EXHIBIT 1
U.S. $100,000,000 (or the U.S. dollar equivalent at the time of
issue in certain specified foreign currencies or currency units.)
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
April 19, 1994
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
SALOMON BROTHERS INC
c/o LEHMAN BROTHERS
LEHMAN BROTHERS INC.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Dear Sirs:
CBI Industries, Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent"
and collectively, the "Agents") (which terms shall, for all
purposes of this Agreement, include Lehman Special Securities Inc.,
an affiliate of Lehman Brothers Inc.) with respect to the issuance
and sale by the Company of up to an aggregate of $100,000,000* in
gross proceeds of its Medium-Term Notes, Series A (the "Notes").
The Notes are to be issued from time to time pursuant to an
indenture, dated as of March 1, 1994 (as it may be supplemented or
amended from time to time, the "Indenture"), between the Company
and Chemical Bank, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest
rates or interest rate formulas, specified currency, issue price,
redemption and repayment provisions and other terms set forth in
the Prospectus referred to in Section 1(a) as it may be amended or
supplemented from time to time, including any supplement providing
for the interest rate, maturity and other terms of any Note (a
"Pricing Supplement"). The Notes will be issued, and the terms
thereof established, from time to time, by the Company in
accordance with the Indenture and the Procedures referred to below.
This Agreement shall only apply to sales of the Notes and not to
sales of any other securities or evidences of indebtedness of the
Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell the Notes directly
on its own behalf, the Company hereby (i) appoints each of the
Agents as the agent of the Company for the purpose of soliciting
and receiving offers to purchase Notes from the Company and (ii)
agrees that whenever the Company determines to sell Notes directly
to an Agent as principal it will enter into a separate agreement
(each a "Purchase Agreement"). Each such Purchase Agreement,
whether oral (and confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit C hereto,
relating to such sale in accordance with Section 2(e) hereof.
SECTION 1. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent as of the
date hereof, as of the Closing Date (defined herein) and as of the
times referred to in Sections 6(a) and 6(b) hereof (the Closing
Date and each such time being hereinafter sometimes referred to as
a "Representation Date"), as follows:
(a) General. A registration statement on Form S-3 with
respect to the Notes (i) has been prepared by the Company in
conformity in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed with the Commission
under the Act and (iii) has become effective under the Act. If any
post-effective amendment to such registration statement has been
filed with the Commission prior to the execution and delivery of
this Agreement, the most recent such amendment has been declared
effective by the Commission. Copies of that registration statement
as amended to date have been delivered by the Company to you as an
Agent. As used in this Agreement, "Effective Time" means the date
and the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means that same
registration statement when it becomes effective under the Act,
including any documents incorporated by reference at that time; and
"Prospectus" means the prospectus or prospectus supplement as filed
with the Commission by the Company with the consent of the Agents
pursuant to Rule 424(b) of the Rules and Regulations, relating to
the offering and sale of the Notes. Reference made herein to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein as of the date of such Prospectus
and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any documents filed under
the Securities Exchange Act of 1934 (the "Exchange Act") after the
date of such Prospectus and incorporated by reference in such
Prospectus. The Company has not received any order from the
Commission or otherwise preventing or suspending the use of any
Prospectus. For purposes of this Agreement, "Rules and
Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Exchange Act as applicable.
(b) Registration Statement, Prospectus and Indenture:
Contents. The Registration Statement and the Prospectus conform,
and any post-effective amendment to the Registration Statement and
the Prospectus as amended or supplemented, including any document
filed by the Company after the Effective Date pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Notes ("Incorporated
Documents"), will conform, as of the applicable Representation Date
and at all times during each period during which, in the opinion of
counsel for the Agents, a prospectus relating to the Notes is
required to be delivered under the Act (each a "Marketing Period"),
in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the Rules and Regulations. The
Indenture conforms to the requirements of, and has been qualified
under, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the applicable rules and regulations
thereunder. The Registration Statement (as of the Effective Time)
did not, and will not as of the applicable Representation Date and
at all times during each Marketing Period, and any post-effective
amendment thereto, the Prospectus and the Prospectus as amended or
supplemented (including Incorporated Documents) as of the date of
filing, and at all times during each Marketing Period, will not,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to
that part of the Registration Statement which consists of the
Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of the Trustee or as to information contained
in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Company by the Trustee or the Agents specifically for
inclusion therein.
(c) No Defaults. Neither the Company nor any of its
significant subsidiaries (as defined in Rule 405 of the Rules and
Regulations) is in violation of its certificate of incorporation or
by-laws or is in default under any agreement, indenture or
instrument the effect of which violation or default would be
material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement and the
transactions contemplated hereby, including without limitation the
issuance and sale of the Notes by the Company, will not conflict
with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a breach or
default under, any agreement, indenture or instrument, or result in
a violation of the certificate of incorporation or by-laws of the
Company or any of its subsidiaries or of any order, rule or
regulation of any court or governmental agency having jurisdiction
over the Company, any of its subsidiaries or their property.
Except as required by the Act, the Exchange Act and applicable
state securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this
Agreement.
(d) Due Organization: Company. The Company has been duly
incorporated and is validly existing and in good standing as a
corporation under the laws of the State of Delaware, with an
authorized and outstanding capital stock as set forth in the
Prospectus, is qualified to do business as a foreign corporation
and is in good standing in each of the several jurisdictions where
such qualification is required for the conduct of its business or
the lease or ownership of its principal properties and has all
necessary power and authority to transact its business as described
in the Prospectus.
(e) Due Organization: Subsidiaries. Each of the
subsidiaries of the Company has been duly incorporated and is
validly existing and in good standing as a corporation under the
laws of its jurisdiction of incorporation, is qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is required for the conduct
of its business or the lease or ownership of its principal
properties, in each case except where the failure to be duly
incorporated, in good standing or so qualified would not materially
adversely affect the business of the Company and its subsidiaries
taken as a whole. Each of the subsidiaries has all necessary power
and authority to transact the business in which it is presently
engaged.
(f) Material Adverse Change. Except as set forth in or
contemplated by the Registration Statement and the Prospectus,
since the date of the latest audited financial statements of the
Company included in the Registration Statement and Prospectus,
there has not been any material adverse change in the condition of
the Company and its subsidiaries taken as a whole, financial or
otherwise, or in the results of operations or prospects of the
Company and its subsidiaries taken as a whole; except as set forth
in or contemplated by the Registration Statement or the Prospectus,
neither the Company nor any of its subsidiaries has incurred any
liability or obligation or entered into any transactions, in each
case material to the Company and its subsidiaries taken as a whole,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus otherwise than in the
ordinary course of business; and, there has been no change in the
consolidated financial position of the Company and its subsidiaries
since the date of the most recent audited balance sheet included or
incorporated by reference in the Registration Statement except (i)
changes in the ordinary course of business which have not been,
either individually or in the aggregate, materially adverse to the
Company or (ii) changes described in or contemplated by the
Registration Statement and the Prospectus.
(g) Permits; Intellectual Property. The Company holds all
material tariffs, licenses, certificates and permits from
governmental authorities necessary for the conduct of its business
as described in the Prospectus and owns or possesses adequate
rights to use all material patents, patent applications,
trademarks, service marks, tradenames, trademark registrations,
service mark registrations, copyrights and licenses necessary for
the conduct of such business and has not received any notice of
conflict with the asserted rights of others in respect thereof.
(h) Ownership of Property. The Company and its subsidiaries
have good and marketable title in fee simple to all real property
owned by them and good and marketable title to such of their
personal property owned by them that is, when considered either
individually or in the aggregate, necessary to the operations of
the Company or any of its subsidiaries, as the case may be, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries that are, when
considered either individually or in the aggregate, necessary to
the operations of the Company or any of its subsidiaries, as the
case may be, are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(i) Legal Proceedings. Except as set forth in the
Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has any litigation or governmental,
administrative or other proceeding pending or threatened of a
character which (a) could reasonably be expected to result in a
judgment or decree having a material adverse effect on the business
or financial condition of the Company and its subsidiaries taken as
a whole, or (b) is required to be disclosed in the Registration
Statement or the Prospectus.
(j) Compliance with Law. The Company is not in violation of
any law, ordinance, governmental rule or regulation or court decree
to which it may be subject nor has it failed to obtain any tariff,
license, permit, franchise or other governmental authorization
necessary to the ownership of its property or to the conduct of its
business, which violation or failure to obtain is likely to have a
material adverse effect on the condition (financial or other),
properties, prospective results of operations or net worth of the
Company and its subsidiaries, taken as a whole.
(k) Accountants. To the best of the Company's knowledge,
Arthur Andersen & Co., whose report appears in the Company's Annual
Report on Form 10-K for the most recent year which is incorporated
in the Prospectus by reference, are independent public accountants
as required by the Act and the Rules and Regulations.
(l) Due Authorization. The filing of the Registration
Statement and the execution and delivery of this Agreement and each
applicable Purchase Agreement, if any, and the consummation of the
transactions contemplated hereby and thereby have been or will be
duly authorized by the board of directors of the Company, and all
necessary corporate action to authorize and approve the same has
been taken. The Notes have been duly authorized and, when issued,
authenticated and delivered pursuant to the Indenture against
payment of the agreed upon consideration therefor pursuant to this
Agreement, such Notes will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, which is in the form filed as an exhibit to the
Registration Statement, and will be enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity; the
Indenture has been duly authorized and is duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity; and
the Indenture conforms and the Notes, when issued, will conform to
the descriptions thereof contained in the Registration Statement
and the Prospectus. None of the Notes will be, on the Closing
Date, subject to any lien, claim, encumbrance, preemptive rights or
any other claim of any third party, other than those created or
incurred by any Agent.
(m) Common Stock. All of the authorized shares of the Common
Stock of the Company have been validly authorized and are fully
paid and nonassessable with no personal liability attaching to the
ownership thereof.
(n) Financial Statements. The consolidated financial
statements included or incorporated by reference as part of the
Registration Statement or the Prospectus present fairly, and the
financial statements in any Incorporated Document will present
fairly, as of the applicable Representation Date and at all times
during each Marketing Period, the financial condition and results
of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared, and in
the case of financial statements included in any Incorporated
Document will be prepared, in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
period or periods involved; and the supporting schedules included
or incorporated by reference in the Prospectus present, and will
present as of the applicable Representation Date and at all times
during each Marketing Period, fairly and will present fairly the
information required to be stated therein.
(o) Documents Incorporated by Reference. Since the end of
its latest fiscal year, the Company has timely filed all documents
and amendments to previously filed documents required to be filed
by it pursuant to Sections 12, 13, 14 and 15(d) of the Exchange
Act. The documents incorporated by reference into the Prospectus
as of the respective dates of filing with the Commission were, and
each Incorporated Document will be, prepared by the Company in
conformity in all material respects with the requirements of the
Exchange Act and the Rules and Regulations, and such documents have
been timely filed, or in the case of Incorporated Documents will be
timely filed, as required thereby. True copies of each of the
documents incorporated by reference into the Prospectus have been,
and Incorporated Documents will be, promptly delivered by the
Company to the Agents.
(p) Exhibits to Registration Statement. There are no
contracts or other documents that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules
and Regulations or which were required to be filed as exhibits to
any document incorporated by reference in the Prospectus by the
Exchange Act or the Rules and Regulations which have not been filed
as exhibits to the Registration Statement, or incorporated therein
by reference as permitted by the Rules and Regulations, or that are
required to be summarized in the Prospectus that are not so
summarized.
(q) Registration Rights. No person has the right to require
the Company to register any securities for offering and sale under
the Act by reason of filing of the Registration Statement with the
Commission or the issue and sale of the Notes by the Company.
