DONALDSON, LUFKIN & JENRETTE, INC.
$500,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
September 3, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue New York
New York 10172
BANCAMERICA SECURITIES, INC.
40 East 52nd Street, 6th Floor
New York, New York 10022
BANQUE PARIBAS
787 7th Avenue
New York, New York 10019
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
CITICORP SECURITIES, INC.
399 Park Avenue, 7th Floor
New York, New York 10043
CREDIT LYONNAIS SECURITIES (USA) INC.
1301 6th Avenue, 17th Floor
New York, New York 10019
DEUTSCHE MORGAN GRENFELL INC.
31 West 52nd Street, 3rd Floor
New York, New York 10019
FIRST CHICAGO CAPITAL MARKETS INC.
One First National Plaza
Mail Suite 0595
Chicago, Illinois 60670
NATIONSBANC CAPITAL MARKETS, INC.
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255
SOCIETE GENERALE SECURITIES CORPORATION
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
UBS SECURITIES LLC
299 Park Avenue, 26th Floor
New York, New York 10171
Ladies and Gentlemen:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (the
"Company"), confirms its agreement with each of you (individually, an "Agent"
and collectively, the "Agents") with respect to the issue and sale from time
to time by the Company of its Medium-Term Notes due from nine months or more
from date of issue (the "Notes") at an aggregate initial offering price of up
to $500,000,000 (or the equivalent thereof in one or more foreign currencies
or currency units), as such amount shall be reduced by the aggregate initial
offering price of any other debt securities issued by the Company after the
date hereof, whether within or without the United States ("Other Securities")
pursuant to the registration statement referred to below to the extent that
the aggregate initial offering price of such other debt securities exceeds
$500,000,000, and agrees with each of you (individually, an "Agent," and
collectively, the "Agents," which term shall include any additional agents
appointed pursuant to Section 13 hereof) as set forth in this Agreement. The
Notes will be issued under an indenture dated as of September 3, 1997 (the
"Indenture") between the Company and The Chase Manhattan Bank as Trustee (the
"Trustee"). The Notes shall have the maturities, interest rates, redemption
provisions, if any, and other terms set forth in the Prospectus referred to
below as it may be amended or supplemented from time to time. The Notes will
be issued, and the terms and rights thereof established, from time to time by
the Company in accordance with the Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation
by the Company of the right (A) to sell Notes directly to investors (other
than broker-dealers) in those jurisdictions in which the
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Company is so permitted and (B) to accept (but not solicit) offers to purchase
Notes from time to time through one or more purchasers on substantially the
terms set forth in Exhibit C hereto, provided that the Company shall provide
the Agents with written notice of each such acceptance within two business
days thereof the Company hereby (i) appoints the Agents as the exclusive
agents of the Company for the purpose of soliciting and receiving offers to
purchase Notes from the Company by others pursuant to Section 2(a) hereof and
(ii) agrees that, except as otherwise contemplated herein, whenever it
determines to sell Notes directly to any Agent as principal, it will enter
into a separate agreement (each such agreement a "Terms Agreement"),
substantially in the form of Exhibit A hereto, relating to such sale in
accordance with Section 2(b) hereof. In connection with the Company's
reservation pursuant to clause (B) above, it is understood that the Company
may respond to inquiries and requests for information from any such
purchasers.
The Company has prepared and filed a registration statement on Form
S-3 (No. 333-34149) in respect of the Notes with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined) is hereinafter referred to as the
"Registration Statement" and the prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The Basic Prospectus as supplemented by the prospectus supplement
or supplements (each a "Prospectus Supplement") specifically relating to the
Notes in the form filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act is hereinafter referred to as
the "Prospectus." Any reference in this Agreement to the Registration
Statement, the Basic Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Notes (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
1. Representations. The Company represents and warrants to, and agrees
with, each Agent as of the Commencement Date, as of each date on which the
Company accepts an offer to purchase Notes (including any purchase by an Agent
as principal pursuant to a Terms Agreement), as of each date the Company issues
and sells Notes and as of each date the
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Registration Statement or the Basic Prospectus is amended or supplemented, as
follows (it being understood that such representations and warranties shall be
deemed to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has been declared
effective by the Commission under the Securities Act; no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration
Statement and Prospectus comply and, as amended or
supplemented, if applicable, will comply, in all material
respects with the Securities Act and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust
Indenture Act"); each part of the Registration Statement
filed with the Commission pursuant to the Securities Act,
when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will
not contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
and the Prospectus did not, as of the date of the
Prospectus and any amendment or supplement thereto, contain
any untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented
at such date, if applicable, will not contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or
omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information
relating to any Agent furnished to the Company in writing
by such Agent expressly for use therein.
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of
the Exchange Act, and none of such documents, when they
were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such
documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act,
as applicable, and will not contain an untrue statement of
a material fact or omit to state a material fact
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necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(c) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change,
or any development known by the Company (after diligent
inquiry) involving a prospective material adverse change,
in or affecting the business, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise
than as set forth, incorporated by reference or
contemplated in the Prospectus; and except as set forth,
incorporated by reference or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company and
its subsidiaries taken as a whole.
(d) The Company and Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC") (collectively along with
any other significant subsidiaries identified by the
Company, which are all of the significant subsidiaries of
the Company, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation and has the corporate power and authority to
carry on business as it is currently being conducted and to
own, lease and operate its properties, all as described in
the Prospectus, and each is duly qualified and in good
standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock
of, or other ownership interests in, each of the
Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the
Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature.
(f) The Notes have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for
by the purchasers thereof in accordance with this Agreement
and any applicable Terms Agreement, will be entitled to the
benefits of the Indenture, and will be valid and binding
obligations of the Company, enforceable in accordance with
their terms and the terms of the Indenture except as (i)
the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the
availability of
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equitable remedies may be limited by equitable principles of
general applicability.
(g) This Agreement and any applicable Terms
Agreement each has been duly authorized, executed and
delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
(h) The Indenture has been duly qualified under the
Trust Indenture Act, and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with
its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(i) The Notes will conform to the description
thereof contained in the Prospectus as amended or
supplemented, if applicable, in connection with the
issuance of Notes.
(j) Neither the Company nor any of its Subsidiaries
is in violation of its respective certificate of
incorporation or bylaws or in default in the performance of
any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness
or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this
Agreement, the Notes, the Indenture and any applicable
Terms Agreement, and compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or
other governmental body (except as such may be required
under the Securities Act or state securities or Blue Sky
laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
certificate of incorporation or by-laws of the Company or
any of its Subsidiaries or any agreement, indenture or
other instrument to which it or any of its Subsidiaries is
a party or by which it or any of its Subsidiaries or their
property is bound, or violate or conflict with any laws,
administrative regulations
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or rulings or court decrees applicable to the Company, any of
its Subsidiaries or their respective properties.
(l) Except as otherwise set forth or incorporated
by reference in the Prospectus, there are no material legal
or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described, filed or
incorporated by reference as required.
(m) Neither the Company nor any of its Subsidiaries
has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
nor any federal or state law relating to discrimination in
the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, which
in each case might result in any material adverse change in
the business, prospects, financial condition or results of
operation of the Company and its Subsidiaries, taken as a
whole.
(n) The Company and each of its Subsidiaries has
such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has
fulfilled and performed all of its material obligations
with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company
and its Subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the
Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints
on operating activities and any potential
7
liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(p) Except as otherwise set forth or incorporated
by reference in the Prospectus or such as are not material
to the business, prospects, financial condition or results
of operation of the Company and its Subsidiaries, taken as
a whole, the Company and each of its Subsidiaries has good
and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not
yet due and payable, to all property and assets described
in the Registration Statement as being owned by it. All
leases to which the Company or any of its Subsidiaries is a
party are valid and binding and no default has occurred or
is continuing thereunder, which might result in any
material adverse change in the business, prospects,
financial condition or results of operation of the Company
and its Subsidiaries, taken as a whole, and the Company and
its Subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere
with the use made by the Company or such Subsidiary.
(q) The Company and each of its Subsidiaries
maintains reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the
Securities Act.
(s) The financial statements, together with related
schedules and notes forming part of or incorporated by
reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations
and changes in financial position of the Company and its
subsidiaries on the basis stated or incorporated by
reference in the Registration Statement at the respective
dates or for the respective periods to which they apply;
such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
involved, except as disclosed therein; and the other
financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto)
is, in all material respects, accurately presented and
prepared on a basis consistent with such financial
statements and the books and records of the Company and its
subsidiaries.
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(t) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended.
(u) Except as described in the Prospectus, no
holder of any security of the Company has any right to
require registration of shares of common stock or any other
security of the Company.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(w) The Company and each of its Subsidiaries
maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(x) All material tax returns required to be filed
by the Company and each of its subsidiaries in any
jurisdiction have been filed, other than those filings
being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which
adequate reserves have been provided.
2. Solicitations by Agents of Offers to Purchase; Purchases by Agent
as Principal.
(a) On the basis of the representations and
warranties herein contained, but subject to the terms and
conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company,
to use its reasonable efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions
set forth herein and in the Prospectus as amended or
supplemented from time to time, and in connection therewith
will use the Prospectus as then amended or supplemented
which has been most recently distributed to you by the
Company, only as permitted or contemplated thereby, and
will solicit purchases of the Notes only as permitted by
the Securities Act and the applicable securities laws or
regulations of any jurisdiction (including without
limitation any applicable state securities and Blue Sky
laws).
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So long as this Agreement shall remain in effect
with respect to any Agent, and subject to the reservations
set forth in clauses (A) and (B) of the second paragraph of
this Agreement, the Company shall not, without the consent
of such Agent, solicit or accept offers to purchase, or
sell, Notes or any other debt securities with a maturity at
the time of original issuance of nine months or more except
pursuant to this Agreement and any Terms Agreement, or
except pursuant to a private placement not constituting a
public offering under the Securities Act or except in
connection with a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time,
for any period of time or permanently, the solicitation of
offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, each Agent
will suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised such
Agent or Agents that such solicitation may be resumed.
