and (ii) with respect
to Notes denominated in a specified currency other than
U.S. dollars, the equivalent of U.S. $1,000 (rounded to
an integral multiple of 1,000 units of such specified
currency), or any amount in excess thereof which is an
integral multiple of 1,000 units of such specified
currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of
such specified currency as published by the Federal
Reserve Bank of New York on the Business Day
immediately preceding the date of issuance. Global
Securities will be denominated in principal amounts not
in excess of U.S.
B-2
31
$200,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of $200,000,000
would, but for the preceding sentence, be represented
by a single Global Security, then one Global Security
will be issued to represent each U.S. $200,000,000
principal amount of such Book-Entry Note or Notes and
an additional Global Security will be issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted
of Pricing by or on behalf of the Company, the Company will
Supplement: prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note. The Company (i) will
arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act and (ii) will, as soon as
possible and in any event not later than the later of
(x) the date on which such Pricing Supplement is filed
with the Commission or (y) the date of settlement,
deliver the number of copies of such Pricing Supplement
to the relevant Agent as such Agent shall reasonably
request.
In each instance that a Pricing Supplement is prepared,
the relevant 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 Note shall constitute "settlement"
with respect to such Note. All offers accepted by the
Company will be settled on the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another day, which shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement)
shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note
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32
and of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed-Rate Book-Entry Note, the
Interest Rate, whether such Note will pay interest
annually or semi-annually and whether such Note is
an Amortizing Note, and, if so, the amortization
schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period,
Initial Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), and the Maximum Interest
Rate (if any).
4. Redemption or repayment provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission (if any) determined as
provided in the Distribution Agreement.
9. Whether the Note is an Original Issue Discount
Note (an "OID Note"), and if it is an OID Note, the
total amount of OID, the yield to maturity, the
initial accrual period OID and the applicability of
Modified Payment upon Acceleration (and, if so, the
Issue Price).
10. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date and
the Final Maturity Date.
11. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
12. Whether the Company has the option to reset the
Interest Rate, the Spread or the
B-4
33
Spread Multiplier of the Note.
13. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission(s) (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above. The Trustee will then
assign a CUSIP number to the Global Security
representing such Note and will notify the Company and
the relevant Agent of such CUSIP number by telephone as
soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and the CUSIP Service Bureau of Standard
& Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds the
related DTC Record Date (such Record Date shall be
the date fifteen calendar days immediately
preceding the applicable Interest Payment Date
unless otherwise defined in the Note) and, if
known, the amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
6. The number of participant accounts to be
maintained by DTC on behalf of the relevant Agent
and the Trustee.
D. The Trustee will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver
B-5
34
order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the
relevant Agent's participant account and (ii) debit
such Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the
price of such Note less such Agent's commission (if
any). The entry of such a deliver order shall
constitute a representation and warranty by the Trustee
to DTC that (a) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(b) the Trustee is holding such Global Security
pursuant to the MTN Certificate Agreement.
G. Unless the relevant Agent is the end purchaser of
such Note, such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such Note
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such
Agent for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee will credit to the account of the
Company maintained at Chase Manhattan Bank, New York,
New York, ABA # ▇▇▇▇▇▇▇▇▇, Acct # ▇▇▇-▇-▇▇▇▇▇ or such
other bank as specified by the Company, in immediately
available funds the amount transferred to the Trustee
in accordance with Settlement Procedure "F".
J. Unless the relevant Agent is the end purchaser of
such Note, such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which
the Company has advised the Trustee that have not yet
been
B-6
35
settled.
Settlement For sales by the Company of Book-Entry Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement) for settlement on the first
Business Day after the sale date, Settlement Procedures
"A" through "J" set forth above shall be completed as
soon as possible but not later than the respective
times in New York City set forth below:
Settlement
Procedure Time
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the first Business
Day before the settlement date. Settlement Procedure
"H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
Failure If the Trustee fails to enter an SDFS deliver order
to Settle with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account,
provided that the Trustee's participant account
B-7
36
contains a principal amount of the Global Security
representing such Note that is at least equal to the
principal amount to be debited. If a withdrawal message
is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark
such Global Security "canceled," make appropriate
entries in the Trustee's records and send such canceled
Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance
with the procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be canceled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F"
and "G", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a
Global Security representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
B-8
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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 issuance date of the predecessor Certificated
Note, regardless of the date of authentication of such
subsequently issued Certificated Note.
Preparation If any offer to purchase a Certificated Note is
of Pricing accepted by or on behalf of the Company, the Company
Supplement: will prepare a Pricing Supplement reflecting the terms
of such Note. The Company (i) will arrange to file such
Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the
Act and (ii) will, as soon as possible and in any event
not later than the later of (x) the date on which such
Pricing Supplement is filed with the Commission or (y)
the date of settlement, deliver the number of copies of
such Pricing Supplement to the relevant Agent as such
Agent shall reasonably request.
In each instance that a Pricing Supplement is prepared,
the relevant 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 relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the
Company will be settled on the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another date, which date shall be no earlier than the
next Business Day.
B-9
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Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent
(unless otherwise specified pursuant to a Terms
Agreement) shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Certificated Note and
of the following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, whether such Note will pay
interest annually or semi-annually and whether such
Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if any), and the
Maximum Interest Rate (if any).
7. Redemption or repayment provisions (if any)
8. Settlement date and time (Original Issue Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission (if any) determined as
provided in the Distribution Agreement.
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39
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon Acceleration
(and if so, the Issue Price).
15. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date and
the Final Maturity Date.
16. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
17. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread Multiplier
of the Note.
18. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission(s) (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee, in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1 the form of Note for Authentication with
customer confirmation.
2. one copy of the Note for the Trustee ("Stub
One").
3. one copy of the Note for the relevant Agent
("Stub Two").
4. one copy of the Note for the Company ("Stub
Three").
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such Agent
will acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that
B-11
40
instructions have been given by such Agent for payment
to the account of the Company at Chase Manhattan Bank,
New York, New York, ABA # ▇▇▇▇▇▇▇▇▇, Acct #
▇▇▇-▇-▇▇▇▇▇, or to such other account as the Company
shall have specified to such Agent and the Trustee, in
immediately available funds, of an amount equal to the
price of such Note less such Agent's commission (if
any).
E. Unless the relevant Agent is the end purchaser of
such Note, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain the
acknowledgment of receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also send
to the Company a statement setting forth the principal
amount of the Notes outstanding as of that date under
the Indenture and setting forth a brief description of
any sales of which the Company has advised the Trustee
that have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement), Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times in New York City set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
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 If a purchaser fails to accept delivery of and make
to Settle: payment for any Certificated Note, the relevant Agent
will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of
such notice, the Company will immediately wire transfer
to the account of such Agent an amount equal to the
price of such Note less such Agent's commission in
respect of such Note (if any). Such wire
B-12
41
transfer will be made on the settlement date, if
possible, and in any event not later than the Business
Day following the settlement date. If the failure shall
have occurred for any reason other than a default by
such Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then
the Company will reimburse such Agent or the Trustee,
as appropriate, on an equitable basis for its loss of
the use of the funds during the period when they were
credited to the account of the Company. Immediately
upon receipt of the Certificated Note in respect of
which such failure occurred, the Trustee will mark such
Note "canceled," make appropriate entries in the
Trustee's records and send such Note to the Company.
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