(r) Price Manipulation. The Company has not taken and will
not take, directly or indirectly, any action which is designed to
cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of the Notes to facilitate the sale or
resale of the Notes.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL
(a) Appointment. Subject to the terms and conditions stated
herein, the Company hereby appoints each of the Agents as the
exclusive agents of the Company for the purpose of soliciting or
receiving offers to purchase the Notes from the Company by others.
On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth,
each Agent agrees, as the exclusive agents of the Company, to use
its reasonable efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. Except as
otherwise provided herein, so long as this Agreement shall remain
in effect with respect to any Agent, the Company shall not, without
the consent of each such Agent, solicit or accept offers to
purchase Notes otherwise than through one of the Agents provided,
however, the Company expressly reserves the right to sell Notes
directly to investors. Each Agent may also purchase Notes from the
Company as principal for purposes of resale, as more fully
described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the
right, in its sole discretion, to suspend solicitation of offers to
purchase the Notes commencing at any time for any period of time or
indefinitely. Upon receipt of at least one business day's prior
written notice from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until
such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of the foregoing
sentence, "business day" shall mean any day which is not a Saturday
or Sunday and which is not a day on which (i) banking institutions
are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed
for trading.
Upon receipt of notice from the Company as contemplated
by Section 3(c) hereof, each Agent shall suspend its solicitation
of offers to purchase Notes until such time as the Company shall
have furnished it with an amendment or supplement to the
Registration Statement or the Prospectus, as the case may be,
contemplated by Section 3(c) and shall have advised such Agent that
such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the
sale of any Notes sold by the Company as a result of a solicitation
made by or offer to purchase received by an Agent, the Company
agrees to pay such Agent a commission, in the form of a discount,
in accordance with the schedule set forth in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to
solicit offers to purchase the Notes only in denominations as are
specified in the Prospectus at a purchase price as shall be
specified by the Company. Each Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase
Notes received by it as an Agent. The Company shall have the sole
right to accept offers to purchase the Notes and may reject any
such offer in whole or in part. Each Agent shall have the right,
in its discretion reasonably exercised without advising the
Company, to reject any offer to purchase the Notes received by it,
in whole or in part, and any such rejection shall not be deemed a
breach of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to
this Agreement shall be deemed to have been purchased and paid for,
or sold by the Company, until such Note shall have been delivered
to the purchaser thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent
as principal, for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale), shall
be made in accordance with the terms of this Agreement and a
Purchase Agreement whether oral (and confirmed in writing by such
Agent to the Company, which may be by facsimile transmission) or in
writing, which will provide for the sale of such Notes to, and the
purchase thereof by, such Agent. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes
by such Agent. The commitment of any Agent to purchase Notes from
the Company as principal 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 Purchase Agreement shall specify the principal
amount and terms of the Notes to be purchased by an Agent, the time
and date (each such time and date being referred to herein as a
"Time of Delivery") and place of delivery of and payment for such
Notes and such other information (as applicable) as is set forth in
Exhibit C hereto. The Company agrees that if any Agent purchases
Notes as principal for resale such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be
indicated in the applicable Purchase Agreement or, if no
compensation is indicated therein, a commission in accordance with
Exhibit A hereto. Any Agent may utilize a selling or dealer group
in connection with the resale of such Notes. In addition, any
Agent may offer the Notes they have purchased as principal to other
dealers. Any Agent may sell Notes to any dealer at a discount and,
unless otherwise specified in the applicable Pricing Supplement,
such discount allowed to any dealer will not be in excess of 100%
of the discount to be received by such Agent from the Company.
Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers'
certificates pursuant to Section 5 hereof.
(f) Administrative Procedures. Administrative procedures
respecting the sale of Notes (the "Procedures") are set forth in
Exhibit B hereto and may be amended in writing from time to time by
the Agents and the Company. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided
to be performed by each of them herein and in the Procedures. The
Procedures shall apply to all transactions contemplated hereunder
including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase
Agreement.
(g) Delivery of Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices of
Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois
60603, not later than 10:00 A.M., Chicago time, on the date of this
Agreement or at such later time as may be mutually agreed upon by
the Company and the Agents, which in no event shall be later than
the time at which the Agents commence solicitation of offers to
purchase Notes hereunder (the "Closing Date").
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants and agrees:
(a) Delivery of Signed Registration Statement. To furnish
promptly to the Agents and to counsel to the Agents a signed copy
of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission,
including all documents incorporated therein by reference and
Incorporated Documents and all consents and exhibits filed
therewith.
(b) Delivery of Other Documents. To deliver promptly to the
Agents such number of conformed copies of the Registration
Statement as originally filed and each amendment thereto and such
number of the Prospectus, any amended or supplemented Prospectus,
documents incorporated by reference in any of the foregoing
documents and any Incorporated Documents, as the Agents may
reasonably request.
(c) Revisions to Prospectus - Material Changes. If, during
any Marketing Period, any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading, or if it is necessary at any time to amend
any Prospectus to comply with the Act, to notify the Agents
promptly, in writing, to suspend solicitation of purchases of the
Notes; and if the Company shall decide to amend or supplement the
Registration Statement or any Prospectus, to promptly advise the
Agents by telephone (with confirmation in writing) and to promptly,
in writing, prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance; provided, however,
that if during the period referred to above any Agent shall own any
Notes which it has purchased from the Company as principal with the
intention of reselling them, the Company shall promptly prepare and
timely file with the Commission any amendment or supplement to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be, in the judgment of the Agents, required by
the Act or requested by the Commission and approved by the Agents.
(d) Commission Filings. To timely file with the Commission
during any Marketing Period, all documents (and any amendments to
previously filed documents) required to be filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(e) Copies of Filings with Commission. Prior to filing with
the Commission during any Marketing Period, (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or
supplement to any Prospectus or (iii) any Incorporated Document in
any of the foregoing or any amendment of or supplement to any such
Incorporated Document, to furnish a copy thereof to the Agents and
counsel to the Agents.
(f) Notice to Agents of Certain Events. To comply with all
requirements imposed by the Act necessary for the distribution of
the Notes as contemplated by the provisions hereof and by the
Prospectus and to make the requisite filings with the Commission
pursuant to Rule 430A and to advise the Agents immediately (i) of
such filings or when any post-effective amendment thereto becomes
effective, (ii) of any request by the Commission for an amendment
to the Registration Statement, a supplement to the Prospectus, an
amendment to any documents incorporated by reference in the
Prospectus, any Incorporated Document or any amendment thereto or
for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any document
incorporated by reference in the Prospectus or any Incorporated
Document, or of the initiation or threat of any stop-order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus or any
Incorporated Document, (iv) of 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 threat
of any proceeding for that purpose, and (v) of the happening of any
event prior to the termination of the offering of the Notes that
makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus or that may require the
making of a change in the Registration Statement or the Prospectus
in order to make any material statement therein not misleading.
(g) Exchange Act Filings. Until the termination of the
offering of the Notes, to timely file all documents, and any
amendments to previously filed documents, required to be filed by
it pursuant to Sections 12, 13, 14 or 15(d) of the Exchange Act.
(h) Holdback. During the period beginning from the date of
a Purchase Agreement and continuing to and including the date of
delivery of the Notes with respect thereto, not to announce an
offer for sale, make an offer for sale, sell or otherwise dispose
of any debt securities of the Company which have terms
substantially similar to the terms of the Notes, without the
consent of the Agents.
(i) Price Manipulation. The Company will not take, directly
or indirectly, any action which is designed to cause or result in,
or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(j) Stop Orders. If, during any Marketing Period, the
Commission shall issue a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time.
(k) Earnings Statements. As soon as practicable, but not
later than 18 months, after the date of each acceptance by the
Company of an offer to purchase Notes hereunder, to make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement, (ii) the effective
date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of
such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the
date of such acceptance which will satisfy the provisions of
Section 11(a) of the Act (including, at the option of the Company,
Rule 158 of the Rules and Regulations under the Act).
(l) Copies of Reports, Releases and Financial Statements. So
long as any of the Notes are outstanding, to furnish to the Agents,
not later than the time the Company makes the same available to
others, copies of all public reports or releases and all reports
and financial statements furnished by the Company to any securities
exchange on which the Notes are listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder.
(m) Blue Sky Qualifications. To endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under
the securities laws of such jurisdiction as the Agents may
designate, and to maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; and to
file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above
provided.
(n) Pricing Supplement. To prepare, with respect to any
Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a
form previously approved by the Agents and to file such Pricing
Supplement pursuant to Rule 424 under the Act with the Commission.
SECTION 4. PAYMENT OF EXPENSES
The Company will pay:
(i) the costs incident to the authorization,
issuance, sale and delivery of the Notes and any taxes payable
in that connection,
(ii) the costs incident to the preparation, printing
and filing under the Act of the Registration Statement and any
amendments and exhibits thereto,
(iii) the costs incident to the preparation, printing
and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange
Act,
(iv) the costs of distributing the Registration
Statement, as originally filed, and each amendment and post-
effective amendment thereof (including exhibits), each
Prospectus, any supplement or amendment to any Prospectus and
any documents incorporated by reference in any of the
foregoing documents,
(v) the fees and disbursements of the Trustee, any
paying agent, any calculation agent, any exchange rate agent
and any other agents appointed by the Company, and their
respective counsel,
(vi) the costs and fees in connection with the
listing of the Notes on any securities exchange,
(vii) the costs and fees in connection with any
filings with the National Association of Securities Dealers
Inc.,
(viii) the fees and disbursements of counsel to
the Company and counsel to the Agents,
(ix) the fees paid to rating agencies in connection
with the rating of the Notes,
(x) the fees and expenses of qualifying the Notes
under the securities laws of the several jurisdictions as
provided in Section 3(j) hereof and of preparing and printing
a Blue Sky Memorandum and a memorandum concerning the legality
of the Notes as an investment (including fees and expenses of
counsel for the Agents in connection therewith),
(xi) all advertising expenses in connection with the
offering of the Notes incurred with the consent of the
Company, and
(xii) all other costs and expenses arising out
of the transactions contemplated hereunder and incident to the
performance of the Company's obligations under this Agreement
or otherwise in connection with the activities of the Agents
under this Agreement.
SECTION 5. CONDITIONS OF OBLIGATIONS OF AGENTS
The obligation of the Agents, as the agents of the Company,
under this Agreement to solicit offers to purchase the Notes, the
obligation of any person who has agreed to purchase Notes to make
payment for and take delivery of Notes, and the obligation of the
any Agent to purchase Notes pursuant to any Purchase Agreement, is
subject to the accuracy, on each Representation Date, of the
representations and warranties of the Company contained herein, to
the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) Registration Statement. The Prospectus as amended or
supplemented (including the Pricing Supplement) with respect to
such Notes shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the Rules and Regulations and in
accordance with Section 3(l) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor
any order directed to any document incorporated by reference in any
Prospectus shall have been issued and no stop order proceeding
shall have been initiated or threatened by the Commission and no
challenge shall have been made to the accuracy or adequacy of any
document incorporated by reference in any Prospectus; any request
of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have
been complied with; and the Company shall not have filed with the
Commission any amendment or supplement to the Registration
Statement or any Prospectus (or any document incorporated by
reference therein) without first allowing the Agents and their
counsel reasonable opportunity to comment thereon.
(b) No Suspension of Sale of the Notes. No order suspending
the sale of the Notes in any jurisdiction designated by the Agents
pursuant to Section 3(m) hereof shall have been issued, and no
proceeding for that purpose shall have been initiated or
threatened.