During the period of time that such solicitation is
suspended, the Company shall not be required to deliver any
opinions, letters or certificates in accordance with
Sections 4(i), 4(j) and 4(k); provided that if the
Registration Statement or Prospectus is amended or
supplemented during the period of suspension (other than by
an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization
schedules or maturities offered for the Notes or for a
change that the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase
Notes until the Company has delivered such opinions,
letters and certificates as such Agent may reasonably
request.
Unless otherwise provided for in the applicable
Pricing Supplement, the Company agrees to pay each Agent,
as consideration for the sale of each Note resulting from a
solicitation made or an offer to purchase received by such
Agent, a commission in the form of a discount from the
purchase price of such Note in an amount not to exceed the
following applicable percentage of the principal amount of
such Note sold:
Commission (percentage of aggregate
Maturities of Notes Sold principal amount)
- ------------------------ -----------------------------------
From 9 months to less than 1 year............................ .125%
From 1 year to less than 18 months........................... .150%
From 18 months to less than 2 years.......................... .200%
From 2 years to less than 3 years............................ .250%
From 3 years to less than 4 years............................ .350%
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From 4 years to less than 5 years............................ .450%
From 5 years to less than 6 years............................ .500%
From 6 years to less than 7 years............................ .550%
From 7 years to less than 10 years........................... .625%
From 10 years to less than 12 years.......................... .650%
From 12 years to less than 15 years.......................... .675%
From 15 years to less than 20 years.......................... .750%
From 20 years to and including 30 years...................... .875%
The Agents are authorized to solicit offers to
purchase Notes only in the principal amount of $1,000 (or,
if Notes are denominated in currencies, currency units or
composite currencies other than U.S. dollars, such other
minimum denomination specified in the applicable Pricing
Supplement) or any amount in excess thereof which is an
integral multiple of $1,000 (or, if Notes are denominated
in currencies or currency units other than U.S. dollars,
integrals in excess of the minimum denomination specified
in the applicable Pricing Supplement). Each Agent shall
communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent
that in its judgment should be considered by the Company.
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 sole
discretion, to reject any offer to purchase Notes, as a
whole or in part, that it reasonably considers to be
unacceptable and any such rejection shall not be deemed a
breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Notes sold to
a purchaser solicited by an Agent as agent and the payment
therefor are set forth in the Administrative Procedures (as
hereinafter defined).
(b) Each sale of Notes by the Company directly to
any of you as principal for resale to others shall be made
in accordance with the terms of this Agreement and (unless
any such Agent shall otherwise agree) a Terms Agreement
which will provide for the sale and purchase of such Notes.
For the purposes of this Agreement, the terms "Agent" and
"Agents" shall refer to you acting solely in the capacity
as agent for the Company hereunder and not as principal,
the term "Purchaser" shall refer to you acting solely as
principal hereunder and not as agent, and the term "you"
shall refer to each of you acting in both such capacities
or in either such capacity; provided, however, that no
Additional Agent may act as principal hereunder. Each Terms
Agreement will take the form of either (i) a written
agreement substantially in the form of Exhibit A hereto or
(ii) an exchange of any standard form of written
telecommunication between a Purchaser and the Company, and
may also specify certain provisions relating to the
reoffering of such Notes by such Purchaser. The commitment
of any Purchaser to purchase Notes shall be deemed to have
been made on the basis of
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the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions
herein and in the applicable Terms Agreement set forth.
Each Terms Agreement shall specify the principal amount of
Notes to be purchased by such Purchaser pursuant thereto,
the price to be paid to the Company for such Notes, the
maturity date of such Notes, the interest rate or interest
rate basis, if any, applicable to such Notes, any other
terms of such Notes, the time and date and place of
delivery of and payment for such Notes (the time and date
of any and each such delivery and payment, the "Time of
Delivery"), any provisions relating to rights of, and
defaults by, underwriters acting together with such
Purchaser in the reoffering of Notes, and shall also
specify any modification of the requirements for opinions
of counsel, accountants' letters and officers' certificates
pursuant to Section 4 hereof. Unless otherwise specified in
a Terms Agreement, the procedural details relating to the
issue and delivery of Notes purchased by a Purchaser and
the payment therefor shall be as set forth in the
Administrative Procedures.
(c) The Company acknowledges that the obligations
of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have
complete discretion as to the manner in which it solicits
purchasers for the Notes and as to the identity thereof.
(d) The Agents and the Company agree to perform
their respective duties and obligations specifically
provided to be performed in the Medium-Term Notes
Administrative Procedures (the "Administrative Procedures")
attached hereto as Exhibit B, as the same may be amended
from time to time. The Administrative Procedures may be
amended only by written agreement of the Company and the
Agents.
(e) The Company agrees to notify each Agent of
sales by the Company of Other Securities and the aggregate
initial offering price of such Other Securities.
(f) Each of the Agents hereby severally and not
jointly agrees, as agent of the Company, directly or
indirectly, with respect to any Note denominated in a
currency other than U.S. dollars, not to solicit offers to
purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or
deliver, such Note in or to residents of the country
issuing such currency (or, if such Note is denominated in a
composite currency, in any country issuing a currency
comprising a portion of such composite currency) except as
permitted by applicable law.
3. Commencement Date. The documents required to be delivered pursuant
to Section 6 hereof on the Commencement Date shall be delivered to the Agents
at the offices of Donaldson, Lufkin & Jenrette Securities Corporation, 277
Park Avenue, New York, New York 10172, at
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11:00 a.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Notes is commenced or the first date on
which the Company accepts an offer by any Agent to purchase Notes as principal
(such time and date being referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees with
each Agent:
(a) (i) To make no amendment or supplement to the
Registration Statement or the Prospectus prior to the
termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement which shall be disapproved
by any Agent after reasonable opportunity to comment
thereon, provided, however, that the foregoing shall not
apply to any of the Company's periodic filings with the
Commission described in subsection (iii) below, copies of
which filings the Company will cause to be delivered to the
Agents promptly after their transmission to the Commission
for filing; (ii) subject to the foregoing clause (i),
promptly to cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Notes to be sold through or to
such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by
such Agent and to file such Pricing Supplement in
accordance with Rule 424(b) under the Securities Act; and
(iii) promptly to file all reports and any definitive proxy
or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a Prospectus is required in connection with the
offering or sale of the Notes. The Company will promptly
advise each Agent (x) of the filing of any amendment or
supplement to the Basic Prospectus or any amendment to the
Registration Statement and of the effectiveness of any such
amendment to the Registration Statement; (y) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order
preventing or suspending the use of any Prospectus relating
to the Notes or the initiation or threatening of any
proceeding for that purpose, or of any request by the
Commission for any amendment or supplement of the
Registration Statement or Prospectus or for additional
information; and (z) of the receipt by the Company of any
notification with respect to any suspension of the
qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose. The Company agrees to use
its best efforts to prevent the issuance of any such stop
order or of any such order preventing or suspending the use
of any such prospectus or of any notification suspending
any such qualification and, if issued, to use promptly its
best efforts to obtain withdrawal thereof as soon as
possible. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange
Act of any document incorporated by reference in the
13
Prospectus, no Agent shall be obligated to solicit
offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) To endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as the Agents shall reasonably request and to
continue such qualification in effect so long as reasonably
required in connection with the distribution of the Notes
and to pay all fees and expenses (including fees and
disbursements of counsel to the Agents) reasonably incurred
in connection with such qualification and in connection
with the determination of the eligibility of the Notes for
investment under the laws of such jurisdictions as such
Agent may designate; provided that the Company shall not be
required to file a general consent to service of process in
any jurisdiction or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified.
(c) To furnish each Agent and counsel to the
Agents, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the
period mentioned in paragraph (d) below, to furnish each
Agent as many copies of the Prospectus (including all
amendments and supplements thereto) and documents
incorporated by reference therein as such Agent may
reasonably request.
(d) If at any time when a Prospectus relating to
the Notes is required to be delivered under the Securities
Act, any event shall occur as a result of which the
Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances when such
Prospectus is delivered to a purchaser, not misleading, or,
if in the opinion of the Agents or the Company, it is
necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by
telephone (with confirmation in writing) and request each
Agent (i) in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Notes from the
Company; and (ii) to cease sales of any Notes such Agent
may then own as principal (and, if so notified in either
case, such Agent shall immediately cease such solicitations
or sales and cease using the Prospectus as soon as
practicable, but in any event not later than one business
day later). If the Company shall decide to amend or
supplement the Registration Statement or the Prospectus, as
then amended or supplemented, it shall so advise each Agent
promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed
promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus, as then
amended or supplemented, that will correct such statement
or omission or effect such compliance and will supply such
amended or supplemented Prospectus to the Agents in such
quantities as they
14
may reasonably request. If any such amendment or supplement
and any documents, opinions, letters and certificates
furnished to the Agents pursuant to Sections 4(e), 4(i),
4(j) and 4(k) in connection with the preparation and filing
of such amendment or supplement are satisfactory in all
respects to the Agents, upon the filing with the Commission
of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration
Statement, the Agents will resume the solicitation of
offers to purchase Notes hereunder. Notwithstanding any
other provision of this Section 4(d), until the
distribution of any Notes any Agent may own as principal
has been completed or in the event such Agent, in the
opinion of its counsel, is otherwise required to deliver a
Prospectus in respect of a transaction in the Notes, if any
event described in this Section 4(d) occurs the Company
will, at its own expense, promptly prepare and file with
the Commission an amendment or supplement, satisfactory in
all respects to such Agent, that will correct such
statement or omission or effect such compliance, will
supply such amended or supplemented Prospectus to such
Agent in such quantities as such Agent may reasonably
request and shall furnish to such Agent pursuant to
Sections 4(e), 4(i), 4(j) and 4(k) such documents,
certificates, opinions and letters as it may request in
connection with the preparation and filing of such
amendment or supplement.
(e) To furnish to the Agents during the term of
this Agreement such relevant documents and certificates of
officers of the Company relating to the business,
operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Notes, this
Agreement, the Administrative Procedures, any applicable
Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from
time to time reasonably request and shall notify the Agents
promptly in writing of any downgrading, or on its receipt
of any notice of (i) any intended or potential downgrading
or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any of
securities of, or guaranteed by, the Company by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
(f) To make generally available to its security
holders and to such Agent as soon as practicable earnings
statements which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter
of the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement with
respect to each sale of Notes.
15
(g) So long as any Notes are outstanding, to
furnish to such Agent copies of all reports or other
communications (financial or other) furnished to holders of
Notes and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the
Company is listed.
(h) That, from the date of any applicable Terms
Agreement with such Agent or other agreement by such Agent
to purchase Notes as principal and continuing to and
including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Notes,
without the prior written consent of such Agent.
(i) That each time that (i) the Registration
Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement providing solely
for the specification of or a change in the interest rates,
redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem to be
immaterial), the Company shall furnish or cause to be
furnished forthwith to the Agents the written opinion of
Michael A. Boyd, the General Counsel of the Company, or
other counsel for the Company satisfactory to the Agents,
dated the date of such amendment or supplement, in form
satisfactory to the Agents, of the same tenor as the
opinion referred to in Section 6(b) hereof but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of such opinion; or,
in lieu of such opinion, counsel last furnishing such an
opinion, may furnish to the Agents a letter to the effect
that such Agents may rely on the opinion of such counsel
which was last furnished to such Agents to the same extent
as though it were dated the date of such letter (except
that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended or supplemented to date of delivery of such
letter).
(j) That each time that the Registration Statement
or the Prospectus is amended or supplemented to set forth
amended or supplemental financial information or such
amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus,
the Company shall cause its independent public accountants,
forthwith to furnish each Agent a letter, dated the date of
the effectiveness of such amendment or the date of filing
of such supplement, in form satisfactory to such Agent, of
the same tenor as the letter referred to in Section 6(d)
with such changes as may be necessary to reflect the
amended and supplemental financial information included or
incorporated by reference in the Registration Statement and
the Prospectus, as amended or supplemented to the date of
such letter; provided that if the Registration Statement or
the Prospectus is amended or supplemented solely to include
or
16
incorporate by reference financial information as of and
for a fiscal quarter, such independent public accountants
may limit the scope of such letter, which shall be
satisfactory in form to each Agent, to the unaudited
financial statements and the related "Management's
Discussion and Analysis of Financial Condition and Results
of Operations" included in such amendment or supplement,
unless any other information included or incorporated by
reference therein of an accounting, financial or
statistical nature is of such a nature that, in the
reasonable judgment of any Agent, such letter should cover
such other information; provided further that, if during
the period from the date hereof to and including December
31, 1997, no purchase of Notes by a Purchaser pursuant to a
Terms Agreement shall have taken place, then the obligation
of the Company's certified public accountants to furnish
such letters pursuant to this paragraph (j) shall be
suspended. Thereafter, upon the purchase of any Notes by a
Purchaser pursuant to a Terms Agreement, the Company's
certified public accountants shall furnish such letter as
would most recently have been issued pursuant to this
paragraph (j) if no suspension had occurred, and such
accountants' obligations under this paragraph (j) shall
resume.
(k) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by an amendment or supplement providing solely for a change
in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), the Company shall
furnish or cause to be furnished forthwith to the Agents a
certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement in form
satisfactory to the Agents, of the same tenor as the
certificates referred to in Section 6(e) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of delivery of such
certificate or to the effect that the statements contained
in the certificate referred to in Section 6(e) hereof which
was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except
that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended or
supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Notes is consummated,
pay all costs and expenses incident to the performance of its obligations
hereunder and under any applicable Terms Agreement, including without limiting
the generality of the foregoing, all costs and expenses: (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of
17
the Notes under the laws of such jurisdictions as the Agents (or in connection
with any Terms Agreement, the applicable Agent) may designate (including fees
of counsel for the Agents (or such Agent) and their disbursements), (iv) in
connection with the listing of the Notes on any stock exchange, (v) related to
any filing with National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, any Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Agents and dealers of copies
of the Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (vii) payable to rating agencies in connection
with the rating of the Notes, (viii) the fees and disbursements of counsel for
the Agents incurred in connection with the offering and sale of the Notes,
including any opinions to be rendered by such counsel hereunder and (ix) any
advertising and out-of-pocket expenses incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the Notes, the
obligation of any Purchaser to purchase Notes pursuant to any Terms Agreement,
and the obligation of any other purchaser to purchase Notes shall in each case
be subject (1) to the condition that all representations and warranties of the
Company herein and all statements of officers of the Company made in any
certificate furnished pursuant to the provisions hereof are true and correct
(i) in the case of an Agent's obligation to solicit offers to purchase Notes,
at and as of such Solicitation Time and (ii) in the case of any Purchaser's or
any other purchaser's obligation to purchase Notes, at and as of the time the
Company accepts the offer to purchase such Notes and, as the case may be, at
and as of the related Time of Delivery or time of purchase; (2) to the
condition that at or prior to such Solicitation Time, time of acceptance, Time
of Delivery or time of purchase, as the case may be, the Company shall have
complied with all its agreements and all conditions on its part to be
performed or satisfied hereunder; and (3) to the following additional
conditions when and as specified (it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
discretionary judgment on behalf of the Company or any purchaser in respect of
the fulfillment of any such condition):
(a) Prior to such Solicitation Time or
corresponding Time of Delivery or time of purchase, as the
case may be:
(i) the Prospectus as amended or
supplemented (including, if applicable, the Pricing
Supplement) with respect to such Notes shall have
been filed with the Commission pursuant to Rule
424(b) under the Securities Act within the
applicable time period prescribed for such filing
by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of
the Registration Statement shall have been issued
and no proceedings for that purpose shall have been
commenced or shall be pending before or
contemplated by the Commission;
18
(ii) there shall not have been any
downgrading, nor shall any notice have been given
of any intended or potential downgrading or any
review or possible change that does not indicate
the direction of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating
organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act
subsequent to the date hereof;
(iii) there shall not have been any
change, or any development involving a prospective
adverse change, in the capital stock or in the
long-term debt of the Company or any of its
Subsidiaries from that set forth or incorporated by
reference in the Registration Statement and
Prospectus which would, in the opinion of the
applicable Agents, materially impair the investment
quality of the Notes;
(iv) the Company and its Subsidiaries
shall have no liability or obligation, direct or
contingent, which is material to the Company and
its Subsidiaries, taken as a whole, other than
those reflected or incorporated by reference in the
Registration Statement and the Prospectus;
(v) there shall not have been any adverse
change or development involving a prospective
adverse change, in the condition, financial or
otherwise, of the Company or any of its
Subsidiaries or the earnings, affairs, or business
prospects of the Company or any of its
Subsidiaries, whether or not arising in the
ordinary course of business, which would, in the
opinion of the applicable Agent, materially impair
the investment quality of the Notes; and
(vi) there shall not have been (A) any
outbreak or escalation of hostilities or other
national or international calamity or crisis or
change in economic conditions or in the financial
markets of the United States or elsewhere that, in
the judgment of the applicable Agent, is material
and adverse and would, in the judgment of the
applicable Agent, make it impracticable to market
the Notes on the terms and in the manner
contemplated in the Prospectus, (B) the suspension
or material limitation of trading in securities on
the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market System or
limitation on prices for securities on any such
exchange or National Market System, (C) the
enactment, publication, decree or other
promulgation of any federal or state statute,
regulation, rule or order of any court or other
governmental authority which in the opinion of the
applicable Agent materially and adversely affects,
or will materially and adversely affect, the
business or operations of the Company or any
Subsidiary, (D) the
19
declaration of a banking moratorium by either
federal or New York State authorities or (E) the
taking of any action by any federal, state or local
government or agency in respect of its monetary or
fiscal affairs which in the opinion of the
applicable Agent has a material adverse effect on
the financial markets in the United States.