(c) No Material Omissions or Untrue Statements. The Agents
shall have not have discovered and disclosed to the Company that
the Registration Statement or any Prospectus contains an untrue
statement of a fact which, in the opinion of counsel for the
Agents, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate
proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Notes, the Indenture, the
form of the Registration Statement, any amendments thereto, each
Prospectus, any supplements thereto (other than financial
statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all respects to counsel for the Agents and
the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(e) Opinion of Company Counsel. At the Closing Date, the
Agents shall have received the opinion, addressed to the Agents and
dated the Closing Date, of the General Counsel of the Company, in
form and substance satisfactory to the Agents and their counsel, to
the effect that:
(i) Each of the Company, Chicago Bridge & Iron
Company ("Chicago Bridge") and LC Industries, Inc. ("Liquid
Carbonic"), Chicago Bridge and Liquid Carbonic being wholly
owned subsidiaries of the Company, has been duly incorporated
and is validly existing in good standing as a corporation
under the laws of Delaware, Illinois and Delaware,
respectively, and each is duly qualified to do business and in
good standing in each of the other United States jurisdictions
where such qualification is required for the conduct of its
business or ownership of its properties and where the failure
to be so qualified could reasonably be expected to have a
material adverse effect upon the Company and its subsidiaries
taken as a whole;
(ii) The Notes have been duly authorized and, when
issued, authenticated and delivered pursuant to the Indenture
against payment of the agreed upon consideration therefor
pursuant to this Agreement, such Notes will have been duly
executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture,
which is in the form filed as an exhibit to the Registration
Statement, and will be enforceable in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity; the Indenture has been duly authorized and is duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Company,
enforceable in accordance with its terms as modified by
applicable law, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity; and the Indenture conforms and the Notes, when
issued, will conform to the description thereof contained in
the Registration Statement and the Prospectus;
(iii) The Registration Statement and any
amendments thereto and Prospectus and any supplements thereto
comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations
thereunder, and the documents incorporated (or deemed to be
incorporated) by reference in the Prospectus and the
Incorporated Documents (if any) when filed with the Commission
appear on their face to have been appropriately responsive to
the requirements of the Exchange Act and the Rules and
Regulations thereunder, except that no opinion need be
expressed as to the financial statements, schedules and other
financial data contained in any of those documents;
(iv) Such counsel has no reason to believe that the
Registration Statement (except as to the financial statements,
schedules and other financial data contained or incorporated
by reference therein, as to which such counsel need express no
opinion) at the time it became effective or the Prospectus or
any amendments or supplements thereto contain any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to
make the statements made therein, in light of the
circumstances under which they were made, not misleading;
(v) The Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose
have been instituted or are pending or threatened;
(vi) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries has any
litigation or governmental, administrative or other
proceeding, pending or threatened, which are not disclosed in
the Prospectus and which are of a character that ought to be
disclosed in the Prospectus;
(vii) To the best of such counsel's knowledge,
there are no contracts to which the Company or any of its
subsidiaries is a party which are required to be filed as
exhibits to the Registration Statement and are not so filed or
required to be summarized therein and are not so summarized;
(viii) The statements made in the Prospectus
under the caption "Description of the Notes," insofar as they
purport to summarize the provisions of documents or agreements
specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3;
(ix) Neither the Company, Chicago Bridge or Liquid
Carbonic is in violation of its certificate of incorporation
or by-laws, or, to the best of such counsel's knowledge, in
default under any material agreement, indenture or instrument;
and
(x) This Agreement has been duly authorized,
executed and delivered by the Company; the execution, delivery
and performance of this Agreement will not conflict with, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of
its subsidiaries (which creation or imposition would have a
material adverse effect on the Company and its subsidiaries
taken as a whole) pursuant to the terms of, or constitute a
breach or default under, any agreement, indenture or
instrument known to such counsel, or result in a material
violation of the certificate of incorporation or by-laws of
the Company or any of its subsidiaries or, to the best of such
counsel's knowledge, any order, rule or regulation of any
court or governmental agency having jurisdiction over the
Company, any of its subsidiaries or their property; and no
consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement by the
Company, except such as may be required by the Act, the
Exchange Act, the Trust Indenture Act and state securities
laws.
(f) Officers' Certificate. The Company shall have furnished
to the Agents on the Closing Date a certificate, dated the Closing
Date, of its President and its Executive Vice President-Finance and
Chief Financial Officer, certifying that:
(i) There are no legal or governmental
administrative or other proceedings pending or threatened
against the Company or its subsidiaries of a character
required to be disclosed in the Prospectus which are not
disclosed therein;
(ii) The representations and warranties of the
Company contained herein are true and correct as of the
Closing Date; that the Company has complied with all of its
agreements herein contained; and that the conditions set forth
in subparagraphs (a), (b), (d), (e), (g), (h), (i) and (j) of
this Section 5 have been fulfilled;
(iii) Since the date of the latest audited
financial statements of the Company included in the
Prospectus, there have been no material transactions not in
the ordinary course of business entered into by the Company or
its subsidiaries not reflected in the Registration Statement,
as amended, or Prospectus, as supplemented, and since the date
of the latest audited financial statements of the Company
included in the Prospectus, there have been no material
adverse changes in the financial condition of the Company and
its subsidiaries taken as a whole or in their consolidated
financial position or net assets as shown in the Registration
Statement and Prospectus other than as referred to or
contemplated in the Registration Statement and the Prospectus;
and
(iv) They have carefully examined the Registration
Statement, the Prospectus and the documents incorporated
therein and (A) as of the effective date of the Registration
Statement, the Registration Statement, the Prospectus and such
incorporated documents did not include any untrue statement of
a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the effective
date of the Registration Statement, no event has occurred that
should have been set forth in a supplement to or an amendment
of the Prospectus or in an Incorporated Document that has not
been set forth in such a supplement or amendment or in an
Incorporated Document.
(g) Accountant's Letter. The Company shall have furnished to
the Agents on the Closing Date, a letter from Arthur Andersen &
Co., addressed jointly to the Company and the Agents and dated the
Closing Date, of the type described in the American Institute of
Certified Public Accountants' Statement on Auditing Standards
("SAS") No. 72, in form and substance reasonably satisfactory to
the Agents confirming that they are independent accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the
Act and applicable published Rules and Regulations;
(ii) In their opinion, the financial statements and
schedules audited by them and included or incorporated by
reference in the Prospectus contained in the Registration
Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(iii) They have made a review of any unaudited interim
financial information included in the Prospectus in accordance
with standards specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed financial statements
as indicated in their report or reports attached to such
letter;
(iv) On the basis of the review referred to in (ii) above
and a reading of the latest available interim financial
statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) any material modifications should be made to
the unaudited financial statements included or
incorporated by reference in the Prospectus for them to
be in conformity with generally accepted accounting
principles;
(B) the unaudited financial statements, if any,
included in the Prospectus do not comply in form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations;
(C) the unaudited capsule information, if any,
included in the Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements from which it was derived or was not
determined on a basis substantially consistent with that
of the audited financial statements included or
incorporated by reference in the Prospectus;
(D) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the
Closing Date, there was any change in the capital stock,
any increase in short-term indebtedness or long-term debt
of the Company and consolidated subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(E) for the period from the date of the latest
income statement included in the Prospectus to the
closing date of the latest available income statement
read by such accountants there were any decreases, as
compared with the corresponding period of the previous
year, in consolidated net sales, total or per share
income, income before extraordinary items or net income,
or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(v) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(h) Opinion of Agents' Counsel. The Agents shall have
received from Mayer, Brown & Platt, counsel to the Agents, such
opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Notes, the Indenture, the Registration
Statement (including the description contained therein under the
heading "Certain United States Federal Income Tax Consequences"),
the Prospectus and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(i) Additional Conditions. There shall not have occurred:
(i) any change in the capital stock or long-term debt of the
Company or any of its Subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, stockholders' equity, business,
properties, condition (financial or other), results of operations
or prospects of the Company which, in the opinion of the Agents,
materially impairs the investment quality of the Notes; (ii) a
suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market or the establishment of
minimum prices on such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or governmental
authority having jurisdiction; (iii) a general moratorium on
commercial banking activities declared by Federal, Illinois or New
York State authorities; (iv) any downgrading in the rating accorded
the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating); (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other
substantial national calamity or emergency; or (vi) any material
adverse change in the existing financial, political or economic
conditions of the United States, including any effect of
international conditions on the financial markets in the United
States, that in the judgment of the Agents makes it impracticable
or inadvisable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as
principal pursuant to the applicable Purchase Agreement, as the
case may be.
(j) Other Information and Documentation. Prior to the
Closing Date, the Company shall have furnished to the Agents such
further information, certificates and documents as the Agents or
counsel to the Agents may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in the form
and substance satisfactory to counsel for the Agents.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and
Warranties. Each acceptance by it of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations
and warranties of the Company contained in this Agreement and in
the most recent certificate theretofore given to the Agents
pursuant hereto are true and correct at the time of such
acceptance, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the
purchaser or his agent of the Notes relating to such acceptance as
though made at and as of each such time (and such representations
and warranties shall relate to the Registration Statement and the
Prospectus as amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The
Company agrees that during each Marketing Period, each time that
the Registration Statement or any Prospectus shall be amended or
supplemented (other than by a Pricing Supplement providing solely
for the interest rates or maturities of the Notes or the principal
amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers'
certificate under this Section 6(b) as a condition to the purchase
of Notes pursuant to such Purchase Agreement or the Company files
with the Commission any document incorporated by reference into any
Prospectus, the Company shall submit to the Agents a certificate,
(i) as of the date of such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment,
supplement or filing was not filed during a Marketing Period, as of
the first day of the next succeeding Marketing Period, representing
that the statements contained in the certificate referred to in
Section 5(f) hereof which was last furnished to the Agents are true
and correct at the time of such amendment, supplement or filing, as
the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration
Statement and each Prospectus as amended and supplemented to such
time).
(c) Subsequent Delivery of Legal Opinions. The Company
agrees that during each Marketing Period, each time that the
Registration Statement or any Prospectus shall be amended or
supplemented (other than by a Pricing Supplement providing solely
for the interest rates or maturities of the Notes or the principal
amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under
this Section 6(c) as a condition to the purchase of Notes pursuant
to such Purchase Agreement or the Company files with the Commission
any document incorporated by reference into any Prospectus, the
Company shall, (i) concurrently with such amendment, supplement,
Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period,
furnish the Agents and their counsel with the written opinion of
the General Counsel of the Company, addressed to the Agents and
dated the date of delivery of such opinion, in form satisfactory to
the Agents, of the same effect as the opinion referred to in
Section 5(e) hereof, but modified, as necessary, to relate to the
Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such opinion; provided,
however, that in lieu of such opinion, such counsel may furnish the
Agents with a letter to the effect that the Agents may rely on such
prior opinion to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such
prior opinion shall be deemed to relate to the Registration
Statement and each Prospectus as amended or supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company
agrees that during each Marketing Period, each time that the
Registration Statement or any Prospectus shall be amended or
supplemented to include additional financial information, each time
the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the purchase of Notes pursuant to
such Purchase Agreement or the Company files with the Commission
any document incorporated by reference into any Prospectus which
contains additional financial information, the Company shall cause
Arthur Andersen & Co. (or other independent accountants of the
Company acceptable to the Agents) to furnish the Agents, (i)
concurrently with such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment,
supplement, or filing was not filed during a Marketing Period, on
the first day of the next succeeding Marketing Period, a letter,
addressed jointly to the Company and the Agents and dated the date
of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, of the same effect as the letter
referred to in Section 5(g) hereof but modified to relate to the
Registration Statement and each Prospectus, as amended and
supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or
any Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement
unless there is contained therein any other accounting, financial
or statistical information that, in the reasonable judgment of the
Agents, should be covered by such letter, in which event such
letter shall also cover such other information.