(b) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, Michael A. Boyd, General Counsel of the
Company, or such other counsel acceptable to the Agents,
shall have furnished to the Agents or the Purchaser, as the
case may be, his written opinion, dated the Commencement
Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agents or such Purchaser, as
the case may be, to the effect that:
(i) the Company has been duly
incorporated, is validly existing as a corporation
in good standing under the laws of the State of
Delaware and has the corporate power and authority
required to carry on its business as it is
currently being conducted and to own, lease and
operate its properties;
(ii) each of the Subsidiaries has been
duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate
power and authority required to carry on its
business as it is currently being conducted and to
own, lease and operate its properties;
(iii) the Company and each of its
Subsidiaries is duly qualified and is in good
standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature
of its business or its ownership or leasing of
property requires such qualification, except where
the failure to be so qualified would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole;
(iv) all of the outstanding shares of
capital stock of, or other ownership interests in,
each of the Subsidiaries have been duly and validly
authorized and issued, are fully paid and
non-assessable and are owned by the Company, free
and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(v) the Notes have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof in
accordance with the terms of this Agreement and any
applicable Terms Agreement, will be
20
entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company,
enforceable against the Company in accordance with
their terms and the terms of the Indenture except
(a) as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights and
remedies generally and (b) as such enforcement may
be limited by general principles of equity,
regardless of whether enforcement is sought in a
proceeding at law or in equity;
(vi) this Agreement and any applicable
Terms Agreement each has been duly authorized,
executed and delivered by the Company and is a
valid and binding agreement of the Company, except
as rights to indemnity and contribution thereunder
may be limited by applicable law;
(vii) the Indenture has been duly
qualified under the Trust Indenture Act and has
been duly authorized, executed and delivered by the
Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) is a
valid and binding agreement of the Company,
enforceable in accordance with its terms except (a)
as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies
generally and (b) as such enforcement may be
limited by general principles of equity, regardless
of whether enforcement is sought in a proceeding at
law or in equity;
(viii) the Registration Statement has
become effective under the Securities Act, no stop
order suspending its effectiveness has been issued
and no proceedings for that purpose are, to the
knowledge of such counsel, pending before or
contemplated by the Commission;
(ix) to the best of such counsel's
knowledge, the Company is not in violation of its
certificate of incorporation or by-laws, except for
such violations that would not have a material
adverse effect on the Company and its Subsidiaries,
taken as a whole;
(x) to the best of such counsel's
knowledge, none of the Subsidiaries is in violation
of its respective certificate of incorporation or
by-laws, except for such violations that would not
have a material adverse effect on the Company and
its Subsidiaries, taken as a whole, and neither the
Company nor any of its Subsidiaries is in default
in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or
any other agreement, indenture or instrument
material to the condition of the business of the
Company and its Subsidiaries, taken as a
21
whole, to which the Company or any of its
Subsidiaries is a party or by which the Company or
any of its Subsidiaries or any of their respective
properties are bound;
(xi) the execution, delivery and
performance by the Company of this Agreement, the
Notes, the Indenture and any applicable Terms
Agreement and compliance by the Company with all the
provisions hereof and thereof will not, to the best
of such counsel's knowledge based solely upon due
inquiry of responsible officers of the Company, (A)
require any consent, approval, authorization or
other order of any court, regulatory body,
administrative agency or other governmental body
(except such as may be required under the Securities
Act, the Trust Indenture Act or state securities or
Blue Sky laws or by the National Association of
Securities Dealers, Inc.), except where the failure
to obtain such consents, approvals, authorizations
or other orders would not have a material adverse
effect on the Company and its Subsidiaries, taken as
a whole; (B) conflict with or constitute a breach of
any of the terms or provisions of the certificate of
incorporation or by-laws of the Company or any of
its Subsidiaries; (C) violate or conflict with any
laws, administrative regulations or, to the best of
such counsel's knowledge, rulings or court decrees
applicable to the Company or any of its Subsidiaries
or their respective properties except for such
violations or conflicts that would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole; or (D) to the best
of such counsel's knowledge, conflict with or
constitute a breach of any of the terms or
provisions of, or a default under, any agreement,
indenture or other instrument material to the
condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company
or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries or any of
their respective properties are bound;
(xii) to the best of such counsel's
knowledge, the Company and each of its Subsidiaries
has such permits, licenses, franchises and
authorizations (collectively, "permits") of and
from, and has made such declarations and filings
with, governmental or regulatory authorities,
including without limitation, state regulatory
organization, as are necessary to own, lease and
operate its respective properties and to conduct
its business in the manner described or
incorporated by reference in the Prospectus, except
where the failure to obtain such permits or make
such declarations and filings would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole; to the best of such
counsel's knowledge, the Company and each of its
Subsidiaries has fulfilled and performed all of its
obligations with respect to such permits, except
where failure to do so would not have a material
adverse effect on
22
the Company and its Subsidiaries, taken as a whole,
and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or
termination thereof or results in any other
impairment of the rights of the holder of any such
permit, except where such revocation, termination or
impairment would not have a material adverse effect
on the Company and its Subsidiaries, taken as a
whole, subject, in each case, to such qualifications
as may be set forth or incorporated by reference in
the Prospectus; and, to the best of such counsel's
knowledge, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the
Company or any of its Subsidiaries;
(xiii) to the best of such counsel's
knowledge, all leases to which the Company or any
of its Subsidiaries is a party are valid and
binding and no default has occurred or is
continuing thereunder which might result in any
material adverse change in the business, prospects,
financial condition or results of operation of the
Company and its Subsidiaries, taken as a whole, and
the Company and its Subsidiaries enjoy peaceful and
undisturbed possession under all such leases to
which any of them is a party as lessee with such
exceptions as do not materially interfere with the
use made by the Company or such Subsidiary;
(xiv) the statements (A) in the Prospectus
under the captions "Description of Notes,"
"Description of Debt Securities" and "Plan of
Distribution," (B) incorporated by reference in the
Prospectus from Item 3 of Part I of the Company's
most recent Annual Report on Form 10-K, if any, for
the most recently completed fiscal year of the
Company, (C) incorporated by reference in the
Prospectus from Item 1 of Part II of the Company's
Quarterly Reports on Form 10-Q, if any, filed since
such Annual Report, (D) incorporated by reference
in the Prospectus from Item 5 of the Company's
Current Reports on Form 8-K, if any, filed since
such Annual Report and (E) in the Registration
Statement in Item 15 of Part II, insofar as such
statements constitute a summary of legal matters,
documents or proceedings referred to therein,
fairly present the information called for with
respect to such legal matters, documents and
proceedings;
(xv) to the best of such counsel's
knowledge, based solely upon due inquiry of
responsible officers of the Company, there is no
legal or governmental proceeding pending or
threatened to which the Company or any of its
subsidiaries is a party or to which any of their
respective property is subject which is required to
be described or incorporated by reference in the
Registration Statement or the Prospectus and is not
so
23
described or incorporated by reference, or of any
contract or other document which is required to be
described or incorporated by reference in the
Registration Statement or the Prospectus or is
required to be filed as an exhibit to the
Registration Statement which is not described or
filed or incorporated by reference as required;
(xvi) the Company is not an "investment
company" within the meaning of the Investment
Company Act of 1940, as amended;
(xvii) to the best of such counsel's
knowledge, after due inquiry of responsible
officers of the Company, no holder of any security
of the Company has any right to require
registration of shares of common stock or any other
security of the Company except as disclosed or
incorporated by reference in the Prospectus;
(xviii) each document incorporated by
reference in the Registration Statement and the
Prospectus (except for the financial statements
included therein as to which such counsel need
express no opinion) complied as to form when filed
with the Commission in all material respects with
the Exchange Act; and
(xix) (1) the Registration Statement and
the Prospectus and any supplement or amendment
thereto (except for financial statements, schedules
and other financial data, as to which no opinion
need be expressed) comply as to form in all
material respects with the Securities Act, and (2)
nothing has come to such counsel's attention that
would lead such counsel to believe that (except for
financial statements, schedules and other financial
data, as aforesaid and except for the part of the
Registration Statement that constitutes the Form
T-1) the Registration Statement and the prospectus
included therein at the time the Registration
Statement became effective contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or that the Prospectus, as amended or
supplemented, if applicable (except for financial
statements, schedules and other financial data, as
aforesaid) contained any untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading. In giving such opinion
with respect to the matters covered by clause (xix)
such counsel may state that his opinion and belief
are based upon his participation in the preparation
of the Registration Statement and Prospectus and
any amendments or supplements thereto and review
and discussion of the contents thereof, but are
without independent check or verification except as
specified.
24
(c) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, Wilmer, Cutler & Pickering, counsel to
the Agents, shall have furnished to the Agents or such
Purchaser, as the case may be, their opinion, dated the
Commencement Date or Time of Delivery, as the case may be,
in form and substance satisfactory to such Agents or such
Purchaser, as the case may be, as to the matters referred
to in clauses (v), (vi), (vii), (viii), (xiv) (but only
with respect to the statements under the caption
"Description of Notes," "Description of Debt Securities"
and "Plan of Distribution") and (xix) of the foregoing
paragraph (b). In giving such opinion with respect to the
matters covered by clause (xix) such counsel may state that
their opinion and belief are based upon their participation
in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are
without independent check or verification except as
specified.
(d) On the Commencement Date, the Company's
independent certified public accountants who have certified
the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus, as then amended or
supplemented, shall have furnished to the Agents a letter,
dated within 5 business days of the Commencement Date, in
form and substance satisfactory to the Agents, containing
statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information relating to the Company contained in or
incorporated by reference in the Registration Statement and
the Prospectus, as then amended or supplemented.
(e) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, the Agents or such Purchaser, as the case
may be, shall have received a certificate or certificates
signed by an executive officer of the Company, dated the
Commencement Date or Time of Delivery, as the case may be,
to the effect set forth in Section 6(a)(i), (ii), (iii),
(iv) and (v) above and to the further effect that (1) the
representations and warranties of the Company contained
herein are true and correct on and as of the Commencement
Date or Time of Delivery, as the case may be, as if made on
and as of such date and (2) the Company has complied with
all agreements and all conditions on its part to be
performed or satisfied hereunder or under the applicable
Terms Agreement or other agreement at or prior to the
Commencement Date or Time of Delivery, as the case may be.
25
(f) On the Commencement Date, Wilmer, Cutler &
Pickering, special tax counsel to the Company, shall have
furnished an opinion dated the Commencement Date confirming
that the information set forth in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations" is accurate in all material respects.
(g) On the Commencement Date and at each Time of
Delivery, the Company shall have furnished to the Agents or
the Purchaser, as the case may be, such further
certificates, information and documents as such Agents or
such Purchaser, as the case may be, may reasonably request.
7. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each Agent and each person, if any, who controls
any Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities
and judgments caused by or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus
(as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by or arising out of any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are
caused by or arising out of any such untrue statement or
omission or alleged untrue statement or omission based upon
information relating to any Agents furnished in writing to
the Company by or on behalf of any Agent expressly for use
therein.
(b) In case any action shall be brought against any
Agent or any person controlling such Agent, based upon any
preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the
Company, such Agent shall promptly notify the Company in
writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory
to such indemnified party and payment of all fees and
expenses. Any Agent or any such controlling person shall
have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of
such Agent or such controlling person unless (i) the
employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company
shall have failed to assume the defense and employ counsel
or (iii) the named parties to any such action (including
any impleaded parties) include both such Agent or such
controlling person and the Company and such Agent or such
controlling person shall have
26
been advised by such counsel that there maybe one or more
legal defenses available to it which are different from
or additional to those available to the Company (in which
case the Company shall not have the right to assume the
defense of such action on behalf of such Agent or such
controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local
counsel) for all such Agents and controlling persons, which
firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation, subject to approval by a
majority of such Agents, and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected
without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and
hold harmless any Agent and any such controlling person from
and against any loss or liability by reason of such
settlement. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of
counsel are at the expense of the indemnifying party and an
indemnified party shall have requested the indemnifying party
to reimburse the indemnified party for such fees and expenses
of counsel as incurred, such indemnifying party agrees that
it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered
into more than ten business days after the receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for
reimbursement 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.