(e) Opinion on Settlement Date. On any settlement date for
the sale of Notes, the Company shall, if requested by the Agent
that solicited or received the offer to purchase any Notes being
delivered on such settlement date, furnish such Agent with a
written opinion of the General Counsel of the Company, dated such
settlement date, in form satisfactory to such Agent, to the effect
set forth in Section 5(e) hereof, but modified, as necessary, to
relate to the Prospectus relating to the Notes to be delivered on
such settlement date; provided, however, that in lieu of such
opinion, such counsel may furnish the Agents with a letter to the
effect that the Agents may rely on such prior opinion to the same
extent as though it was dated such settlement date (except that
statements in such prior opinion shall be deemed to relate to the
Registration Statement and such Prospectus as amended or
supplemented to the time of delivery of such letter authorizing
reliance).
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of Agent. The Company shall indemnify
and hold harmless each Agent and each person, if any, who controls
any Agent within the meaning of the Act (a "controlling person")
from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which such Agent or
controlling person may become subject, under the Act, the Exchange
Act or other federal or state statutory law or regulations, at
common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus, or arises out of,
or is based upon, the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each
Agent and controlling person for any legal and other expenses
reasonably incurred by such Agent or controlling person in
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action; provided, however, that
the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Form T-1 or made in the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Agents specifically for inclusion therein; provided further, that
as to any prospectus included in the Registration Statement before
it became effective under the Act (a "Preliminary Prospectus") or
any preliminary prospectus supplement, this indemnity agreement
shall not inure to the benefit of any Agent on account of any loss,
claim, damage, liability or action arising from the sale of Notes
to any person by that Agent if that Agent failed to send or give a
copy of the Prospectus to that person within the time required by
the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the
Company with Section 3(b). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to
any Agent or controlling person.
(b) Indemnification of the Company. Each Agent shall
indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and any
person who controls the Company within the meaning of the Act from
and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under
the Act, the Exchange Act or federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or
arises out of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished
to the Company by such Agent specifically for inclusion therein,
and shall reimburse the Company or any such director, officer or
controlling person for any legal and other expenses reasonably
incurred by such indemnified party in investigating or defending or
preparing to defend against any such loss, claim, damage, liability
or action. The foregoing indemnity agreement is in addition to any
liability which any Agent may otherwise have to the Company or any
of its directors, officers or controlling persons.
(c) Notice. Promptly after receipt by an indemnified party
under this Section of notice of any claim or the commencement of
any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the claim or
the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise
than under this Section. If any such claim or action shall be
brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to
assume the defense thereon with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Agents shall have the
right to employ counsel to represent the Agents who may be subject
to liability arising out of any claim in respect of which indemnity
may be sought by the Agents against the Company under this Section
if, in the reasonable judgment of the Agents, there may be legal
defenses available to the Agents which are different from or
additional to those available to the Company or that there exists
some conflict of interest between the interest of the Agents and
the Company with respect to such claim that makes separate
representation desirable in the reasonable judgment of the Agents,
and in the event of the foregoing the reasonable fees and expenses
of such separate counsel shall be paid by the Company. It is
understood, however, in connection with the Company's undertaking
in the preceding proviso, that the Company shall not be liable for
the expenses of more than one separate counsel representing the
Agents or their respective controlling persons who are parties to
the claim referred to in such proviso. 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,
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 60 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) Contribution. If the indemnification provided for in
this Section 7 shall for any reason be unavailable to an
indemnified party under Section 7(a) or 7(b) hereof in respect of
any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company on the one hand and
any Agent on the other from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and any Agent on
the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and any Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Notes (before deducting
expenses) received by the Company bears to the total commissions
received by such Agent with respect to such offering. The relative
fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by the Company or any Agent, the intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Agents agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), 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 the Section 7(d), no
Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes sold through
such Agent and distributed to the public were offered to the public
exceeds the amount of any damages which such Agent has otherwise
paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
SECTION 8. STATUS OF EACH AGENT
In soliciting offers to purchase the Notes from the Company
pursuant to this Agreement (other than in respect of any Purchase
Agreement), each Agent is acting individually and not jointly and
is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by such Agent and
accepted by the Company but such Agent shall have no liability to
the Company in the event any such purchase is not consummated for
any reason. If the Company shall default in its obligations to
deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agents harmless against any loss, claim
or damage arising from or as a result of such default by the
Company and (ii), in particular, pay to the Agents any commission
to which they would be entitled in connection with such sale.
SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO
SURVIVE DELIVERY
The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Agents
contained in this Agreement, or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain operative
and in full force and effect, regardless of any investigation made
by or on behalf of any Agent or any person controlling such Agent
or by or on behalf of the Company, and shall survive each delivery
of any payment for any of the Notes.
SECTION 10. TERMINATION
This Agreement may be terminated for any reason with respect
to any party hereto, at any time, by any party hereto upon the
giving of one day's written notice of such termination to the other
parties thereto provided, however, if such terminating party is an
Agent, such termination shall be effective only with respect to
such terminating party. If, at the time of a termination, an offer
to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect until such
Notes are delivered. The provisions of Sections 2(c), 3(d), 3(h),
3(i), 4, 7, 8 and 9 hereof shall survive any termination of this
Agreement.
SECTION 11. SALES OF NOTES DENOMINATED IN A FOREIGN
CURRENCY AND INDEXED NOTES
If at any time the Company and any of the Agents shall
determine to issue and sell Notes denominated in a currency or
currency unit other than U.S. Dollars, which other currency may
include a composite currency, or with respect to which an index is
used to determine the amounts of payments of principal and any
premium or interest, the Company and such Agent shall execute and
deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as
Exhibit D. Such amendment shall establish, as appropriate
additions and modifications that shall apply to the sales, whether
offered on an agency or principal basis, of the Notes covered
thereby. The Agents are authorized to solicit offers to purchase
Notes with respect to which an index is used to determine the
amounts of payments of principal and any premium and interest, and
the Company shall agree to any sales of such Notes (whether offered
on any agency or principal basis), only in a minimum aggregate
amount of $2,500,000.
SECTION 12. NOTICES
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Agents shall be directed to
it as follows: Lehman Brothers, 3 World Financial Center, 12th
Floor, New York, New York 10285-1200, Attention: Medium Term Note
Department, Roger A. Blissett, Telephone No.: (212) 298-2040;
Telecopy No.: (212) 528-1718; Merrill Lynch & Co., World Financial
Center, North Tower, 10th Floor, New York, New York 10281-1310,
Attention: MTN Product Management, Telephone No.: (212) 449-7474;
Telecopy No.: (212) 449-2234; Salomon Brothers Inc, Seven World
Trade Center, 31st Floor, New York, New York 10048, Attention:
Medium Term Note Group, Telephone No.: (212) 783-5897; Telecopy
No.: (212) 783-2274; notices to the Company shall be directed to it
as follows: 800 Jorie Boulevard, Oak Brook, Illinois 60521-2268,
Attention: Vice President and Treasurer.
SECTION 13. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon each Agent, the Company,
and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be
deemed to be for the benefit of the person or persons, if any, who
control any Agent within the meaning of Section 15 of the Act, and
(b) the indemnity agreement of the Agents contained in Section 7
hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration
Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person,
other than the person referred to in this Section, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, except for the
laws of such state with respect to the conflicts of law doctrine.
This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
SECTION 15. PARAGRAPH HEADINGS
The paragraph headings used in this Distribution Agreement are
for convenience of reference only, and are not to affect the
construction hereof or be taken into consideration in the
interpretation hereof.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that
purpose below.
Very truly yours,
CBI INDUSTRIES, INC.
By: /S/ G.L. Schueppert
Title: Executive Vice President-Finance
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
By: /S/ Robert S. Karlblom
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /S/ Thomas R. Williams
Title: Director
SALOMON BROTHERS INC
By: /S/ Anne Clarke Wolff
Title: Vice President
EXHIBIT A
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTES, SERIES A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentages of the aggregate U.S. dollar equivalent of
the principal amount of Notes:
TERM COMMISSION RATE
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .675%
20 years to 30 years .750%
More than 30 years */
*/ In the case of maturities in excess of 30 years, commissions
and discount will be agreed upon by the Company and the relevant
Agent at the time of sale.
EXHIBIT B
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series A, due nine months or more from date
of issue (the "Notes") are to be offered on a continuing basis by
CBI Industries, Inc. (the "Company"). Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Brothers Inc, as agents (each an "Agent"
and collectively, the "Agents"), which shall include Lehman Special
Securities Inc., an affiliate of Lehman Brothers Inc., have each
agreed to use their reasonable best efforts to solicit offers to
purchase the Notes. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated
____________________________ ___, 1994 (as it may be supplemented
or amended from time to time, the "Distribution Agreement") to
which these administrative procedures are attached as an exhibit.
The Notes will be issued under the Company's Indenture, dated as of
March 1, 1994, between the Company and Chemical Bank, as trustee
(the "Trustee"), as heretofore supplemented. The Notes will rank
equally with all other unsecured and unsubordinated indebtedness of
the Company and will have been registered with the Securities and
Exchange Commission (the "Commission"). Terms defined in the
Prospectus relating to the Notes (the "Prospectus", which term
shall include any Prospectus Supplement relating to the Notes and
any Pricing Supplement relating to an applicable Note) and in the
Distribution Agreement shall have the same meaning when used in
this exhibit.
The Notes will be issued either (a) in certificated form
(each, a "Certificated Note") delivered to the purchaser thereof or
a person designated by such purchaser or (b) in book-entry form
(each, a "Book-Entry Note") represented by one or more fully
registered global Notes (each, a "Global Security") delivered to
the Trustee, as agent for the Depositary Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC. Owners of
beneficial interests in Book-Entry Notes will be entitled to
physical delivery of Certificated Notes equal in principal amount
to their respective beneficial interests only upon certain limited
circumstances described in the Prospectus.
General procedures relating to the issuance of all Notes are
set forth in Part I hereof. Certificated Notes will be issued in
accordance with the procedures set forth in Part II, as
supplemented, in the case of Certificated Notes denominated other
than in U.S. dollars ("Multi-Currency Notes"), by Part III. Book-
Entry Notes will be issued in accordance with the procedures set
forth in Part IV.
Administrative responsibilities, document control and record-
keeping functions to be performed by the Company will be performed
by its Vice President and Treasurer. Administrative procedures for
the offering are explained below.
PART I: PROCEDURES OF GENERAL APPLICABILITY
PRICE TO PUBLIC
Each Note will be issued at 100% of principal amount, unless
otherwise determined by the Company.
DATE OF ISSUANCE
Each Note will be dated and issued as of the date of its
authentication by the Trustee.
MATURITIES
Each Note will mature on a day at least nine months or more
from the date of issuance selected by the purchaser and agreed upon
by the Company. Each Floating Rate Note (as defined below) will
mature on an Interest Payment Date (as defined below).
REGISTRATION
Notes will be issued only in fully registered form as either
a Book-Entry Note or a Certificated Note.
INTEREST PAYMENTS
Each Note bearing interest at a fixed rate (a "Fixed Rate
Note") will bear interest from its issue date at the annual rate
stated on the face thereof, payable in the case of Fixed Rate Notes
other than Amortizing Notes (as defined below), unless otherwise
specified in an applicable Pricing Supplement, on June 15 and
December 15 of each year (each an "Interest Payment Date" with
respect to such Fixed Rate Note) and at Stated Maturity or upon
redemption, if applicable.