(c) Each Agent agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and any
person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Agent but only with reference to
information relating to such Agent furnished in writing by
or on behalf of such Agent expressly for use in the
Registration Statement, the Prospectus or
27
any preliminary prospectus. In case any action shall be
brought against the Company, any of its directors, any such
officer or any person controlling the Company based on the
Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity maybe sought
against any Agent, such Agent shall have the rights and
duties given to the Company (except that if the Company shall
have assumed the defense thereof, such Agent shall not be
required to do so, but may employ separate counsel therein
and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
Agent), and the Company, its directors, any such officers and
any person controlling the Company shall have the rights and
duties given to the Agent, by Section 7(b) hereof.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and
judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on
the one hand and the Agents on the other hand 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 and the Agents in
connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments,
as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Agents
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, and the total
underwriting discounts and commissions received by the
Agents from the offering of the Notes, bear to the total
price to the public of the Notes. The relative fault of the
Company and the Agents shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a
material fact relates to information supplied by the
Company or the Agents and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and each Agent agree that it would not
be just and equitable if contribution pursuant to this
Section 7(d) were determined by prorata allocation (even if
the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take
account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
such action or claim.
28
Notwithstanding the provisions of this Section 7, no Agent
shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased
by or sold through such Agent and distributed to the public
exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Agents' obligations
to contribute pursuant to this Section 7(d) are several in
proportion to the respective principal amount of Notes
purchased by or through each of the Agents hereunder and not
joint.
8. Termination.
(a) This Agreement may be terminated at any time
(i) by the Company with respect to any or all of the Agents
or (ii) by any Agent with respect to itself only, in each
case upon the giving of written notice of such termination
to each other party hereto. Any Terms Agreement shall be
subject to termination in the absolute discretion of the
Agent or Agents that are parties thereto on the terms set
forth or incorporated by reference therein. The termination
of this Agreement shall not require termination of any
agreement by an Agent to purchase Notes as principal
(whether pursuant to a Terms Agreement or otherwise) and
the termination of such an agreement shall not require
termination of this Agreement. In the event this Agreement
is terminated with respect to any Agent, (x) this Agreement
shall remain in full force and effect with respect to any
Agent as to which such termination has not occurred, (y)
this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which
have previously accrued or which relate to Notes which are
already issued, agreed to be issued or the subject of a
pending offer at the time of such termination and (z) in
any event, the provisions of the fourth paragraph of
Section 2(a), Section 2(c), the last sentence of Section
4(d) and Sections 4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall
survive; provided that if at the time of termination an
offer to purchase Notes has been accepted by the Company
but the time of delivery to the purchaser or its agent of
such Notes has not yet occurred, the provisions of Sections
2(b), 2(d), 4(a) through 4(e), 4(h)through 4(k) and 6 shall
also survive. If any Terms Agreement is terminated, the
provisions of the last sentence of Section 4(d) and
Sections 2(b), 2(d),4(a), 4(b), 4(e), 4(g) through 4(k), 5,
6, 7, 9, 10, 12 and 15 (which shall have been incorporated
by reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall
be terminated by an Agent or Agents because of any failure
or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement
or any
29
Terms Agreement or if for any reason the Company
shall be unable to perform its obligations under this
Agreement or any Terms Agreement or any condition of any
Agent's obligations cannot be fulfilled, the Company agrees
to reimburse each Agent or such Agents as have so
terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by
such Agent or Agents in connection with this Agreement or
the offering of Notes.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Notes from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Notes. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company
was solicited by such Agent and has been accepted by the Company, but such
agent shall not have any liability to the Company in the event such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Notes.
11. Notices. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid),
telex or facsimile. Communications to the Agents will be sent, in the case of
Donaldson, Lufkin & Jenrette Securities Corporation, to 277 Park Avenue, New
York, New York 10172, facsimile: (212) 892-8244, attention: Roger Thomson;
BancAmerica Securities, Inc., 40 East 52nd Street, 6th Floor, New York, New
York, facsimile: (212) 836-5127; attention: Elizabeth Birdwell; Banque
Paribas, 787 7th Avenue, New York, New York, facsimile: (212) 841-3561;
attention: Janet Strickland; Chase Securities Inc., 270 Park Avenue, New York,
New York 10017, facsimile:(212) 834-6170); attention: Robert L. Taylor;
Citicorp Securities, Inc., 399 Park Avenue, 7th Floor, New York, New York
10043, facsimile:(212) 291-3910; attention: MTN Desk Head; Credit Lyonnais
Securities (USA) Inc., 1301 6th Avenue, 17th Floor, New
30
York, New York 10019, facsimile: (212) 261-3575; attention: Debt Capital
Markets Syndicate; Deutsche Morgan Grenfell, Inc., 31 West 52nd Street, 3rd
Floor, New York, New York 10019, facsimile: (212) 469-7875; attention: Debt
Capital Markets Syndicate; First Chicago Capital Markets, Inc., One First
National Plaza, Mail Suite 0595, Chicago, Illinois 60670, facsimile: (312)
732-7954; attention: Medium Term Note Desk; NationsBanc Capital Markets, Inc.,
NC1-007-07-01, 100 North Tryon Street, Charlotte, North Carolina 28255,
facsimile: (704) 388-9939; attention: MTN Product Manager; Societe Generale
Securities Corporation, 1221 Avenue of the Americas, 6th Floor, New York, New
York 10020, facsimile: (212) 278-5099; attention: John Kelly; UBS Securities
LLC, 299 Park Avenue, 26th Floor, New York, New York 10171, facsimile: (212)
821-3667; attention: Patricia Nunes; and, if sent to the Company, to 277 Park
Avenue, New York, New York 10172; facsimile: (212) 892-4670; attention: Charles
Hendrickson, Senior Vice President and Treasurer.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any
day which is not a Saturday or Sunday or legal holiday or a day on which banks
in New York City are required or authorized by law, regulation or executive
order to close.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be signed
in counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
31
If the foregoing is in accordance with your understanding, please
sign and return to us 15 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By: /s/ Charles J. Hendrickson
-------------------------------------
Name: Charles J. Hendrickson
Title: Senior Vice President/Treasurer
Accepted in New York, New York, as of the date first above written:
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By: /s/ Roger Thomson
---------------------------------
Name: Roger Thomson
Title: Senior Vice President
BANCAMERICA SECURITIES, INC.
By: /s/ John Mulry
---------------------------------
Name: John Mulry
Title: Managing Director
BANQUE PARIBAS
By: /s/ John Powers
---------------------------------
Name: John Powers
Title: Authorized Signatory
32
CHASE SECURITIES INC.
By: /s/ Robert L. Taylor
---------------------------------
Name: Robert L. Taylor
Title: Managing Director
CITICORP SECURITIES, INC.
By: /s/ J. Darrell Thomas
---------------------------------
Name: J. Darrell Thomas
Title: Managing Director
CREDIT LYONNAIS SECURITIES (USA) INC.
By: /s/ Henry Juan
---------------------------------
Name: Henry Juan
Title: Managing Director
DEUTSCHE MORGAN GRENFELL
By: /s/ Gregory B. Williams
---------------------------------
Name: Gregory B. Williams
Title: Director
FIRST CHICAGO CAPITAL MARKETS INC.
By: /s/ Raymond Neihengen
---------------------------------
Name: Raymond Neihengen
Title: Managing Director
33
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Lynn T. McConnell
---------------------------------
Name: Lynn T. McConnell
Title: Senior Vice President & Director
SOCIETE GENERALE SECURITIES CORPORATION
By: /s/ John L. Kelly
---------------------------------
Name: John L. Kelly
Title: Managing Director
UBS SECURITIES LLC
By: /s/ Richard M. Messina
---------------------------------
Name: Richard M. Messina
Title: Director
34
EXHIBIT A
[Principal Amount]
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
______________ __, 199_
DONALDSON, LUFKIN & JENRETTE, INC.
277 Park Avenue
New York, New York 10172
Attention:
RE: Distribution Agreement dated as of September 3, 1997
(the "Distribution Agreement")
The undersigned agrees to purchase Medium-Term notes having the following
terms:
DUAL
FLOATING RATE FIXED RATE AMORTIZING CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
- ---------- ------------- ---------- ---------- -------- --------------
Issue (Title): Interest Rate Basis Interest Category: Amortization Face Amount Index Currency:
____ Notes or Bases: [ ] Fixed Rate Schedule Currency:
Due ____ Security Currency Base Rate:
If LIBOR: [ ] Zero-Coupon Face Amount:
[ ] LIBOR Reuters Security
[ ] LIBOR Telerate
Registered Principle Index Maturity: Interest Rate: ___% Optional Payment Determination
Amount: per annum Currency: Agent:
Type of Global Index Currency: Designated
Security: Exchange Rate:
Registered Holder: Spread:___% Option Election
[ ] Cede & Co. [ ] plus Date(s):
[ ] other [ ] minus
Original Issue Date: Spread Option Value
Multiplier:___% Calculation Agent:
Initial Interest Rate:
Specified Payment Initial Interest Reset
Currency: Date:
[ ] interest: _____
[ ] principal: _____
A-1
DUAL
FLOATING RATE FIXED RATE AMORTIZING CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
- ---------- ------------- ---------- ---------- -------- --------------
Authorized Interest Reset
Denomination: Date(s):
[ ] $1,000 and
integral multiple
thereof
[ ] other:
Minimum
Denominations:___
Additional
Increments:___
Maturity Date: Maximum Interest
Rate: %
Interest Payments Minimum Interest
Date(s): Rate: %
Subject to Interest Category:
Redemption Prior to [ ] Regular Floating
Maturity Date Rate Note
[ ] no [ ] Floating
[ ] yes Rate/Fixed Rate
Initial Redemption Note
Date: Fixed Rate
Initial Redemption Commencement
Percentage:___% Date:
Annual Fixed Rate
Redemption Interest: ___%
Percentage [ ] Inverse Floating
Reduction: ___ % Rate Note
Fixed Interest Rate:
[ ] Original Issue
Discount Note
Issue Price: ___%
Optional Repayment
Date(s):
Original Issue
Discount Note
[ ] no
[ ] yes
Issue Price: ___%
Exchange Rate
Agent:
Other Provisions:
[ ] no
[ ] yes
Addendums:
[ ] no
[ ] yes
Number of
Addendums:
A-2
[The certificate referred to in Section 6(e) of the Distribution Agreement and
the opinions referred to in Sections 6(b) and 6(c) of the Distribution
Agreement will be required.]
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11, 12 and 15
of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if
set forth in full herein. Additionally, the undersigned agrees to comply with
all applicable securities laws or regulations of any jurisdiction (including
without limitation state securities and Blue Sky laws).
This Agreement is subject to termination in our absolute discretion on the
terms incorporated by reference herein. If this Agreement is so terminated, the
provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
[NAME OF AGENT(S)]
By:
---------------------------------
Name:
Title:
Accepted:
DONALDSON, LUFKIN & JENRETTE, INC.
By:
----------------------------------
Name:
Title:
A-3
EXHIBIT B
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes (the "Notes"), are to be offered on a
continuous basis by Donaldson, Lufkin & Jenrette, Inc. (the "Company"). Each
of Donaldson, Lufkin & Jenrette Securities Corporation, BancAmerica
Securities, Inc., Banque Paribas, Chase Securities Inc., Citicorp Securities,
Inc., Credit Lyonnais Securities (USA) Inc., Deutsche Morgan Grenfell Inc.,
First Chicago Capital Markets, Inc., NationsBanc Capital Markets, Inc.,
Societe Generale Securities Corporation and UBS Securities LLC (each, an
"Agent") has agreed to solicit offers to purchase the Notes in registered
form. The Notes are being sold pursuant to a Distribution Agreement dated as
of September 3, 1997 (the "Agreement") between the Company and the Agents. In
the Agreement, each Agent has agreed to use its reasonable efforts to solicit
purchases of the Notes. Each Agent, as principal, may purchase Notes for its
own account and if it does so, the Company and such Agent will enter into a
terms agreement (each, a "Terms Agreement"), as contemplated by the Agreement.
The Notes will be issued under an Indenture dated as of September 3,
1997 (the "Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Chase Manhattan Bank (the "Bank") will be the
Registrar, Calculation Agent, Authenticating Agent and Paying Agent for the
Notes, and will perform the duties specified herein. Each Note will bear
interest at either a fixed rate (the "Fixed Rate Notes"), or a floating rate
(the "Floating Rate Notes"). The Notes will be issued in U.S. dollars or other
currencies, currency units or composite currencies (the "Specified Currency").
Each Note will be represented by either a Global Security (as defined below)
delivered to the Bank, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a
certificate issued in definitive form delivered to the holder thereof or a
person designated by such holder (a "Certificated Note"). Certificated Notes
will not be exchangeable for Book-Entry Notes, and Book-Entry Notes will not
be exchangeable for and will not otherwise be issuable as Certificated Notes
except in limited circumstances.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof as they may subsequently be amended as
the result of changes in DTC's operating procedures, and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Unless otherwise defined herein, terms defined in the
Indenture or the Notes shall be used herein as therein defined.
B-1
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Bank will perform
the custodial, document control and administrative functions described below,
in accordance with its respective obligations under a Letter of Representation
from the Company and the Bank to DTC, dated as of the date of the Agreement
(the "Letter of Representation"), and a Medium-Term Note Certificate Agreement
between the Bank and DTC, dated as of March 10, 1989 (such agreement may be
superseded at a future date by a Medium-Term Note Certificate Agreement
between the Bank and DTC dated as of December 2, 1988 as a matter of
administrative convenience), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons (a
"Global Security") representing up to U.S.
$200,000,000 principal amount (or, if the Specified
Currency is other than U.S. dollars, the equivalent
thereof in such Specified Currency) of all such
Notes that have the same Purchase Price, Settlement
Date, Maturity Date, redemption or repayment
provisions, Interest Payment Date(s), Original Issue
Date, original issue discount provisions (if any),
and, in the case of Fixed Rate Notes, Interest Rate,
modified payment upon redemption, repayment or
acceleration (if any), amortization schedule (if
any) or, in the case of Floating Rate Notes, Initial
Interest Rate, Interest Payment Period, Calculation
Agent, Interest Rate Basis, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or Spread
Multiplier (if any), Alternate Rate Event Spread (if
any), Minimum Interest Rate (if any) and Maximum
Interest Rate (if any), Index currency (if any) and,
in each case, any other relevant terms (collectively
"Terms"). Each Global Security will be dated and
issued as of the date of its authentication by the
Bank. Each Global Security will bear an "Interest
Accrual Date," which will be (i) with respect to any
Global Security (or any portion thereof) issued on
any date of settlement, its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange
of a Global Security, or in lieu of a destroyed,
lost or stolen Global Security, the most recent
Interest Payment Date to which interest had 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.
B-2
The Company has arranged with the CUSIP Numbers
Service Bureau of Standard & Poor's Corporation
(the "CUSIP Service Bureau") for the reservation of
a series of approximately 900 CUSIP numbers
(including tranche numbers) for assignment to the
Global Securities representing the Book-Entry
Notes. The Company has obtained from the CUSIP
Service Bureau a written list of each series of
reserved CUSIP numbers and has delivered to the
Bank and DTC the written list of 900 CUSIP numbers
of such series. The Bank 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 Bank has assigned to Global Securities. At
any time when fewer than 100 of the reserved CUSIP
numbers of either series remain unassigned to
Global Securities, the Bank shall so advise the
Company 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 a list of
such additional CUSIP numbers to the Bank and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in
DTC with respect to such Book-Entry Note (the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such beneficial owner in such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Book-Entry Note.
Exchanges: The Bank 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 Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date, (ii) a date, occurring at least thirty days
after such written notice is delivered and at least
thirty days before the next Interest Payment Date
for
B-3
such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP
number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will
send to its Participants (including the Bank) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to the
specified exchange date, the Bank 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 Bank 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 canceled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed U.S.
$200,000,000 (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in
such Specified Currency) in aggregate principal
amount, one Global Security will be authenticated
and issued to represent each U.S. $200,000,000
principal amount (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in
such Specified Currency) of the exchanged Global
Security and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine
months or more from its date of issue.
Currency: Book-Entry Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Notice of
Redemption: The Bank will give notice to DTC prior to each
redemption date or repayment date (as specified in
the Note), if any, at the time and in the manner
set forth in the Letter of Representation.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Book-Entry Notes will be issued in
denominations of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable
Pricing Supplement) or any amount in excess thereof
which is an integral multiple of $1,000 (or, if the
Specified Currency is other than U.S. dollars,
integral multiples of such minimum denomination
thereof specified in the applicable Pricing
Supplement).
B-4
Global Securities will be denominated in principal
amounts not in excess of U.S. $200,000,000 (or, if
the Specified Currency is other than U.S. dollars,
the equivalent thereof in such Specified Currency).
If one or more Book-Entry Notes having an aggregate
principal amount in excess of U.S. $200,000,000 (or,
if the Specified Currency is other than U.S.
dollars, the equivalent thereof in 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
U.S. $200,000,000 principal amount (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in 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. Unless otherwise specified in the
applicable Pricing Supplement, interest on each
Book-Entry Note will accrue from the Interest
Accrual Date of the Global Security representing
such Book-Entry Note. Each payment of interest on a
Book-Entry Note will include interest accrued from
and including the immediately preceding Interest
Payment Date in respect of which interest has been
paid or duly made available for payment (or from and
including the date of issue, if no interest has been
paid with respect to such Book-Entry Note) to but
excluding the related Interest Payment Date or the
Maturity Date, as the case may be. Interest payable
at the maturity or upon 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.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment
Date.
Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
Interest Payment Dates for Fixed Rate Book-Entry
Notes will be June 15 and December 15 of each year;
provided that, in addition to other amounts due and
payable on any Maturity Date, interest accrued from
and including the immediately preceding Interest
Payment Date shall be paid on such Maturity Date. In
B-5
the event that any Interest Payment Date or
Maturity Date for a Fixed Rate Book-Entry Note is
not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the
period from and after such Interest Payment Date or
Maturity Date to such next succeeding Business Day.
The first payment of interest on any Fixed Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Record
Date.
Floating Rate Book-Entry Notes. Except as provided
in the applicable Pricing Supplement, interest will
be payable in the case of Floating Rate Book-Entry
Notes which reset (i) daily, weekly or monthly, on
a Business Day that occurs in each month or that
occurs in each third month, as specified in the
applicable Pricing Supplement; (ii) quarterly, on a
Business Day that occurs in each third month, as
specified in the applicable Pricing Supplement;
(iii) semi-annually, on a Business Day that occurs
in each of two months of each year, as specified in
the applicable Pricing Supplement; and (iv)
annually, on a Business Day that occurs in one
month of each year, as specified in the applicable
Pricing Supplement (each, an "Interest Payment
Date"), and, in each case, on the Maturity Date. If
an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is
not a Business Day, such Interest Payment Date will
be the next succeeding Business Day and no interest
shall accrue for the period from and after such
Interest Payment Date, except that if such Note is
a LIBOR Note and such Business Day falls in the
next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day. In the case of a Floating Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Notice of Interest Payment and Record Dates. On the
first Business Day of January, April, July and
October of each year, the Bank will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Book-Entry Notes during the three-month period
beginning on such first Business Day.
Calculation of
Interest: Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months.
B-6
Floating Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Book-Entry Notes
will be determined as set forth in the form of such
Notes. Interest on Floating Rate Book-Entry Notes
will be calculated on the basis of actual days
elapsed and a year of 360 days except that in the
case of Treasury Rate Notes, interest will be
calculated on the basis of the actual number of
days in the year.
Payments of Principal
and Interest: Payments of Interest. Promptly after each Record
Date, the Bank 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 other
than an Amortizing Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption
or repayment date) and the total of such amounts.
DTC will confirm the amount payable on each such
Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. In the case of
Amortizing Notes, the Bank will provide separate
written notice to DTC prior to each Interest Payment
Date at the time and in the manner set forth in the
Letter of Representation. The Company will pay to
the Bank, as paying agent, the total amount of
interest due on such Interest Payment Date (and, in
the case of an Amortizing Note, principal and
interest) (other than at maturity), and the Bank
will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment."
Payments at Maturity or Upon Redemption or
Repayment. On or about the first Business Day of
each month, the Bank will deliver to the Company
and DTC a written list of principal and interest to
be paid on each Global Security other than an
Amortizing Note maturing either at maturity or on a
redemption or repayment date in the following
month. The Company and DTC will confirm the amounts
of such principal and interest payments with
respect to each such Global Security on or about
the fifth Business Day preceding the Maturity Date
or redemption or repayment date of such Global
Security. In the case of Amortizing Notes, the Bank
will provide separate written notice to DTC prior
to the Maturity Date and any redemption or
repayment date, as the case may be, at the times
and in the manner set forth in the Letter of
Representation. The Company will pay to the Bank,
as the paying agent, the principal amount of such
Global Security, together with interest due at such
Maturity Date or redemption or repayment date. The
Bank will pay such amounts to DTC at the times and
in the manner set forth below under "Manner of
Payment." If any Maturity Date or redemption or
repayment date of a Global Security representing
B-7
Book-Entry Notes is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day with respect to such
Book-Entry Note. No interest shall accrue for the
period from and after the Maturity Date or
redemption or repayment date to such next
succeeding Business Day. Promptly after payment to
DTC of the principal and interest due on the
Maturity Date or redemption or repayment date of
such Global Security, the Bank will cancel such
Global Security in accordance with the terms of the
Indenture and deliver it to the Company with a
certificate of cancellation.
Manner of Payment. Payments on Global Securities
denominated in U.S. dollars will be made in the
manner described below. Payments on Global
Securities denominated in a Specified Currency
other than U.S. dollars will be made in accordance
with DTC's "Issuing/Paying Agent General Operating
Procedures and Participant Terminal System
Procedures for Medium-Term Notes (MTNs) Including
Deposit Notes and Medium-Term Bank Notes," subject,
further, to the provisions of the Notes. 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 Bank in funds available
for immediate use by the Bank not later than 9:30
A.M. (New York City time) on such date. The Company
will make such payment on such Global Securities by
instructing the Bank to withdraw funds from an
account maintained by the Company at the Bank. The
Company will confirm such instructions in writing
to the Bank. Payment shall be made not later than
10:00 A.M. (New York City time) or as soon
thereafter as practicable, on each Maturity Date or
redemption or repayment date or, if either such
date is not a Business Day, as soon as possible
thereafter, the Bank will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal
(together with interest thereon) due on Global
Securities on any Maturity Date or redemption or
repayment date. On each Interest Payment Date or,
if any such date is not a Business Day, as soon as
possible thereafter, interest payments and, in the
case of Amortizing Notes, interest and principal
payments shall be made to DTC in same day funds in
accordance with existing arrangements between the
Bank and DTC. Thereafter on each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded
in the book-entry system maintained by DTC. Neither
the Company nor the Bank shall have any
responsibility or liability for the payment by DTC
B-8
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 directly to the
beneficial owner of such Note.
Preparation of
Pricing Supplement: If any order to purchase any Book-Entry Notes is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424 under the Securities Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
request by the close of business on the following
Business Day. The relevant Agent will cause such
Pricing Supplement to be delivered to the purchaser
of the Note. In each instance that a Pricing
Supplement is prepared, the Agents receiving such
Pricing Supplement will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by
the Company will be settled on the third Business
Day pursuant to the timetable for settlement set
forth below unless the Company and the purchaser
agree to settlement on another day, which shall be
no earlier than the next Business Day.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent
shall be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
B-9
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
is an Amortizing Note and, if so, the
amortization schedule, or, in the case of
a Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at such
time), Interest Payment Dates, Interest
Payment Period, Calculation Agent,
Interest Rate Basis, Index Maturity,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any).
4. Redemption or repayment provisions, if
any.
5. Settlement date and time.
6. Price.
7. The Specified Currency.
8. Agent's commission, if any, determined
as provided in the Agreement.
9. Whether the Note is an Indexed Note, and
if it is an Indexed Note, the Indexed
Currency, the Currency Interest Rate Basis
and the Determination Agent.
10. Whether the Note is a Dual Currency
Note, and if it is a Dual Currency Note,
the Face Amount Currency, the Optional
Payment Currency, the Designated Exchange
Rate, the Option Election Dates and the
Option Value Calculation Agent.
11. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
12. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and if so, the Final Maturity Date of
such Note.
13. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and, if
so, the Issue Price).
B-10
14. Any other applicable Terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in Settlement Procedure "A" above. The Bank
will then assign a CUSIP number to the Global
Security representing such Note and will notify the
Company and the Agent of such CUSIP number by
telephone as soon as practicable.
C. The Bank will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the relevant Agent and Standard & Poor's
Corporation:
1. The information set forth in Settlement
Procedure "A."
2. The Initial Interest Payment Date for
such Note, the number of days by which
such date succeeds the related DTC Record
Date (which in the case of Floating Rate
Notes which reset daily or weekly, shall
be the date five calendar days immediately
preceding the applicable Interest Payment
Date and, in the case of all other Notes,
shall be the Record Date as defined in the
Note) and, if known, the amount of
interest payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
5. Whether such Note is an Amortizing Note
(by an appropriate notation in the
comments field of DTC's Participant
Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agents
and the Bank.
D. The Bank will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to the Bank's
participant account at DTC.
B-11
F. The Bank will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Bank's participant account and credit such Note to
the relevant Agent's participant account and (ii)
debit such Agent's settlement account and credit
the Bank's settlement account for an amount equal
to the price of such Note less such Agent's
commission, if any. The entry of such a deliver
order shall constitute a representation and
warranty by the Bank to DTC that (a) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (b) the Bank is
holding such Global Security pursuant to the Medium
Term Note Certificate Agreement between the Bank
and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note to
the participant accounts of the Participants with
respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of such Agent for an amount
equal to the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
I. With respect to Notes denominated in U.S.
dollars, the Bank will credit to the U.S. dollar
account of the Company maintained at a bank located
in New York City (or with respect to Notes payable
in a Specified Currency other than U.S. dollars, to
a bank notified to such Agent from time to time in
writing, which bank shall be located outside the
United Kingdom in the case of Notes payable in a
Specified Currency other than pounds sterling and
which mature not later than five years from and
including the date of issue thereof), notified to
the Bank from time to time in writing, in funds
available for immediate use in the amount
transferred to the Bank, in accordance with
Settlement Procedure "F."
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Quarterly, the Bank will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
B-12
Indenture and setting forth a brief description of
any sales of which the Company has advised the Bank
but which have not yet been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes to or
through an Agent for settlement on the first
Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above shall be
completed as soon as possible but not later than
the respective times (New York City time) set forth
below:
Settlement Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A,"
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon
and 2:00 P.M., respectively, on the first Business
Day after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedure
"B" and "C" shall be completed as soon as such rate
has been determined but no later than 12 Noon and
2:00 P.M., respectively, on the second Business Day
before the settlement date. Settlement Procedure
"H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date. If
settlement of a Book-Entry Note is rescheduled or
canceled, the Bank, after receiving notice from the
Company or the Agent, 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 Bank fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F," the Bank may deliver
to DTC, through DTC's Participant Terminal System,
as soon as practicable a withdrawal message
instructing DTC to debit such Note to
B-13
the Bank's participant account, provided that the
Bank's participant account contains a principal
amount of the Global Security representing such
Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes
represented by a Global Security, the Bank will
mark such Global Security "canceled," make
appropriate entries in the Bank'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 Bank will exchange such Global Security for two
Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the relevant Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G,"
respectively. Thereafter, the Bank 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
Bank will provide, in accordance with Settlement
Procedures "D" and "F," for the authentication and
issuance of a Global Security representing the
Book-Entry Notes to be represented by such Global
Security and will make appropriate entries in its
records.
Bank Not to Risk
Funds: Nothing herein shall be deemed to require the Bank
to risk or expend its own funds in connection with
any payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all parties
that payments made by the Bank to the Company, the
Agents, DTC or any
B-14
holders of Notes shall be made only to the extent
that funds are provided to the Bank for such
purpose.
B-15
PART II: ADMINISTRATIVE PROCEDURES FOR
CERTIFICATED NOTES
The Bank will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the Bank. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to any Certificated
Note (or any portion thereof) issued on any date of
settlement, such date of settlement and (ii) with
respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Bank.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but
different denominations without service charge.
Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine
months or more from its date of issue.
Currency: Certificated Notes will be denominated in U.S.
dollars unless otherwise specified in the applicable
Pricing Supplement.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Certificated Notes will be issued in
principal amounts of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable
Pricing Supplement), or any amount in excess thereof
which is an integral multiple of $1,000 (or, if the
Specified Currency is other than U.S. dollars,
integral multiples of such minimum denomination
thereof specified in the applicable Pricing
Supplement).
Interest: General. Interest on each Certificated Note will
accrue from the Original Issue Date of such Note for
the first interest period and from the most recent
date to which interest has been paid for all
subsequent interest periods. Unless otherwise
specified in the applicable Pricing Supplement,
B-16
each payment of interest on a Certificated Note
will include interest accrued from and including
the immediately preceding Interest Payment Date to
but excluding the related Interest Payment Date or
the Maturity Date, as the case may be.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business
Day) immediately preceding such Interest Payment
Date.
Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
Interest Payment Dates for Fixed Rate Certificated
Notes will be made semiannually on June 15 and
December 15 of each year; provided that, in
addition to other amounts due and payable on any
Maturity Date, interest accrued from and including
the immediately preceding Interest Payment Date
shall be paid on such Maturity Date. In the event
that any Interest Payment Date or Maturity Date for
a Fixed Rate Certificated Note is not a Business
Day, the payment due on such day shall be made on
the next succeeding Business Day, and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date or Maturity
Date to such next succeeding Business Day. The
first payment of interest on any Fixed Rate
Certificated Note issued between a Record Date and
an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding
Record Date.
Floating Rate Certificated Notes. Except as
provided in the applicable Pricing Supplement,
interest will be payable in the case of Floating
Rate Certificated Notes which reset (i) daily,
weekly or monthly, on a Business Day that occurs in
each month or that occurs in each third month, as
specified in the applicable Pricing Supplement;
(ii) quarterly, on a Business Day that occurs in
each third month, as specified in the applicable
Pricing Supplement; (iii) semi-annually, on a
Business Day that occurs in each of two months of
each year, as specified in the applicable Pricing
Supplement; and (iv) annually, on a Business Day
that occurs in one month of each year, as specified
in the applicable Pricing Supplement (each, an
"Interest Payment Date"), and, in each case, on the
Maturity Date. If an Interest Payment Date for
Floating Rate Certificated Notes would otherwise be
a day that is not a Business Day, such Interest
Payment Date will be the next succeeding Business
Day and no interest shall accrue for the period
from and after such Interest Payment Date, except
that if such Note is a LIBOR Note and such Business
Day falls in the next succeeding calendar month,
such Interest Payment Date will be the immediately
preceding Business Day. In the case of a Floating
Rate
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Certificated Note issued between a Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Calculation of
Interest: Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Certificated Notes
will be determined as set forth in the form of such
Notes. Interest on Floating Rate Certificated Notes
will be calculated on the basis of actual days
elapsed and a year of 360 days except that in the
case of Treasury Rate Notes, interest will be
calculated on the basis of the actual number of
days in the year.
Payments of
Principal
and Interest: Payments on Certificated Notes denominated in U.S.
dollars will be made in the manner described below.
Payments on Certificated Notes denominated in a
Specified Currency other than U.S. dollars will be
made in the manner described below, except as
otherwise provided in the Notes. The Bank will pay
the principal amount of each Certificated Note at
maturity or upon redemption or repayment upon
presentation and surrender of such Note to the Bank.
Such payment, together with payment of interest due
at maturity or upon redemption or repayment of such
Note, will be made in funds available for immediate
use by the Bank and in turn by the holder of such
Note. Certificated Notes presented for payment to
the Bank at maturity or upon redemption or repayment
will be canceled by the Bank and delivered to the
Company with a certificate of cancellation. All
interest payments on a Certificated Note (other than
interest due at maturity or upon redemption or
repayment) will be made by check drawn on the Bank
(or another person appointed by the Bank) and mailed
by the Bank to the person entitled thereto as
provided in such Note and the Indenture; provided,
however, that the holder of U.S. $5,000,000 (or, if
the Specified Currency is other than U.S. dollars,
the equivalent thereof in such Specified Currency)
or more in aggregate principal amount of
Certificated Notes (having identical terms and
provisions) will be entitled to receive payments of
interest by wire transfer of immediately available
funds to an account maintained by the holder within
the United States. Following each Record Date, the
Bank will furnish the Company with a
B-18
list of interest payments to be made on the following
Interest Payment Date for each Certificated Note
and in total for all Certificated Notes. Interest
at maturity or upon redemption or repayment will be
payable to the person to whom the payment of
principal is payable. The Bank will provide monthly
to the Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing or to be redeemed in
the next month. The Bank will be responsible for
withholding taxes on interest paid on Certificated
Notes as required by applicable law. If the
Maturity Date or redemption or repayment date of a
Certificated Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such payment for the period from and
after such Interest Payment Date, Maturity Date or
redemption or repayment date, as the case may be.
Preparation of
Pricing
Supplement: If any order to purchase a Certificated Note is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424 under the Securities Act and
will deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
request by the close of business on the following
Business Day. The relevant Agent will cause such
Pricing Supplement to be delivered to the purchaser
of the Note. In each instance that a Pricing
Supplement is prepared, the Agents receiving such
Pricing Supplement will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such
Agent's delivery of such Note against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note. All offers
accepted by the Company will be settled on or before
the third Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement
set forth below, unless the Company and the
purchaser agree to settlement on another date.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company to or through
an Agent shall be as follows:
B-19
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such Note
is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, the applicability
of Annual Interest Payments and whether
such Note is an Amortizing Note and, if so,
the amortization schedule, or, in the case
of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such
time), Interest Payment Dates, Interest
Payment Period, Calculation Agent, Interest
Rate Basis, Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any), and the Alternate Rate Event
Spread (if any).
7. Redemption or repayment provisions, if
any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined
as provided in the Agreement.
11. Specified Currency.
12. Denominations.
B-20
13. Whether the Note is an Indexed Note,
and if it is an Indexed Note, the Indexed
Currency, the Currency Interest Rate Basis
and the Determination Agent.
14. Whether the Note is a Dual Currency
Note, and if it is a Dual Currency Note,
the Face Amount Currency, the Optional
Payment Currency, the Designated Exchange
Rate, the Option Election Dates and the
Option Value Calculation Agent.
15. If applicable, wire transfer
instructions, including name of banking
institution where transfer is to be made
and account number.
16. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
17. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
18. Whether the Note is an OID Note, and if
it is an OID Note, the total amount of OID,
the yield to maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration (and, if
so, the Issue Price).
19. Any other applicable terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth
in Settlement Procedure "A" above.
C. The Company will have delivered to the Bank a
pre-printed four-ply packet for such Note, which
packet will contain the following documents in forms
that have been approved by the Company, the relevant
Agent and the Bank:
1. Note with customer confirmation.
2. Stub One - For the Bank.
3. Stub Two - For the relevant Agent.
B-21
4. Stub Three - For the Company.
D. The Bank will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such
Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and returning
it to the Bank. Such delivery will be made only
against such acknowledgment of receipt and evidence
that instructions have been given by such Agent for
payment to the U.S. dollar account of the Company
maintained at the Bank, New York, New York (or, with
respect to Notes payable in a Specified Currency
other than U.S. dollars, to an account maintained at
a bank selected by the Company which bank shall be
located outside the United Kingdom in the case of
Notes payable in a Specified Currency other than
pounds sterling that mature not later than five
years from and including the date of issue thereof)
in funds available for immediate use, of an amount
equal to the price of such Note less such Agent's
commission, if any. In the event that the
instructions given by such Agent for payment to the
account of the Company are revoked, the Company will
as promptly as possible wire transfer to the account
of such Agent an amount of immediately available
funds equal to the amount of such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Bank will send Stub Three to the Company by
first-class mail. Periodically, the Bank will also
send to the Company a statement setting forth the
principal amount of the Notes Outstanding as of that
date under the Indenture and setting forth a brief
description of any sales of which the Company has
advised the Bank but which have not yet been
settled.
Settlement Procedures
Timetable: For sales by the Company of Procedures Certificated
Notes to or through an Agent, Settlement Procedures
"A" through "F" set forth above shall be completed
on or before the respective times (New York City
time) set forth below:
Settlement Procedure
B-22
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant
Agent will notify the Company and the Bank by
telephone and return such Note to the Bank. Upon
receipt of such notice, the Company will immediately
wire transfer to the account of such Agent an amount
equal to the amount previously credited thereto in
respect of such Note. Such wire transfer will be
made on the settlement date, if possible, and in any
event not later than the Business Day following the
settlement date. If the failure shall have occurred
for any reason other than a default by such Agent in
the performance of its obligations hereunder and
under the Distribution Agreement with the Company,
then the Company will reimburse such Agent or the
Bank, as appropriate, on an equitable basis for its
loss of the use of the funds during the period when
they were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which such failure occurred, the Bank
will mark such Note "canceled," make appropriate
entries in the Bank's records and send such Note to
the Company.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank
to risk or expend its own funds in connection with
any payments to the Company, the Agents, DTC or any
holders of Notes, it being understood by all parties
that payments made by the Bank to the Company, the
Agents, DTC or any holders of Notes shall be made
only to the extent that funds are provided to the
Bank for such purpose.
B-23
EXHIBIT C
[Letterhead of Purchaser]
_______, 199_
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
This letter sets forth the terms and conditions upon which [name of
Purchaser] (the "Purchaser") proposes to purchase as principal from Donaldson,
Lufkin & Jenrette, Inc. (the "Company") the Medium-Term Notes (the "Purchased
Securities") of the Company described in Schedule I hereto and in the
Company's Prospectus dated June 20, 1997, as supplemented by the Prospectus
Supplement dated August __, 1997 and Pricing Supplement No. [insert number]
relating to the Purchased Securities (collectively, the "Prospectus").
The Company acknowledges that it has entered into a Distribution
Agreement, dated August __, 1997 (the "Distribution Agreement"), with
Donaldson Lufkin & Jenrette Securities Corporation, BancAmerica Securities,
Inc., Banque Paribas, Chase Securities Inc., Citicorp Securities, Inc., Credit
Lyonnais Securities (USA) Inc., Deutsche Morgan Grenfell Inc., First Chicago
Capital Markets, Inc., NationsBanc Capital Markets, Inc., Societe Generale
Securities Corporation and UBS Securities LLC, as agents (the "Agents"),
providing for the sale of its Medium-Term Notes due nine months or more from
date of issue to or through the Agents acting as principal or agent. The
Company represents and warrants to the Purchaser that the representations and
warranties of the Company made in the Distribution Agreement are true and
correct as though made on and as of the date hereof and will be true and
correct on and as of the Time of Delivery; provided, however, that the
following terms have the meanings indicated: (i) "Agent" means the Purchaser;
(ii) "this Agreement" means this letter and (iii) "Notes" means the Purchased
Securities.
The Company and the Purchaser further agree that the following
provisions of the Distribution Agreement shall be incorporated by reference
into and made a part of this letter with respect to the Purchased Securities,
as if the Purchaser were an Agent purchasing Notes as principal pursuant to a
Terms Agreement and this letter were a Terms Agreement (and the Purchaser were
the Agent signatory thereto): (i) Section 4, for so long as the Purchaser
shall be required to deliver a prospectus in connection with the Purchased
Securities; (ii) Section 5; (iii) Section 6; and (iv) Section 7.
Terms used herein without definition have the meanings specified in
the Distribution Agreement.
C-1
Very truly yours,
[NAME OF PURCHASER]
By:
----------------------------------------
Name:
Title:
Agreed and accepted.
DONALDSON, LUFKIN & JENRETTE, INC.
By
--------------------------------
Name:
Title:
C-2
Schedule I
Designation:
Principal Amount:
Issue Price:
Original Issue Date:
Interest rate and
other provisions: As described in the Prospectus.
Purchase Price:
Time of Delivery:
Place of Delivery:
Manner of payment
and delivery: As described in the Administrative Procedures
relating to [Book-Entry] [Certificated] Notes or as
otherwise agreed by the parties.
Other Terms:
C-3