Special provisions are set forth in the Prospectus relating to
Notes bearing interest at a rate or rates determined by reference
to an interest rate formula ("Floating Rate Notes") at a rate
determined pursuant to the formula stated on the face thereof,
payable in arrears on such dates as are specified therein (each an
"Interest Payment Date" with respect to such Floating Rate Note).
Unless otherwise specified in an applicable Pricing
Supplement, interest on Fixed Rate Notes will be calculated and
paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified in an applicable Pricing Supplement,
interest will be payable to the person in whose name such Note is
registered at the close of business on May 31 or November 30
(whether or not a Business Day) with respect to Fixed Rate Notes
other than Amortizing Notes or the fifteenth day (whether or not a
Business Day) next preceding an Interest Payment Date with respect
to Floating Rate Notes (the "Record Dates") next preceding the
respective Interest Payment Date; provided, however, that interest
payable at Stated Maturity will be payable to the person to whom
principal shall be payable. Payments of principal and interest on
Notes for which payments of principal and interest are made in
equal installments over the life of the security ("Amortizing
Notes"), will be made either quarterly on each March 15, June 15,
September 15 and December 15 or semiannually on each June 15 and
December 15 as set forth in the applicable Pricing Supplement, and
at maturity or upon earlier redemption or repayment. Such payments
will be payable to the person in whose name such Amortizing Note is
registered at the close of business on the fifteenth day (whether
or not a Business Day) next preceding the respective Interest
Payment Date. Payments with respect to Amortizing Notes will be
applied first to interest due and payable thereon and then to the
reduction of the unpaid principal amount thereof. A table setting
forth repayment information in respect of each Amortizing Note will
be provided to the original purchaser and will be available, upon
request, to subsequent Holders. Any payment of principal and
interest on any such Note required to be paid on an Interest
Payment Date or at Stated Maturity or upon redemption, if
applicable, which is not a Business Day shall be postponed to the
next day which is a Business Day. The first payment of interest on
any Note originally issued between a Record Date and an Interest
Payment Date will be made on the Interest Payment Date following
the next succeeding Record Date. All interest payments (and, in
the case of Amortizing Notes, principal payments) excluding
interest payments and, in the case of Amortizing Notes, principal
payments made at Stated Maturity or upon redemption, if applicable,
will be made by check mailed to the person entitled thereto as
provided above, or, at the option of the Company, by wire transfer
to an account maintained by such person with a bank located in the
United States. Notwithstanding the foregoing, the holder of $10
million or more in aggregate principal amount of Notes of like
tenor and terms with the same Interest Payment Date may request
payment by wire transfers.
On the fifth Business Day immediately preceding each Interest
Payment Date, the Trustee will furnish the Company with the total
amount of the interest payments and, in the case of Amortizing
Notes, principal payments, to be made on such Interest Payment
Date. The Trustee (or any duly selected paying agent) will provide
monthly to the Company's Treasury Department a list of the
principal and interest to be paid on Notes maturing in the next
succeeding month. The Company will provide to the Trustee not
later than the payment date sufficient moneys to pay in full all
principal and interest payments due on such payment date. The
Trustee will assume responsibility for withholding taxes on
interest paid as required by law.
ACCEPTANCE AND REJECTION OF OFFERS
The Company shall have the sole right to accept offers to
purchase Notes and may reject any such offer to purchase Notes in
whole or in part. Each Agent shall promptly communicate to the
Company, orally or in writing, each reasonable offer to purchase
Notes from the Company received by it other than those rejected by
such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any
offers in whole or in part.
SETTLEMENT
The receipt of immediately available funds in U.S. dollars by
the Company in payment for a Note (less the applicable commission)
and the authentication and issuance of such Note shall, with
respect to such Note, constitute "Settlement." All offers accepted
by the Company will be settled from one to five Business Days from
the date of acceptance by the Company pursuant to the timetable for
Settlement set forth below unless the Company and the purchaser
agree to Settlement on a later date; provided, however, that the
Company will so notify the Trustee of any such later date on or
before the Business Day immediately prior to the Settlement date.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
The Company and the Agents will discuss from time to time the
rates to be borne by the Notes that may be sold as a result of the
solicitation of offers by the Agents. Once any Agent has recorded
any indication of interest in Notes upon certain terms, and
communicated with the Company, if the Company accepts an offer to
purchase Notes upon such terms, it will prepare a Pricing
Supplement in the form previously approved by the Agents,
reflecting the terms of such Notes and, after approval from the
Presenting Agent, will arrange to have copies of such Pricing
Supplement (together with the Prospectus, if amended or
supplemented) filed with the Commission and will supply an
appropriate number of copies of the Prospectus, as then amended or
supplemented, together with such Pricing Supplement, to the
Presenting Agent (as defined below). See "Delivery of Prospectus."
No settlements with respect to Notes upon such terms may occur
prior to such filing and the Presenting Agent will not, prior to
such filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such filing, sales, mailing
of confirmations and settlements may occur with respect to Notes
upon such terms, subject to the provisions of "Delivery of
Prospectus" below.
If the Company decides to post rates and a decision has been
reached to change interest rates, the Company will promptly notify
each Agent. Each Agent will forthwith suspend solicitation of
purchases. At that time, the Agents will recommend and the Company
will establish rates to be so "posted." Following establishment of
posted rates and prior to the filing described in the following
sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded
any indication of interest in Notes at the posted rates and
communicated with the Company, if the Company accepts an offer at
the posted rate, it will prepare a Pricing Supplement reflecting
such posted rates and, after approval from the Presenting Agent,
will arrange to have copies of such Pricing Supplement (together
with the Prospectus if amended or supplemented) filed with the
Commission and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Presenting
Agent. See "Delivery of Prospectus."
No settlements at the posted rates may occur prior to such filing
and the Presenting Agent will not, prior to such filing, mail
confirmations to customers who have offered to purchase Notes at
the posted rates. After such filing, sales, mailing of
confirmations and settlements may resume, subject to the provisions
of "Delivery of Prospectus" below.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
In the event that at the time the Agents, at the direction of
the Company, suspend solicitation of offers to purchase from the
Company there shall be any orders outstanding which have not been
settled, the Company will promptly advise the Agents and the
Trustee whether such orders may be settled and whether copies of
the Prospectus as theretofore amended and/or supplemented as in
effect at the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements which may
be made in the event that the Company determines that such orders
may not be settled or that copies of such Prospectus may not be so
delivered.
DELIVERY OF PROSPECTUS
A copy of the Prospectus as most recently amended or
supplemented on the date of delivery thereof, together with the
applicable Pricing Supplement, must be delivered to a purchaser
prior to or together with the earlier of the delivery by the Agents
of (i) the written confirmation of a sale sent to a purchaser or
his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the Presenting Agent receives copies of
the Prospectus and each amendment or supplement thereto (including
the applicable Pricing Supplement) in such quantities and within
such time limits as will enable the Presenting Agent to deliver
such confirmation or Note to a purchaser as contemplated by these
procedures and in compliance with the preceding sentence. Copies
of Pricing Supplements should be delivered by telecopy to Lehman
Brothers, Prospectus Delivery Department, Attn: Andrea Springer,
Telecopy: (212) 464-6960 and hard copies via overnight delivery to
Lehman Brothers Inc., Medium-Term Note Department, Attn: Roger A.
Blissett; Merrill Lynch & Co., World Financial Center, North Tower,
10th Floor, New York, New York 10281-1310, Attention: MTN Product
Management, Telephone No.: (212) 449-7474; Telecopy No.: (212) 449-
2234; Salomon Brothers Inc, Seven World Trade Center, 31st Floor,
New York, New York 10048, Attention: Medium Term Note Group,
Telephone No.: (212) 783-5897; Telecopy No.: (212) 783-2274. If,
since the date of acceptance of a purchaser's offer, the Prospectus
shall have been supplemented solely to reflect any sale of Notes on
terms different from those agreed to between the Company and such
purchaser or a change in posted rates not applicable to such
purchaser, such purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall receive the
Prospectus as supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most recently amended
or supplemented on the date of delivery of the Prospectus. The
Company will make all such deliveries with respect to all Notes
sold directly by the Company.
REDEMPTION AND REPAYMENT
Unless one or more Redemption Dates are specified in the
applicable Pricing Supplement, the Notes will not be redeemable
prior to their Stated Maturity. If one or more Redemption Dates
are so specified with respect to any Note, the applicable Pricing
Supplement will also specify one or more redemption prices
(expressed as a percentage of the principal amount of such Note)
("Redemption Prices") and the redemption period or periods
("Redemption Periods") during which such Redemption Prices shall
apply. Unless otherwise specified in the Pricing Supplement, any
such Note shall be redeemable at the option of the Company at the
specified Redemption Price applicable to the Redemption Period
during which such Note is to be redeemed, together with interest
accrued to the Redemption Date. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be subject to any
sinking fund. The Company may redeem any of the Notes that are
redeemable and remain outstanding either in whole or from time to
time in part, upon not less than 30 nor more than 60 days' notice.
In the event of a redemption in part of any Note, a new Note for
the amount of the unredeemed portion shall be issued in the name of
the Holder upon cancellation of the redeemed Note.
The Pricing Supplement relating to each Note will indicate
either that such Note cannot be repaid prior to Stated Maturity or
that such Note will be repayable at the option of the holder on a
date or dates specified prior to Stated Maturity at a price or
prices set forth in the applicable Pricing Supplement, together
with accrued interest to the date of repayment.
In order for a Note that is subject to repayment at the option
of the Holder to be repaid, the Paying Agent must receive at least
30 days but not more than 45 days prior to the repayment date (a)
appropriate wire instructions and (b) either (i) the Note with the
form entitled "Option to Elect Repayment" attached to the Note duly
completed or (ii) a telegram, telex, facsimile transmission or
letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name
of the Holder of the Note, the principal amount of the Note, the
portion of the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of the
Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be repaid with
the form entitled "Option to Elect Repayment" attached to the Note
duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex,
facsimile transmission or letter and such Note and form duly
completed must be received by the Paying Agent by such fifth
Business Day. Exercise of the repayment option by the Holder of a
Note shall be irrevocable, except as otherwise described under
"Interest Rate Reset" and "Extension of Maturity" in the Prospectus
Supplement. The repayment option may be exercised by the Holder of
a Note for less than the entire principal amount of the Note
provided that the principal amount of the Note remaining
outstanding after repayment is an authorized denomination. No
transfer or exchange of any Note (or, in the event that any Note is
to be repaid in part, the portion of the Note to be repaid) will be
permitted after exercise of a repayment option. All questions as
to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the
Company, whose determination will be final, binding and
nonappealable.
If a Note is represented by a Global Security, the
Depositary's nominee will be the Holder of such Note and therefore
will be the only entity that can exercise a right to repayment. In
order to ensure that the Depositary's nominee will timely exercise
a right to repayment with respect to a particular Note, the
beneficial owner of such Note must instruct the broker or other
direct or indirect participant through which it holds an interest
in such Note to notify the Depositary of its desire to exercise a
right to repayment. Different firms have different cut-off times
for accepting instructions from their customers and, accordingly,
each beneficial owner should consult the broker or other direct or
indirect participant through which it holds an interest in a Note
in order to ascertain the cut-off time by which such an instruction
must be given in order for timely notice to be delivered to the
Depositary.
Unless otherwise specified in the applicable Pricing
Supplement, if a Note is an Original Issue Discount Note, the
amount payable on such Note in the event of redemption or repayment
prior to its Stated Maturity shall be the Amortized Face Amount of
such Note, as specified in the applicable Pricing Supplement, as of
the Redemption Date or the date of repayment, as the case may be.
AUTHENTICITY OF SIGNATURES
The Company will cause the Trustee to furnish the Agents from
time to time with the specimen signatures of each of the Trustee's
officers, employees and agents who have been authorized by the
Trustee to authenticate Notes, but the Agents will have no
obligation or liability to the Company or the Trustee in respect of
the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Note.
ADVERTISING COSTS
The Company will determine with the Agents the amount and
nature of advertising that may be appropriate in offering the
Notes. Advertising expenses incurred with the consent of the
Company will be paid by the Company.
BUSINESS DAY
"Business Day" shall mean any Monday, Tuesday, Wednesday,
Thursday or Friday that in the City of New York is not a day on
which banking institutions are authorized or required by law or
regulation to close, and with respect to Notes as to which LIBOR is
an applicable Base Rate, is also a London Business Day. "London
Business Day" means any day (a) on which dealings in deposits in
the Specified Currency are transacted in the London interbank
market, (b) if the Indexed Currency is other than the ECU, on which
dealings in deposits in such Indexed Currency are transacted in the
London interbank market or (c) if the Indexed Currency is the ECU,
that is not designated as an ECU Non-Settlement Day by the ECU
Banking Association in Paris or otherwise generally regarded in the
ECU interbank market as a day on which payments on ECUs shall not
be made. "Market Day" shall mean, with respect to any Note other
than any LIBOR Note, any Business Day in the City of New York and,
with respect to any LIBOR Note, any Business Day in the City of New
York which is also a London Business Day.
PART II: PROCEDURES FOR CERTIFICATED NOTES
CURRENCY
Certificated Notes will be denominated in U.S. dollars or in
one or more foreign currencies or foreign currency units, as
specified in the applicable Pricing Supplement. For special
procedures relating to Multi-Currency Notes, see Part III hereof.
REGISTRATION
Certificated Notes may be presented for registration of
transfer or exchange at the Trustee's New York office.
DENOMINATIONS
Except as provided in the applicable Pricing Supplement,
Certificated Notes will be issued and payable in U.S. dollars in
the denomination of $1,000 and any larger denomination which is an
integral multiple of $1,000.
MATURITY
Upon presentation of each Certificated Note at Maturity the
Trustee (or any duly appointed Paying Agent) will pay the principal
amount thereof, together with accrued interest due at maturity.
Such payment shall be made in immediately available funds in U.S.
dollars, provided that the Certificated Note is presented to the
Trustee (or any such Paying Agent) in time for the Trustee (or such
Paying Agent) to make payments in such funds in accordance with its
normal procedures. The Company will provide the Trustee (and any
such Paying Agent) with funds available for immediate use for such
purpose. Certificated Notes presented at Maturity will be
cancelled by the Trustee as provided in the Indenture.
SETTLEMENT PROCEDURES
In the event of a purchase of Certificated Notes by an Agent,
as principal, appropriate Settlement details will be as set forth
below unless such details are set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company
pursuant to the Distribution Agreement.
In the event of the sale of a Certified Note that is a Multi-
Currency Note or an Indexed Note, whether the sale is through an
Agent or to an Agent, as principal, additional or different
Settlement details may be set forth in an amendment to these
administrative procedures to be entered into between such Agent and
the Company.
Other than as contemplated above, Settlement procedures with
regard to each Certificated Note sold through each Agent shall be
as follows:
A. Such Agent (the "Presenting Agent") will advise the
Company by telephone, telex or facsimile, of the following
Settlement information:
1. Exact name in which the Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and address
for payment of principal and interest, if any.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
5. Settlement date.
6. Stated Maturity and, if the Company has the option
to extend the Stated Maturity, the Extension
Periods and the Final Maturity Date.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. If such Note is a Fixed Rate Note, whether such
Note is an Amortizing Note.
10. Interest rate (including, if appropriate, such
interest rate information applicable to any
Extension Period):
(a) Fixed Rate Certificated Notes:
(i) interest rate
(ii) interest payment dates, if
other than as specified above
(iii) date or dates, if any, on which
the interest rate may be reset
and the basis or formula, if
any, for such resetting
(iv) overdue rate, if any
(b) Floating Rate Certificated Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if
any
(iv) date or dates, if any, on which
the spread or spread multiplier
may be reset and the basis or
formula, if any, for such
resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest
rates, if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any.
11. The date on or after which the Certificated Notes
are redeemable at the option of the Company or are
to be repaid at the option of the Holder, and
additional redemption or repurchase provisions, if
any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the
form of a discount from the proceeds remitted to
the Company upon Settlement).
14. That the Note will be a Certificated Note.
B. The Company will confirm the above Settlement information
to the Trustee by telephone, telex or facsimile, and the Trustee
will assign a Note number to the transaction. If the Company
rejects an offer, the Company will promptly notify the Presenting
Agent and the Trustee by telephone.
C. The Trustee will complete the first page of the
preprinted 4-ply Certificated Note packet, the form of which was
previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Certificated Note (with the
attached white confirmation) and the yellow and blue stubs to the
Presenting Agent. The Presenting Agent will acknowledge receipt of
the Certificated Note by completing the yellow stub and returning
it to the Trustee.
E. The Presenting Agent will cause to be wire transferred to
a bank account designated by the Company immediately available
funds in U.S. dollars in the amount of the principal amount of the
Certificated Note, less the applicable commission or discount, if
any.
F. The Presenting Agent will deliver the Certificated Note
(with the attached white confirmation) to the purchaser against
payment in immediately available funds in the amount of the
principal amount of the Certificated Note. The Presenting Agent
will deliver to the purchaser a copy of the most recent Prospectus
applicable to the Certificated Note with or prior to any written
offer of Certificated Notes, delivery of the Certificated Note and
the confirmation and payment by the purchaser for the Certificated
Note.
G. The Presenting Agent will obtain the acknowledgment of
receipt for the Certificated Note and Prospectus by the purchaser
through the purchaser's completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's
Treasurer.
SETTLEMENT PROCEDURES TIMETABLE
For offers to purchase Certificated Notes accepted by the
Company, Settlement procedures "A" through "H" set forth above
shall be completed on or before the respective times set forth
below:
SETTLEMENT
PROCEDURE TIME (NEW YORK)
A 5 PM on the Trade Date
B 3 PM on the Business Day prior
to Settlement Date
C-D 12 Noon on the Settlement Date
E 2:15 PM on the Settlement Date
F-G 3 PM on the Settlement Date
H 5 PM on Business Day after the
Settlement Date
FAILS
In the event that a purchaser of a Certificated Note shall
either fail to accept delivery of or make payment for such
Certificated Note on the date fixed by the Company for Settlement,
the Presenting Agent will immediately notify the Trustee and the
Company's Treasurer by telephone, confirmed in writing, of such
failure and return the Certificated Note to the Trustee. Upon the
Trustee's receipt of the Certificated Note from the Presenting
Agent, the Company will promptly return to the Presenting Agent an
amount of immediately available funds in U.S. dollars equal to any
amount previously transferred to the Company in respect of the
Certificated Note pursuant to advances made by the Agent. Such
returns will be made on the Settlement Date, if possible, and in
any event not later than 12 noon (New York City time) on the
Business Day following the Settlement Date. The Company will
reimburse the Presenting Agent on an equitable basis for its loss
of the use of the funds during the period when the funds were
credited to the account of the Company. Upon receipt of the
Certificated Note in respect of which the default occurred, the
Trustee will mark the Certificated Note "cancelled," make
appropriate entries in its records and deliver the Certificated
Note to the Company with an appropriate debit advice. The
Presenting Agent will not be entitled to any commission with
respect to any Certificated Note which the purchaser does not
accept or make payment for.
III: SPECIAL ADMINISTRATIVE PROCEDURES FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-
Currency Notes in addition to, and to the extent inconsistent
therewith in replacement of, the procedures and terms set forth
above.
DENOMINATIONS
The authorized denominations of any Multi-Currency Note will
be the amount of the Specified Currency for such Multi-Currency
Note equivalent at the noon buying rate in the City of New York for
cable transfers for such Specified Currency (the "Market Exchange
Rate") as certified for customs purposes by the Federal Reserve
Bank of New York on the first Business Day in the City of New York
and the country issuing such currency (or, in the case of ECUs,
Brussels) next preceding the date on which the Company accepts the
offer to purchase such Multi-Currency Note, to U.S. $1,000 (rounded
down to an integral multiple of 1,000 units of such Specified
Currency) and any greater amount that is an integral multiple of
1,000 units of such Specified Currency.
CURRENCIES
Unless otherwise specified in the applicable Pricing
Supplement, payments of principal of (and premium, if any) and
interest on all Multi-Currency Notes will be made in the applicable
Specified Currency; provided, however, that payments of principal
of (and premium, if any) and interest on Multi-Currency Notes
denominated in other than U.S. dollars will nevertheless be made in
U.S. dollars (i) at the option of the Holders thereof under the
procedures described below and (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances
beyond the control of the Company as described below.
PAYMENT OF PRINCIPAL AND INTEREST
If so specified in the applicable Pricing Supplement, except
as provided in the next paragraph, payments of interest and
principal (and premium, if any) with respect to any Multi-Currency
Note will be made in U.S. dollars if the Holder of such Note on the
relevant Regular Record Date or at Maturity, as the case may be,
has transmitted a written request for such payment in U.S. dollars
to the Trustee at its Corporate Trust Office in The City of New
York on or prior to such Regular Record Date or the date 15 days
prior to Maturity, as the case may be. Such request may be in
writing (mailed or hand delivered) or by cable, telex or other form
of facsimile transmission. Any such request made with respect to
any Multi-Currency Note by a Holder will remain in effect with
respect to any further payments of interest and principal (and
premium, if any) with respect to such Multi-Currency Note payable
to such Holder, unless such request is revoked on or prior to the
relevant Regular Record Date or the date 15 days prior to Maturity,
as the case may be. Holders of Multi-Currency Notes whose Notes
are registered in the name of a broker or nominee should contact
such broker or nominee to determine whether and how an election to
receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a Multi-
Currency Note who elects to receive payments in U.S. dollars will
be based on the highest bid quotation in The City of New York
received by the Currency Determination Agent (as defined below) as
of noon New York City time on the third Business Day next preceding
the applicable payment date from three recognized foreign exchange
dealers (one of which may be the Currency Determination Agent) for
the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all Holders of Multi-
Currency Notes electing to receive U.S. dollar payments and at
which the applicable dealer commits to execute a contract. If
three such bid quotations are not available on the third Business
Day preceding the date of payment of principal (and premium, if
any) or interest with respect to any such Multi-Currency Note, such
payment will be made in the Specified Currency. All currency
exchange costs associated with any payment in U.S. dollars on any
such Multi-Currency Note will be borne by the Holder thereof by
deductions from such payment. Unless otherwise provided in the
applicable Pricing Supplement, the Company will be the currency
determination agent (the "Currency Determination Agent") with
respect to the Multi-Currency Notes.
PAYMENT CURRENCY
If the principal of (and premium, if any) or interest on any
Multi-Currency Note is payable in any currency other than U.S.
dollars and such Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Multi-Currency Notes by making such
payment in U.S. dollars on the basis of the Market Exchange Rate on
the last date such Specified Currency was available (the
"Conversion Date"). Any payment made under such circumstances in
U.S. dollars where the required payment is in other than U.S.
dollars will not constitute an Event of Default under the
Indenture.
If payment in respect of a Note is required to be made in any
currency unit (e.g., ECU) and such currency unit is unavailable due
to the imposition of exchange controls or other circumstances
beyond the Company's control, then all payments in respect of such
Multi-Currency Note shall be made in U.S. dollars until such
currency unit is again available. The amount of each payment in
U.S. dollars shall be computed on the basis of the equivalent of
the currency unit in U.S. dollars, which shall be determined by the
Company or its agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of
the currency unit as of the Conversion Date for such currency unit.
The equivalent of the currency unit in U.S. dollars shall be
calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the
Component Currencies shall be determined by the Company or such
agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day
prior to the date on which the relevant payment is due and for each
such Component Currency that is unavailable, if any, as of the
Conversion Date for such Component Currency.
If the official unit of any Component Currency is altered by
way of combination or subdivision, the number of units of that
currency as a Component Currency shall be divided or multiplied in
the same proportion, if two or more Component Currencies are
consolidated into a single currency, the amounts of those
currencies as Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be
replaced by the amounts of such two or more currencies, the sum of
which shall be equal to the amount of the original Component
Currency.
OUTSTANDING MULTI-CURRENCY NOTES
For purposes of calculating the principal amount of any Multi-
Currency Note for any purpose under the Indenture, the principal
amount of such Multi-Currency Note at any time Outstanding shall be
deemed to be the U.S. dollar equivalent at the Market Exchange
Rate, determined as of the date of the original issuance of such
Multi-Currency Note, of the principal amount of such Multi-Currency
Note.
DETAILS FOR SETTLEMENT OF MULTI-CURRENCY NOTES
In addition to the Settlement information specified in
"Settlement Procedures" above, the Presenting Agent shall
communicate to the Company in the manner set forth in "Settlement
Procedures" the following information:
1. Specified Currency
2. Denominations
3. Wire transfer and overseas bank account information (if
holder has elected payment in a Specified Currency).
Whether the sale is through an Agent or to the Agent, as
principal, additional or different Settlement details may be set
forth in an amendment to these administrative procedures to be
agreed to by the Agent and the Company.
PART IV: SPECIAL 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 or cause to be performed the custodial,
document control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC and a
Medium-Term Note Certificate Agreement previously entered into
between the Trustee and DTC, and its obligations as a participant
in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Except as otherwise set forth in this Exhibit B, Book-Entry Notes
will be issued in accordance with the administrative procedures set
forth below.
ISSUANCE
On any date of settlement (as defined under "Settlement"
below) for one or more Fixed Rate Book-Entry Notes, the Company
will issue a single Global Security in fully registered form
without coupons representing up to $100,000,000 principal amount,
or the equivalent thereof in any Specified Currency, other than
U.S. dollars, at the Market Exchange Rate used to determine the
denomination of such Book-Entry Note as described below (rounded
down to an integral multiple of 1,000 units of such Specified
Currency), of all of such Notes that have the same original
issuance date, interest rate, redemption or repayment provisions
and Stated Maturity. Similarly, on any settlement date for one or
more Floating Rate Book-Entry Notes, the Company will issue a
single Global Security representing up to $100,000,000 principal
amount, or the equivalent thereof in any Specified Currency, other
than U.S. dollars, at the Market Exchange Rate used to determine
the denomination of such Book-Entry Note as described below
(rounded down to an integral multiple of 1,000 units of such
Specified Currency), of all of such Notes that have the same
interest rate formula, original issuance date, Initial Interest
Rate, Interest Payment Dates, Index Maturity, Spread, Spread
Multiplier, minimum interest rate (if any), maximum interest rate
(if any), redemption or repayment provisions and Stated Maturity.
Each Global Security will be dated and issued as of the date of its
authentication by the Trustee, as Trustee. Each Global Security
will have an interest accrual date (the "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 portion thereof) issued
subsequently upon exchange of a Global Security or in lieu of a
destroyed, lost or stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly provided for
on the predecessor Global Security or Securities (or if no 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 (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note.
IDENTIFICATION NUMBERS
The Company will arrange, on or prior to commencement of a
program for the offering of Book-Entry Notes, with the CUSIP
Service Bureau of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP numbers
(including tranche numbers), consisting of approximately 900 CUSIP
numbers and relating to Global Securities representing the Book-
Entry Notes. The Company will obtain a written list of such series
of reserved CUSIP numbers and will deliver to the Trustee and DTC
such written list of 900 CUSIP numbers of such series. The Company
will assign CUSIP numbers to Global Securities as described below
under Settlement Procedure "B." DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Company has
assigned to Global Securities. When fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, and if it
deems necessary, the Company will reserve additional CUSIP numbers
for assignment to Global Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP numbers the Company shall
deliver such additional CUSIP numbers to the Trustee and DTC.
REGISTRATION
Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Securities Register maintained
under the Indenture governing such Global Security. The beneficial
owner of a Book-Entry Note (or one or more indirect participants in
DTC designated by such owner) will designate one or more
participants in DTC with respect to such Book-Entry Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to
such Book-Entry Note in the account of such Participants. The
ownership interest of such beneficial owner in such Book-Entry Note
will be recorded through the records of such Participants or
through the separate records of such Participants and one or more
indirect participants in DTC.
VOTING
In the event of any solicitation of consents from or voting by
holders of the Book-Entry Notes, the Company or the Trustee shall
establish a record date for such purposes (with no provision for
revocation of consents or votes by subsequent holders) and shall,
to the extent possible, send notice of such record date to DTC not
less than 15 calendar days in advance of such record date.
TRANSFERS
Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such Book-Entry Note.
CONSOLIDATION AND EXCHANGE
The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the CUSIP
numbers of two or more Outstanding Global Securities that represent
(A) Fixed Rate Book-Entry Notes having the same original issuance
date, interest rate, redemption and repayment provisions and Stated
Maturity and with respect to which interest has been paid to the
same date or (B) Floating Rate Book-Entry Notes having the same
interest rate formula, original issuance date, Initial Interest
Rate, Interest Payment Dates, Index Maturity, Spread or Spread
Multiplier, minimum interest rate (if any), maximum interest rate
(if any), redemption and repayment provisions and with respect to
which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is
delivered and at least thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such Global Securities
shall be exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to be assigned
to such replacement Global Security. Upon receipt of such a
notice, DTC will send to its Participants (including the Trustee)
a written reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP numbers of the
Global Securities to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange such Global
Securities for a single Global Security bearing the new CUSIP
number and a new Interest Accrual Date, and the CUSIP numbers of
the exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $150,000,000 (or the equivalent
thereof in any Specified Currency other than U.S. dollars at the
Market Exchange Rate used to determine the denomination of such
Book-Entry Note as described below (rounded down to an integral
multiple of 1,000 units of such Specified Currency)) in aggregate
principal amount, one Global Security will be authenticated and
issued to represent each $150,000,000 (or the equivalent thereof in
any Specified Currency other than U.S. dollars at the Market
Exchange Rate used to determine the denomination of such Book-Entry
Note as described below (rounded down to an integral multiple of
1,000 units of such Specified Currency)) of principal amount of the
exchanged Global Securities and an additional Global Security will
be authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
NOTICE OF REDEMPTION AND REPAYMENT DATES
The Trustee will give notice to DTC prior to each redemption
date or repayment date (as specified in the Book-Entry Note), if
any, at the time and in the manner set forth in the letter of
redemption.
DENOMINATIONS
Book-Entry Notes denominated in U.S. dollars will be issued in
principal amounts of $1,000 or any amount in excess thereof that is
an integral multiple of $1,000. The authorized denomination of any
Book-Entry Notes denominated in other than U.S. dollars will be the
amount of the Specified Currency for such Book-Entry Note
equivalent, at the Market Exchange Rate on the first Business Day
in the City of New York and the country issuing such currency (or,
in the case of ECUs, Brussels) next preceding the date on which the
Company accepts the offer to purchase such Book-Entry Note, to U.S.
$1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency) and any greater amount that is an integral
multiple of 1,000 units of such Specified Currency. Global
Securities representing one or more Book-Entry Notes will be
denominated in principal amounts not in excess of $100,000,000, or
the equivalent thereof in any Specified Currency other than U.S.
dollars at the Market Exchange Rate used to determine the
denomination of such Book-Entry Note (rounded down to an integral
multiple of 1,000 units of such Specified Currency). If one or
more Book-Entry Notes having an aggregate principal amount in
excess of $150,000,000 (or the equivalent thereof in any Specified
Currency other than U.S. dollars at the Market Exchange Rate used
to determine the denomination of such Book-Entry Note down to an
integral multiple of 1,000 units of such Specified Currency) would,
but for the preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to represent each
$150,000,000 principal amount, or the equivalent thereof in any
Specified Currency other than U.S. dollars at the Market Exchange
Rate used to determine the denomination of such Book-Entry Note
(rounded down to an integral multiple of 1,000 units of such
Specified Currency), of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities representing such Book-
Entry Note or Notes shall be assigned the same CUSIP number.
INTEREST
General. Interest on each Book-Entry Note will accrue from the
date of issue of the Global Security representing such Note. Each
payment of interest on a Book-Entry Note will include interest
accrued through the day preceding, as the case may be, the Interest
Payment Date or the date of Maturity, redemption or repayment;
provided, however, that if the Interest Reset Dates with respect to
any such Note are daily or weekly, interest payable on any Interest
Payment Date, other than interest payable on any date on which
principal for such Note is payable, will include interest accrued
from but excluding the second preceding Regular Record Date to and
including the next preceding Regular Record Date. Interest payable
at the Maturity or upon earlier redemption or repayment of a Book-
Entry Note will be payable to the Person to whom the principal of
such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described under
Settlement Procedure "C" below in order to include the amount of
any interest payable and certain other information regarding the
related Global Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
Floating Rate Note Notices. On the first Business Day of
January, April, July and October of each year, the Trustee will
deliver to the Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur with respect to
Floating Rate Book-Entry Notes during the six-month period
beginning on such first Business Day. Promptly after each Interest
Determination Date (as defined in Appendix A hereto) for Floating
Rate Notes, the Company will notify the Trustee, and the Trustee in
turn will notify Standard & Poor's Corporation, of the interest
rates determined on such Interest Determination Date.
PAYMENTS OF PRINCIPAL AND INTEREST
Payments of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Company and DTC a written
notice specifying by CUSIP number the amount of interest to be paid
on each Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with Maturity or an
earlier redemption or repayment date) and the total of such
amounts. DTC will confirm the amount payable on each Global
Security on such Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's Corporation. The
Company will pay to the Trustee, as paying agent, the total amount
of interest due on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to DTC at the times
and in the manner set forth below under "Manner of Payment."
Promptly after each Interest Determination Date for Floating Rate
Book-Entry Notes, the Calculation Agent will notify the Trustee and
Standard & Poor's Corporation of the interest rates determined on
such Interest Determination Date.
Payments at Maturity or Upon Redemption or Repayment. On or
about the first Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of principal and
interest to be paid on each Global Security maturing either at
maturity or any redemption or repayment date in the following
month. The Company, the Trustee and DTC will confirm the amounts
of such principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding the
Maturity or redemption or repayment date of such Global Security.
The Company will pay to the Trustee, as the paying agent, the
principal amount of such Global Security, together with interest
due at such Maturity or redemption or repayment date, as the case
may be. The Trustee will pay such amount to DTC at the times and
in the manner set forth below under "Manner of Payment."
Promptly after payment to DTC of the principal and interest
due at the Maturity of such Global Security, the Trustee will
cancel such Global Security and deliver it to the Company with an
appropriate debit advice. On the first Business Day of each month,
the Trustee will prepare a written statement indicating the total
principal amount of Outstanding Global Securities for which it
serves as paying agent as of the immediately preceding Business
Day.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment Date or
at Maturity or upon redemption or repayment shall be paid by the
Company to the Trustee in funds available for use by the Trustee as
of 9:30 A.M. (New York City time) on such date. The Company will
make such payment on such Global Securities by instructing the
Trustee to withdraw funds from an account maintained by the Company
at the Trustee. For maturity, redemption or any other principal
payments: prior to 10 A.M. (New York City time) on such date or as
soon as possible thereafter, the Trustee will make such payments to
DTC in same day funds in accordance with DTC's Same Day Funds
Settlement Paying Agent Operating Procedures. For interest
payments: the Trustee will make such payments to DTC in accordance
with existing arrangements between DTC and the Trustee. DTC will
allocate such payments to its Participants in accordance with its
existing operating procedures. Neither the Company nor the Trustee
(as Trustee or as Paying Agent nor any other Paying Agent) shall
have any direct responsibility or liability for the payment by DTC
to such Participants of the principal of and interest on the Book-
Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-
Entry Note will be determined and withheld by the Participant,
indirect participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial owner
of such Note.
SETTLEMENT PROCEDURES
In the event of a purchase of Book-Entry Notes by an Agent, as
principal, Settlement details will be as set forth below unless
such details are set forth in the applicable Purchase Agreement to
be entered into between such Agent and the Company pursuant to the
Distribution Agreement.
In the event of a sale of a Book-Entry Note that is a Multi-
Currency Note or an Indexed Note, whether the sale is through an
Agent or to an Agent, as principal, additional or different
Settlement details may be set forth in an amendment to the
administrative procedures to be entered into between such Agent and
the Company.
Other than as contemplated above, settlement procedures with
regard to each Book-Entry Note sold by the Company through an
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone,
telex or facsimile, of the following settlement information:
1. Principal amount of the Book-Entry Note (and, if multiple
Notes are to be issued, denominations thereof).
2. Settlement date.
3. Stated Maturity and, if the Company has the option to
extend the Stated Maturity, the Extension Periods and the
Final Maturity Date.
4. Issue Price and any OID information.
5. Trade date.
6. If such Book-Entry Note is a Fixed Rate Note, whether
such Note is an Amortizing Note.
7. The DTC Participant account number of such Agent.
8. Interest rate (including, if appropriate, such interest
rate information applicable to any Extension Period):
(a) Fixed Rate Notes:
(i) interest rate
(ii) interest payment dates, if other than as
specified above
(iii) date or dates, if any, on which the
interest rate may be reset and the
basis or formula, if any, for such
resetting
(iv) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) date or dates, if any, on which the
spread or spread multiplier may be reset
and the basis or formula, if any, for
such resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest rates,
if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any
9. The date on or after which the Book-Entry Notes are
redeemable at the option of the Company or are to be
repaid at the option of the Holder, and additional
redemption or repurchase provisions, if any.
10. Wire transfer information.
11. Presenting Agent's commission (to be paid in the form of
a discount from the proceeds remitted to the Company upon
settlement).
12. That the Note will be a Book-Entry Note.
B. The Company will assign a CUSIP number to the Global Security
representing such Note and then advise the Trustee by
telephone (confirmed in writing at any time on the same date)
or electronic transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number and the name
of such Agent.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following
settlement information to DTC, the Presenting Agent, Standard
& Poor's Corporation and, upon request, the Trustee under the
Indenture pursuant to which such Note is to be issued:
1. The information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a
Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of
days by which such date succeeds the related "DTC Record
Date" (which term means the Regular Record Date except in
the case of floating rate notes which reset daily or
weekly in which case it means the date 5 calendar days
immediately preceding the Interest Payment Date) and
amount of interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually,
quarterly, etc.).
5. CUSIP number of the Global Security representing such
Book-Entry Note.
6. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
7. The number of Participant accounts to be maintained by
DTC on behalf of the Agents or the Trustee.
D. The Trustee, as Trustee, will complete and authenticate the
note certificate evidencing the Global Security representing
such Book-Entry Note.
E. DTC will credit such Book-Entry Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such
Book-Entry Note to the Trustee's participant account and
credit such Note to the Presenting Agent's participant account
and (ii) debit the Presenting Agent's settlement account and
credit the Trustee's settlement account for an amount equal to
the price of such Book-Entry Note less the Presenting Agent's
commission.
G. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's participant
account and credit such Note to the participant accounts of
the Participants with respect to such Book-Entry Note and (ii)
to debit the settlement accounts of such Participants and
credit the settlement account of the Presenting Agent for an
amount equal to the price of such 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 an account of the Company
maintained at the Trustee funds available for immediate use in
the amount transferred to the Trustee in accordance with
Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a copy of
the most recent Prospectus applicable to the Book-Entry Note
with or prior to any written offer of Book-Entry Notes and the
confirmation and payment by the purchaser of the Book-Entry
Note.
The Presenting Agent will confirm the purchase of such Book-
Entry Note to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Note a
confirmation order or orders through DTC's institutional
delivery system or by mailing a written confirmation to such
purchaser.
SETTLEMENT PROCEDURES TIMETABLE
For offers to purchase Book-Entry Notes solicited by an Agent,
as agent, and accepted by the Company for settlement, Settlement
Procedures "A" through "J" set forth above shall be completed as
soon as possible but not later than the respective times (New York
City time) set forth below:
SETTLEMENT
PROCEDURES TIME
A-B 11:00 A.M. on the Sale date
C 2:00 P.M. on the Sale date
D 3:00 P.M. on date before
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.,
11:00 A.M. and 2:00 P.M., as the case may be, 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 11:00 A.M. and 12:00 Noon,
respectively, on the second Business Day before the settlement
date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no later than 2:00
P.M. on the Business Day immediately preceding the scheduled
settlement date.
FAILURE TO SETTLE
If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement Procedure "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 Book-Entry Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that the
Trustee's participant account contains a principal amount of the
Global Security representing such Book-Entry Note that is at least
equal to the principal amount to be debited. If a withdrawal
message is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will 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 CUSIP Service Bureau procedures, 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 other 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 Book-Entry Note by
the beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the Agent for such Book-Entry Note
may enter SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to Settlement
Procedures "F" and "G," respectively. Thereafter, the 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 Procedure "D," for the authentication and issuance of a
Global Security representing the other Book-Entry Notes to have
been represented by such Global Security and will make appropriate
entries in its records.
EXHIBIT C
PURCHASE AGREEMENT
CBI INDUSTRIES, INC. [DATE]
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention: Treasurer
The undersigned agrees to purchase the following principal
amount of the Notes described in the Distribution Agreement dated
, 1994 (as it may be supplemented or amended from time
to time, the "Distribution Agreement"):
PRINCIPAL AMOUNT: $
SPECIFIED CURRENCY:
DENOMINATED AND INDEXED
CURRENCIES:
INTEREST RATE: %
DISCOUNT: % of Principal Amount
AGGREGATE PRICE TO BE PAID $
TO COMPANY (IN IMMEDIATELY
AVAILABLE FUNDS):
SETTLEMENT DATE:
AMORTIZING NOTES:
EXTENDIBLE NOTES:
OTHER TERMS:
Terms defined in the Prospectus relating to the Notes and in
the Distribution Agreement shall have the same meaning when used
herein.
[In the case of Notes issued in a Specified Currency other
than U.S. dollars, payments of principal of (and premium, if any)
and interest on all Notes will be made in the applicable Specified
Currency; provided, however, that payments of principal of (and
premium, if any) and interest on Notes denominated in other than
U.S. dollars will nevertheless be made in U.S. dollars (i) at the
option of the Holders thereof, (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances
beyond the control of the Company as described below or (iii) if so
specified in the applicable Pricing Supplement.
The U.S. dollar amount to be received by a Holder of a Note
denominated in other than U.S. dollars who elects to receive
payments in U.S. dollars will be based on the highest bid quotation
in The City of New York received by the Currency Determination
Agent (as defined below) as of noon New York City time on the third
Business Day next preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the
Currency Determination Agent) for the purchase by the quoting
dealer of the Specified Currency for U.S. dollars for settlement on
such payment date in the aggregate amount of the Specified Currency
payable to all Holders of Notes electing to receive U.S. dollar
payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available on the
third Business Day preceding the date of payment of principal (and
premium, if any) or interest with respect to any Note, such payment
will be made in the Specified Currency. All currency exchange
costs associated with any payment in U.S. dollars on any such Note
will be borne by the Holder thereof by deductions from such
payment.]
Our obligation to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained
in the Distribution Agreement and to your performance and
observance of all applicable covenants and agreements contained
therein, including, without limitation, your obligations pursuant
to Section 7 thereof. Our obligation hereunder is subject to the
further condition that we shall receive (a) the opinions required
to be delivered pursuant to Sections 5(e) and 5(h) of the
Distribution Agreement, (b) the certificate required to be
delivered pursuant to Section 5(f) of the Distribution Agreement,
(c) the letter referred to in Section 5(g) of the Distribution
Agreement in each case dated as of the above Settlement Date and
(d) [insert other conditions as appropriate].
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement Date, you
will not offer or sell, or enter into any agreement to sell, any
debt securities of the Company, other than borrowings under your
revolving credit agreements and lines of credit, the private
placement of securities and issuances of your commercial paper.
We may terminate this Agreement, immediately upon notice to
you, at any time prior to the Settlement Date, if prior thereto
there shall have occurred: (i) any change, or any development
involving a prospective change, in or affecting primarily the
business, properties, condition (financial or other), results of
operations or prospects of the Company or the Company and its
subsidiaries taken as a whole which materially impairs the
investment quality of the Notes; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such exchange;
(iii) a general moratorium on commercial banking activities
declared by Federal, Illinois or New York State authorities; (iv)
any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act or any public announcement
that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (v)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national calamity or emergency; or (vi) any material
adverse change in the existing financial, political or economic
conditions in the United States, or you are unable to provide any
of the opinions, certificates or letters referred to in the second
preceding paragraph. In the event of such termination, no party
shall have any liability to the other party hereto, except as
provided in Sections 4, 7 and 13 of the Distribution Agreement.
This Agreement shall be governed by and construed in
accordance with the laws of New York.
[INSERT NAME[S] OF AGENTS]
By:
[Title]
ACCEPTED: ________________, 19
CBI INDUSTRIES, INC.
By:
[Authorized Signatory]
EXHIBIT D
[INDEXED NOTE]
AMENDMENT NO.
TO DISTRIBUTION AGREEMENT DATED , 1994, AS
AMENDED
[Insert Title of the Denominated
and Indexed Currencies]
The undersigned hereby agree that for the purposes of the
issue and sale of Notes denominated in [title of currency or
currency unit] (the "Denominated Currency") and indexed to [title
of currency or currency unit] (the "Indexed Currency") pursuant to
the Distribution Agreement, dated , 1994, as it may be
amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The
additions and modifications adopted hereby shall be of the same
effect for the sale under the Distribution Agreement of all Notes
denominated in the Denominated Currency and indexed to the Indexed
Currency, whether offered on an agency or principal basis, but
shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Applicable Foreign
Currency.
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Distribution Agreement shall have
the same meanings as in the Distribution Agreement. The terms
Agent or Agents, as used in the Distribution Agreement, shall be
deemed to refer [only] to the undersigned Agents for purposes of
this Amendment.
[Insert appropriate additions and modifications to the
Distribution Agreement, for example, to opinions of counsel,
conditions to obligations and settlement procedures, etc.]
, 19
CBI INDUSTRIES, INC.
By:
Name:
Title:
[NAME(S) OF AGENT(S) PARTICIPATING
IN THE OFFERING OF THE INDEXED NOTES]
By:
Name:
Title: