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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 20, 1995
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Dean Foods Company
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(Exact name of registrant as specified in its charter)
Delaware 0-1118 36-0984820
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
3600 N. River Road Franklin Park, IL 60131
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (708) 678-1680
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(Former name of former address, if changed since last report)
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Item 5. Other Events.
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On April 20, 1995, Dean Foods Company (the "Company"), filed a Prospectus
Supplement dated April 20, 1995 to the Prospectus dated April 13, 1995, with the
Securities and Exchange Commission (the "Commission") relating to the offering
from time to time of up to $200,000,000 aggregate principal amount of its Senior
Medium-Term Notes, Series A (the "Notes"). The exhibits listed below in "Item
7. Financial Statements and Exhibits" are filed herewith in connection with the
Company's Registration Statement on Form S-3 (Reg. No. 33-57353), as amended,
originally filed with the Commission on January 19, 1995, which relates to the
Notes.
Item 7. Financial Statements and Exhibits.
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Exhibits
1.3 Distribution Agreement dated April 20, 1995, between Dean Foods Company and
Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc., relating
to $200,000,000 aggregate principal amount of Senior Medium-Term Notes,
Series A.
4.5 Form of Fixed Rate Senior Medium-Term Note, Series A.
4.6 Form of Floating Rate Senior Medium-Term Note, Series A.
12 Calculation of Ratio of Earnings to Fixed Charges.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dean Foods Company
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(Registrant)
Date: May 2, 1995 /s/ Dale I. Hecox
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Treasurer - Principal
Accounting and Financial
Officer
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DEAN FOODS COMPANY
$200,000,000
Senior Medium-Term Notes, Series A
Due from 9 Months to 30 Years from Date of Issue
U.S. DISTRIBUTION AGREEMENT
April 20, 1995
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
Dean Foods Company, a Delaware corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale from time to time
by the Company of up to $200,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) aggregate initial public offering
price of its Senior Medium-Term Notes, Series A, Due from 9 Months to 30 Years
from Date of Issue (the "Notes"). The Notes will be issued under an Indenture
dated as of January 15, 1995 (the "Indenture") between the Company and Bank of
America Illinois, as Trustee (the "Trustee"), and will have the maturities,
interest rates, redemption provisions, if any, and other terms as set forth in
supplements to the Basic Prospectus referred to below.
The Company hereby appoints Morgan Stanley & Co. Incorporated ("Morgan
Stanley") and J.P. Morgan Securities Inc. (individually, an "Agent" and
collectively, the "Agents") as its agents, subject to Sections 2 and 12, for the
purpose of soliciting and receiving offers to purchase Notes from the Company by
others and, on the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, each Agent agrees to
use reasonable efforts to solicit and receive offers to purchase Notes upon
terms acceptable to the Company at such times and in such amounts
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as the Company shall from time to time specify. In addition, any Agent may also
purchase Notes as a principal pursuant to the terms of a terms agreement
relating to such sale (a "Terms Agreement") in accordance with the provisions of
Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including all documents incorporated by
reference therein and the exhibits thereto and all amendments filed on or prior
to the Commencement Date (as hereinafter defined), is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") specifically relating to Notes, as filed, or
transmitted for filing with, the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents and warrants to
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and agrees with each Agent as of the Commencement Date, as of each date on which
an Agent solicits offers to purchase Notes, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent pursuant
to a Terms Agreement), as of each date the Company issues and delivers Notes and
as of each date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or to the knowledge of the
Company threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the
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Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
include and, as amended or supplemented, if applicable, will not include 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 (1) the representations and
warranties set forth in this Section l(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to an Agent furnished to the Company in writing by such Agent expressly
for use therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee and (2) the
representations and warranties set forth in clauses (iii) and (iv) above, when
made as of the Commencement Date or as of any date on which an Agent solicits
offers to purchase Notes or on which the Company accepts an offer to purchase
Notes, shall be deemed not to cover information concerning an offering of
particular Notes to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each "significant subsidiary" (as defined in Regulation S-X
promulgated by the Commission) of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its
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business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(e) Each of this Agreement and any applicable Written Terms Agreement (as
hereinafter defined) has been duly authorized, executed and delivered by the
Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting the enforcement of creditors' rights, (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law), (iii) any requirement that a claim with respect to any Note
denominated in other than U.S. dollars (or a judgment denominated in other than
U.S. dollars in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined in accordance with applicable law,
and (iv) governmental authority to limit, delay or prohibit the making of
payments outside of the United States or in a foreign currency or currency unit;
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and duly paid for by the purchasers thereof, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights, (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law), (iii) any
requirement that a claim with respect to any Note denominated in other than U.S.
dollars (or a judgment denominated in other than U.S. dollars in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a date
determined in accordance with applicable law, and (iv) governmental authority to
limit, delay or prohibit the making of payments outside of the United States or
in a foreign currency or currency unit;
(h) The execution and delivery by the Company of this Agreement, the
Notes, the Indenture and any applicable Written Terms Agreement, and the
performance by the Company of its obligations under this Agreement, the Notes,
the Indenture and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
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of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary which
contravention would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indenture and any applicable Terms Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
(i) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(j) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(k) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
2. Appointment of Agents; Solicitations as Agent;
Purchases as Principal.
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(a) Appointment of Agents. Subject to the terms and conditions stated
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herein, the Company hereby appoints each of the Agents as an agent of the
Company for the purpose of soliciting or receiving offers to purchase the Notes
from the Company by others. The Company may accept offers to purchase Notes
through an agent other than an Agent, provided that (i) the Company and such
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agent shall have executed an agreement with respect to such purchases having
terms and conditions (including, without limitation, commission rates) with
respect to such purchases that are the same as the terms and conditions that
would apply to such purchases under this Agreement if such agent were an Agent
(which may be accomplished by incorporating by reference in such agreement the
terms and conditions of this Agreement), and (ii) the Company shall provide the
Agents with a copy of such agreement promptly following the execution thereof;
provided, further, that the foregoing shall not be construed to prevent the
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Company from selling at any time any Notes (A) in a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a continuous
offering of such Notes or (B) directly to an investor.
(b) Solicitations as Agent. In connection with an Agent's actions as
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agent hereunder, such Agent agrees to use reasonable efforts to solicit offers
to purchase Notes upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one business
day's prior notice from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); provided, however, that if the Registration Statement or Prospectus is
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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 on the Notes
or for a change the Agents deem to be immaterial), no Agent shall be required to
resume soliciting offers to purchase Notes until the Company has delivered such
certificates, opinions and letters in accordance with Sections 5(a), 5(b) and
5(c) as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the sale of
each Note resulting from a solicitation made or an offer to purchase received by
such Agent, a commission in the form of a discount from the purchase price of
such Note equal to the percentage set forth below of the purchase price of such
Note:
<TABLE>
<CAPTION>
Term Commission Rate
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<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to and including 30 years .750%
</TABLE>
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Subject to the last sentence of Section 7, an Agent shall only be entitled
to receive a commission at the time of the delivery of the Notes by the Company
to the purchaser and receipt by the Company of the purchase price therefor.
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in its reasonable
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any offer in whole or in
part. Each Agent shall have the right to reject any offer to purchase Notes
that it considers to be unacceptable, and any such rejection shall not be deemed
a breach of its agreements contained herein. The procedural details relating to
the issue and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(c) Purchases as Principal. Each sale of Notes to an Agent as principal
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shall be made in accordance with the terms of this Agreement. In connection
with each such sale, the Company will enter into a Terms Agreement that will
provide for the sale of such Notes to and the purchase thereof by such Agent.
Each Terms Agreement will take the form of either (i) a written agreement
between such Agent and the Company, which may be substantially in the form of
Exhibit A hereto (a "Written Terms Agreement"), or (ii) an oral agreement
between such Agent and the Company confirmed in writing by such Agent to the
Company and such writing shall contain substantially the same information as a
Written Terms Agreement.
An Agent's commitment to purchase Notes pursuant to a Terms Agreement shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes. Each such Terms Agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from the independent
public accountants of the Company pursuant to Section 4 hereof. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment
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for Notes to be purchased by an Agent pursuant to a Terms Agreement is referred
to herein as a "Settlement Date."
Unless otherwise specified in a Terms Agreement, if you are purchasing
Notes as principal you may resell such Notes to other dealers. Any such sales
may be at a discount, which shall not exceed the amount set forth in the
Prospectus Supplement relating to such Notes.
(d) Administrative Procedures. The Agents and the Company agree to
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perform the respective duties and obligations specifically provided to be
performed in the Senior Medium-Term Notes, Series A Administrative Procedures
(attached hereto as Exhibit B) (the "Administrative Procedures"), as amended
from time to time. The Administrative Procedures may be amended only by written
agreement of the Company and the Agents.
(e) Delivery. The documents required to be delivered by Section 4 of this
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Agreement as a condition precedent to each Agent's obligation to begin
soliciting offers to purchase Notes as an agent of the Company shall be
delivered at the office of Sidley & Austin, counsel for the Agents, not later
than 5:00 p.m., Chicago time, on the date hereof, or at such other time and/or
place as the Agents and the Company may agree upon in writing, but in no event
later than the day prior to the earlier of (i) the date on which the Agents
begin soliciting offers to purchase Notes and (ii) the first date on which the
Company accepts any offer by an Agent to purchase Notes pursuant to a Terms
Agreement. The date of delivery of such documents is referred to herein as the
"Commencement Date."
(f) Obligations Several. The Company acknowledges that the obligations of
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the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
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(a) Prior to the termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to the Agents copies thereof for
their review and will not file any such proposed supplement or amendment to
which the Agents reasonably object; provided, however, that (i) the foregoing
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requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, copies of which filings the Company will cause to be delivered
to the Agents promptly after the transmission thereof for filing with the
Commission, (ii) any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and
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approved by the Agent or Agents offering such Notes and (iii) with respect to
any Prospectus Supplement that only adds any new Agent (as permitted by Section
12 hereof) or removes any existing Agent (in accordance with Section 8 hereof),
the Company shall provide the other Agents with copies of such Prospectus
Supplement at least one business day prior to the transmission thereof for
filing with the Commission. Subject to the foregoing sentence, the Company will
promptly cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise the Agents (i) of the filing of any
amendment or supplement to the Basic Prospectus (except that notice of the
filing of an amendment or supplement to the Basic Prospectus that merely sets
forth the terms or a description of particular Notes shall only be given to the
Agent or Agents offering such Notes), (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act or any
document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is required to
be delivered under the Securities Act, any event occurs or condition exists as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances when
the Prospectus, as then amended or supplemented, is delivered to a purchaser,
not misleading, or if, in the opinion of the Agents or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify the Agents by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by the
Company, the Agents shall forthwith suspend such solicitation and cease using
the Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration
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Statement or Prospectus, as then amended or supplemented, it shall so advise the
Agents promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus, as then amended or
supplemented, reasonably satisfactory in all respects to the Agents, that will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to the Agents in such quantities as they
may reasonably request. If any documents, certificates, opinions and letters
furnished to the Agents pursuant to paragraph (f) below and Sections 5(a), 5(b)
and 5(c) 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 3(b), until the completion of the
distribution of any Notes an Agent may own as principal acquired from the
Company pursuant to a Terms Agreement entered into pursuant to Section 2(c)
hereof has been completed, if any event described above in this paragraph (b)
occurs, the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to such Agent, will supply such amended or
supplemented Prospectus to such Agent in such quantities as it may reasonably
request and shall furnish to such Agent pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters
as it may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security holders and
to the Agents as soon as practicable financial statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a true and
correct copy of the Registration Statement as filed with the Commission,
including exhibits and all amendments thereto, and as many copies of the
Prospectus, any documents
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incorporated by reference therein and any supplements and amendments thereto as
such Agent may reasonably request.
(e) The Company will 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 maintain such qualifications for as long as the Agents
shall reasonably request; provided that in no event shall the Company be
required to qualify as a foreign corporation or obligated to file any general
consent to service of process in order to make the Notes eligible for
registration or qualification in any jurisdiction.
(f) The Company shall furnish to the Agents such relevant documents and
certificates of officers of the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Basic Prospectus, any
amendments or supplements thereto, the Indenture, the Notes, this Agreement, the
Administrative Procedures, any Terms Agreement and the performance by the
Company of its obligations hereunder or thereunder as the Agents may from time
to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated, pay
all expenses incident to the performance of its obligations under this Agreement
and any Terms Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto incurred by the Company, (ii) the preparation, issuance and delivery of
the Notes, (iii) the reasonable fees and disbursements of the Company's counsel
and accountants and of the Trustee, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the preparation of any
Blue Sky Memorandum, (v) the printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and all amendments
thereto and of the Prospectus and any amendments or supplements thereto, (vi)
any fees charged by rating agencies for the rating of the Notes, (vii) the
reasonable fees and disbursements of counsel for the Agents incurred in
connection with the offering and sale of the Notes, including any opinions to be
rendered by such counsel hereunder, and (viii) any
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reasonable out-of-pocket expenses incurred by the Agents; provided that any
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advertising or out-of-pocket expenses incurred by the Agents shall have been
approved in advance in writing by the Company.
(i) Between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without such Agent's
prior consent, offer, sell, contract to sell or otherwise issue any debt
securities of the Company substantially similar to such Notes to be sold
pursuant to such Terms Agreement (other than (i) the Notes that are to be sold
pursuant to such Terms Agreement, (ii) Notes previously agreed to be sold by the
Company and (iii) commercial paper issued in the ordinary course of business),
except as may otherwise be provided in such Terms Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's obligation
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to solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes pursuant to any Terms Agreement and the obligation
of any other purchaser to purchase Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or
in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such offer to
purchase was made, that, in the judgment of the relevant Agent, is material
and adverse and that makes it, in the reasonable judgment of such Agent,
impracticable to market the Notes on the terms and in the manner contemplated
by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, the New York
Stock Exchange, the American Stock
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<PAGE>
Exchange or the National Association of Securities Dealers, Inc., (B)
suspension of trading of any securities of the Company on any exchange or in
any over-the-counter market, (C) declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York State
authorities or (D) any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
relevant Agent, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together with
any other such event, makes it, in the judgment of such Agent impracticable to
market the Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such solicitation or at
the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii)
above, as disclosed to the relevant Agent in writing by the Company prior to
such solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless in
each case described in (ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received:
(i) The opinion, dated as of such date, of Eric A. Blanchard, General
Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus, as then amended or
supplemented, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such
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<PAGE>
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(B) each "significant subsidiary" (as defined in Regulation S-X
promulgated by the Commission) of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, has the corporate power and
authority to own its property and to conduct its business as described in
the Prospectus, as then amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(C) the execution and delivery by the Company of this Agreement,
the Notes, the Indenture and any applicable Terms Agreement, and the
performance by the Company of its obligations under this Agreement, the
Notes, the Indenture and any applicable Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-
laws of the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or, to the best of such counsel's knowledge, any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms Agreement,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Notes or as
required by the NASD;
(D) the statements (1) in the Registration Statement under Item
15, (2) in "Item 3 - Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus and (3) in
"Item 1 - Legal Proceedings" or Part II of the Company's quarterly reports
on Form 10-Q, if any, filed since such annual report, in each case insofar
as such statements constitute summaries of the
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<PAGE>
legal matters, documents and proceedings referred to therein, fairly
present, in all material respects, the information called for with respect
to such legal matters, documents and proceedings and fairly summarize, in
all material respects, the matters referred to therein;
(E) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus, as then amended
or supplemented, and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus, as then amended or supplemented,
or to be filed or incorporated by reference as exhibits to such
Registration Statement that are not described, filed or incorporated as
required; and
(F) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement, as then amended or
supplemented (except for financial statements and the notes thereto or
supporting schedules and other financial or statistical data derived
therefrom contained in the Registration Statement (as then amended or
supplemented) or incorporated therein by reference as to which such counsel
need not express any opinion), complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder.
Such counsel shall also state that based on his participation in
conferences with representatives of the Agents, representatives of the Company,
counsel for the Agents, special counsel for the Company and representatives of
the independent accountants for the Company during which the contents of the
Registration Statement and the Prospectus and related matters were discussed,
his review of certain corporate documents, his understanding of applicable law
and the experience he has gained in his practice thereunder, nothing has come to
his attention that caused him to believe that the Registration Statement (other
than the financial statements and the notes thereto and the supporting schedules
and other financial and statistical data derived therefrom, set forth therein or
incorporated by reference, as to which no advice is given and except for that
part of the Registration Statement that constitutes the Form T-1 referred to
herein, as to which no advice is given), as of its effective date or as of the
date of such opinion, contained or
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<PAGE>
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than the financial
statements and the notes thereto and the supporting schedules and other
financial and statistical data derived therefrom, set forth therein or
incorporated by reference, as to which no advice is given), as of the date of
such opinion, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) The opinion, dated as of such date, of Kirkland & Ellis,
special counsel for the Company, to the effect that:
(A) each of this Agreement and any applicable Written Terms Agreements
has been duly authorized, executed and delivered by the Company;
(B) 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 by the
Trustee, the Indenture constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except that such counsel need not express any opinion as to (i) the effect
of applicable bankruptcy, insolvency, reorganization, fraudulent transfer
and conveyance, moratorium and other similar laws affecting the rights of
creditors' generally, (ii) the effect of rules of law and legal and
equitable principles governing specific performance, injunctive relief,
rights of acceleration and other equitable remedies, regardless of whether
enforceability of any obligations is considered in a proceeding in equity
or at law, (iii) the conflicts of law or choice of law provisions contained
therein to the extent such provisions may be applied by any courts other
than the courts in the State of New York, (iv) remedies available in
respect of violations or breaches by the Company which are determined by a
court to be the proximate result of action taken by any other party which
actions such other party is not entitled to take, (v) any provision which
purports, by implication or otherwise, to state that the failure to
exercise or a delay in exercising rights or remedies will not operate as a
waiver of any such right or remedy, or (vi) any provision which purports or
would operate to render ineffective any waiver or modification not in
writing;
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<PAGE>
(C) the Notes have been duly authorized by the Company and when
the terms thereof have been duly established in accordance with the
Indenture, and when duly completed, executed, authenticated and issued in
accordance with the Indenture and delivered against payment of the agreed
upon consideration by the purchasers in accordance with the terms of the
Distribution Agreement (and any applicable Terms Agreement) will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture and are enforceable against the Company
in accordance with their terms, except such counsel need not express any
opinion as to (i) the effect of applicable bankruptcy, insolvency,
reorganization, fraudulent transfer and conveyance, moratorium and other
similar laws affecting the rights of creditors' generally, (ii) the effect
of rules of law and legal and equitable principles governing specific
performance, injunctive relief, rights of acceleration and other equitable
remedies, regardless of whether enforceability of any obligation is
considered in a proceeding in equity or at law, (iii) the conflicts of law
or choice of law provisions contained therein to the extent such provisions
may be applied by any courts other than the courts in the State of New
York, (iv) remedies available in respect of violations or breaches by the
Company which are determined by a court to be the proximate result of
action taken by any other party which actions such other party in not
entitled to take, (v) any provision which purports, by implication or
otherwise, to state that the failure to exercise or a delay in exercising
rights or remedies will not operate as a waiver of any such right or
remedy, (vi) any provision which purports or would operate to render
ineffective any waiver or modification not in writing, (vii) any
requirement that a claim with respect to any Note denominated in other than
U.S. dollars (or a judgment denominated in other than U.S. dollars in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined in accordance with applicable law or (viii)
any governmental authority to limit, delay or prohibit the making of
payments outside of the United States or in a foreign currency or currency
unit;
(D) the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt Securities,"
"Description of Notes" and "United States Taxation" insofar as such
statements constitute summaries of the legal matters or documents referred
to therein, fairly present in all material respects the information called
for with
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<PAGE>
respect to such legal matters and documents and fairly summarize in
all material respects the matters referred to therein; and
(E) assuming that each document incorporated by reference in the
Registration Statement complied as to form to the requirements of the
Exchange Act, the Registration Statement, as then amended or supplemented,
(other than the financial statements and the notes thereto and the
supporting schedules and other financial and statistical data derived
therefrom, set forth therein or incorporated by reference, as to which such
counsel need not express any opinion and except for that portion of the
Registration Statement that constitutes the Form T-1 referred to herein, as
to which such counsel need not express any opinion), complies as to form in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
Such counsel shall also state that based on their participation in
conferences with representatives of the Agents, representatives of the Company,
counsel for the Agents, counsel for the Company and representatives of the
independent accountants for the Company during which the contents of the
Registration Statements and the Prospectus and related matters were discussed
(the documents incorporated by reference having been prepared without their
involvement), their review of certain corporate documents furnished to them by
the Company, their understanding of applicable law and the experience they have
gained in their practice thereunder, they advise you that nothing has come to
their attention that caused them to believe that the Registration Statement
(other than the financial statements and the notes thereto and the supporting
schedules and other financial and statistical data derived therefrom, set forth
therein or incorporated by reference, as to which no advice is given and except
for that part of the Registration Statement that constitutes the Form T-1
referred to herein, as to which no advise is given), as of its effective date or
as of the date of such opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (other than financial statements and the notes thereto and the
supporting schedules and other financial and statistical data derived therefrom,
set forth therein or incorporated by reference, as to which no advice is given),
as of the date of such opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statement therein, in the light of the circumstances under which they
were made, not misleading.
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<PAGE>
(iii) The opinion, dated as of such date, of Sidley & Austin, counsel
for the Agents, covering the matters in subparagraphs (A), (B), (C) and (D)
(with respect to statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt Securities" and
"Description of Notes") of paragraph (ii), and the last paragraph of paragraph
(b)(ii) above.
For the purpose of expressing the opinions contained in paragraph (ii)(C)
and (iii)(C) above, Kirkland & Ellis and Sidley & Austin, respectively, may
assume that (i) at the time of the issuance, sale and delivery of each Note the
authorization of the Notes will not have been modified or rescinded and there
will not have occurred any change in law affecting the validity, legally binding
character or enforceability of the Notes and (ii) neither the issuance, sale and
delivery of any Note, nor any of the terms of such Note, nor compliance by the
Company with the terms of such Note, will violate the charter or by-laws of the
Company or any applicable law, any agreement or instrument then binding upon the
Company or any restriction imposed by any court or government body having
jurisdiction over the Company. With respect to the last paragraph of paragraphs
(b)(i) and (b)(ii) above, Eric A. Blanchard and Kirkland & Ellis, respectively,
may each state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to the last
paragraph of paragraph (b)(ii) above, Sidley & Austin may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
(but not including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
The opinion of Sidley & Austin described in paragraph (b)(iii) above
shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received a certificate on behalf of the Company, dated the Commencement Date or
such Settlement Date, as the case may be, signed by an officer of the Company to
the effect set forth in subparagraph (a)(iii) above and to the effect that the
representations and warranties of the Company contained herein are true and
correct as of such date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied on or before
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<PAGE>
such date. The officer signing and delivering such certificate may rely upon
the best of his knowledge.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the Company's independent
accountants shall have furnished to the relevant Agents a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to such Agents containing statements and
information of the type ordinarily included in accountant's "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company. (a) Subject to Section
------------------------------------
2(b), each time the Registration Statement or Prospectus is amended or
supplemented in any material respect (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 by the filing of a
supplement which relates solely to the specific terms of any Notes being sold by
the Company), the Company will deliver or cause to be delivered forthwith to
each Agent a certificate signed by an officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospectus as amended
or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of (i) the General Counsel of the Company substantially in the
form set forth in Section 4(b)(i) and (ii) upon request of any Agent, of
Kirkland & Ellis, or other counsel reasonably satisfactory to the Agents,
substantially in the form set forth in Section 4(b)(ii), provided, that such
opinion shall be furnished without request (A) where such amendment or
supplement relates to the Company's Annual Report on Form 10-K or (B) in
connection with any sale by an Agent pursuant to a Terms Agreement. Any such
opinion shall be dated the date of such amendment or supplement, as the case may
be, shall be in a form satisfactory to the Agents and shall be of the same tenor
as the opinion referred to in Section 4(b)(i) or Section 4(b)(ii), as the case
may be, but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such opinion.
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In lieu of any such opinion, counsel last furnishing such an opinion to an Agent
may furnish to each Agent a letter to the effect that such Agent may rely on
such last opinion to the same extent as though it were dated the date of such
letter (except that statements in such last opinion will be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented to the
time of delivery of such letter.)
(c) Subject to Section 2(b), each time the Registration Statement or
the Prospectus is amended or supplemented to set forth amended or supplemental
financial information or such amended or supplemental information is
incorporated by reference in the Prospectus, the Company shall cause its
independent public accountants forthwith to furnish each Agent with a letter,
dated the date of such amendment or supplement, as the case may be, in form
satisfactory to the Agents, of the same tenor as the letter referred to in
Section 4(d), with regard to the amended or supplemental financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Agent or any such controlling person in
connection with investigating or defending any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by such Agent expressly for use therein; provided, however,
-------- -------
that the foregoing indemnity agreement with respect to any Prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Notes, or any person
controlling such Agent, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Notes to such person, and if the Prospectus (as
so amended or supplemented) would have
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<PAGE>
cured the defect giving rise to such losses, claims, damages or liabilities.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information furnished to the Company in writing by such
Agent expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to an actual or potential
conflict of interest between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley or, if Morgan Stanley is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents that are indemnified parties, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No
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<PAGE>
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent that the indemnified party has notified the
indemnifying party of a proceeding as provided under subsection (c) above and
the indemnification provided for in paragraph (a) or (b) of this Section 6 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other hand from the offering of such Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and each Agent
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other hand in connection with the offering of
such Notes shall be deemed to be in the same respective proportions which the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
each Agent in respect thereof. The relative fault of the Company on the one hand
and of each Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by such Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Agent's obligation to contribute pursuant to
this Section 6 shall be several (in the proportion that: (x) the principal
amount of the Notes the sale of which by or through such Agent gave rise to such
losses, claims, damages or liabilities bears to (y) the aggregate principal
amount of the Notes the sale of which by or through any Agent gave rise to such
losses, claims, damages or liabilities) and not joint.
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(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
--- ----
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes referred to in paragraph (d)
above that were offered and sold to the public through such Agent exceeds the
amount of any damages that such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
7. Position of the Agents. In acting under this Agreement and in
----------------------
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold the relevant Agent harmless against any loss, claim, damage
or liability arising from or as a result of such default, but shall only be
required to pay to such Agent the commission it would have received had such
sale been consummated in the event of a willful default by the Company.
8. Termination. This Agreement may be terminated at any time by the
-----------
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require
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termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(b), Section 2(f), the last sentence of
Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 11 and 14 shall survive; provided
--------
that if at the time of termination an offer to purchase Notes has been accepted
by the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the provisions of Sections 2(c), 2(d), 3(a), 3(e), 3(f),
3(g), 3(i), 4 and 5 shall also survive until such delivery has been made.
9. Representations and Indemnities to Survive. The respective
------------------------------------------
indemnity 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 Terms Agreement will remain in full force and
effect, regardless of any termination of this Agreement or any such Terms
Agreement, any investigation made by or on behalf of an Agent or the Company or
any of the officers, directors or controlling persons referred to in Section 6
and delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to Morgan Stanley, will be mailed,
delivered or telefaxed and confirmed to Morgan Stanley at 1251 Avenue of the
Americas, New York, New York 10020, Attention: Manager, Credit Department
(telefax number: 212-703-4575), with a copy to 1221 Avenue of the Americas, New
York, New York 10020, Attention: Managing Director, Debt Syndicate (telefax
number: 212-764-7490) and to J.P. Morgan Securities Inc. at 60 Wall Street, New
York, New York 10260-0060, Attention: Medium-Term Note Desk (telefax number:
212-648-5907), or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at 3600 N. River Road, Franklin Park,
Illinois 60131, Attention: General Counsel (telefax number: 708-671-8744).
11. Successors. This Agreement and any Terms Agreement will inure to
----------
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. 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, without
--------
the consent of any Agent, amend this Agreement to add as a party hereto one or
-25-
<PAGE>
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.
13. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the internal laws of the State of New York.
15. 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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
DEAN FOODS COMPANY
By /s/ Dale I. Hecox
---------------------------------
Title: Treasurer
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
By /s/ Francis J. Oelerich III
-------------------------------
Title: Principal
J.P. MORGAN SECURITIES INC.
By /s/ T. Kelley Millet
-------------------------------
Title: T. Kelley Millet, Managing Director
-26-
<PAGE>
EXHIBIT A
DEAN FOODS COMPANY
SENIOR MEDIUM-TERM NOTES, SERIES A
TERMS AGREEMENT
, 199
---------------------- -
Dean Foods Company
3600 N. River Road
Franklin Park, Illinois 60131
Attention:
Re: Distribution Agreement dated
April __, 1995
(the "Distribution Agreement")
------------------------------
We agree to purchase your Senior Medium-Term Notes, Series A having
the following terms:
(We agree to purchase, severally and not jointly, the principal
amount of Notes set forth below opposite our names:
<TABLE>
<CAPTION>
Principal Amount
Name of Notes
---- ----------------
<S> <C>
Morgan Stanley & Co.
Incorporated
J.P. Morgan Securities Inc.
(Insert syndicate list)/1/
Total . . . . . $
===============
</TABLE>
- ----------------
/1/Delete if the transaction will not be syndicated.
A-1
<PAGE>
The Notes shall have the following terms:
<TABLE>
<CAPTION>
All Notes: Fixed Rate Notes: Floating Rate Notes:
- ------------------- ----------------- --------------------
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability Index maturity:
of modified
Price to public: payment upon Spread:
acceleration:
Settlement date Spread multiplier:
and time: If yes, state
issue price:
Place of
delivery: Amortization
schedule:
Specified Initial interest
currency: rate:
Maturity date: Initial interest
reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield Maximum interest
to maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
</TABLE>
A-2
<PAGE>
The provisions of Sections 1, 2(c) and 2(d) and 3 through 6, 9, 10, 11
and 14 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as may specify, to purchase the Notes which
----------------
such defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
--------
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to and the Company for the purchase of such Notes
-----------------
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Agent or the Company. In
any such case either or the Company shall have the right to
-----------------
postpone the Settlement Date but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.]/2/
This Agreement is subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(h), 6, 9, 11 and 14 of the Distribution Agreement shall survive for
the purposes of this Agreement.
- ----------------
/2/Delete if the transaction will not be syndicated.
A-3
<PAGE>
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: .
---------------------
[NAME OF RELEVANT AGENT(S)]
By
---------------------------------
Title:
Accepted:
DEAN FOODS COMPANY
By
-----------------------
Title:
A-4
<PAGE>
EXHIBIT B
DEAN FOODS COMPANY
SENIOR MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific terms
of the offering of Senior Medium-Term Notes, Series A, (the "Notes"), on
a continuous basis by Dean Foods Company (the "Company") pursuant to the
Distribution Agreement, dated as of April 20, 1995 (the "Distribution
Agreement") among the Company, Morgan Stanley & Co. Incorporated and J.P.
Morgan Securities Inc. (the "Agents"). The Notes will be issued under an
Indenture dated as of January 15, 1995 (the "Indenture") between the Company
and Bank of America Illinois, as trustee (the "Trustee"). In the Distribution
Agreement, the Agents have agreed to use reasonable efforts to solicit
purchases of the Notes, and the administrative procedures explained below
will govern the issuance and settlement of any Notes sold through an Agent,
as agent of the Company. An Agent, as principal, may also purchase Notes
for its own account, and if requested by such Agent, the Company and such
Agent will enter into a terms agreement (a "Terms Agreement"), as contemplated
by the Distribution Agreement. The administrative procedures explained
below will govern the issuance and settlement of any Notes purchased by
an Agent, as principal, unless otherwise specified in the applicable Terms
Agreement.
The Trustee will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for the Notes and will perform the duties specified
herein. Each Note will be represented by either a Global Security (as defined
below) delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certified Note"). Except as set forth in the Indenture,
an owner of a Book-Entry Note will not be entitled to receive a Certificated
Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part
I hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures. Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture, the
B-1
<PAGE>
Notes or any prospectus supplement relating to the Notes shall be used herein
as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated as of April
20, 1995, and a Medium-Term Note Certificate Agreement between the Trustee
and DTC, dated as of December 29, 1988 (the "MTN Certificate Agreement"0,
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. $150,000,000 principal amount of all such
Notes that have the same Original Issue Date, Maturity
Date and other terms. Each Global Security will be dated
and issued as of the date of its authentication by the
Trustee. Each Global Security will bear an "Interest
Accrual Date," which will be (i) with respect to an original
Global Security (or any portion thereof), its Issuance
Date and (ii) with respect to any Global Security (or
any portion thereof) issued subsequently upon exchange
of a Global Security, or in lieu of a destroyed, lost
or stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided
for on the predecessor Global Security (or if no such
payment provision has been made, the Issuance Date of
the predecessor Global Security),
B-2
<PAGE>
regardless of the date of authentication of such
subsequently issued Global Security. Book-Entry Notes
may be payable only in U.S. dollars. No Global Security
will represent any Certified Note.
Denominations: Book-Entry Notes will be issued in principal amounts
of U.S. $100,000 of any amount in excess thereof that
is an integral multiple of U.S. $1,000. Global Securities
will be denominated in principal amounts not in excess
of U.S. $150,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each U.S. $150,000,000
principal amount of such Book-Entry Note or Notes and
an additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities
representing such Book-entry Note or Notes shall be assigned
the same CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted
of Pricing by or on behalf of the Company, the Company will prepare
Supplement: a pricing supplement (a "Pricing Supplement") reflecting
the terms of such Note. The Company (i) will arrange
to file one copy of such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Securities Act and (ii) will,
as soon as possible and in any event not later that the
date on which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
reasonable request.
B-3
<PAGE>
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds
in payment for a Book-Entry Note and the authentication
and issuance of the Global Security representing such
Note shall constitute "settlement" with respect to such
Note. All offers accepted by the Company will be settled
on the fifth Business Day next succeeding the date of
acceptance pursuant to the timetable for settlement set
forth below, unless the Company and the purchaser agree
to settlement on another day, which shall be no earlier
than the next Business Day.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement) shall
be as follows:
A. The relevant Agent will advise the Company by telephone
that such Note is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
Interest Rate and whether such Note will pay interest
annually or semi-annually or, in the case of a
Floating Rate Book-Entry Note, the Initial Interest
Rate (if
B-4
<PAGE>
known at such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent (if
other than Trustee), Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if any) and Maximum
Interest Rate (if any).
4. Redemption or repayment provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission (if any) determined as provided
in the Distribution Agreement.
9. Whether the Note is an Original Issue Discount
Note (an "OID Note"), and if it is an OID Note,
the total amount of OID, the yield to maturity,
the initial accrual period OID and the applicability
of Modified Payment upon Acceleration (and, if
so, the Issue Price).
10. Any other applicable terms.
B. The Company will advise the Trustee 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 Trustee will
then
B-5
<PAGE>
assign a CUSIP number to the Global Security representing
such Note and will notify the Company and the relevant
Agent of such CUSIP number by telephone as soon as
practicable.
C. The Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC, the relevant
Agent and 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).
B-6
<PAGE>
5. The number of participant accounts to be maintained
by the DTC on behalf of the relevant Agent and
the Trustee.
D. The Trustee will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to the Trustee's participant
account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
to (i) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Note
less such Agent's commission (if any). The entry
of such a deliver order shall constitute a representation
and warranty by the Trustee to DTC that (a) the Global
Security representing such Book-Entry Note has been
issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the MTN Certificate
Agreement.
G. Unless the relevant Agent is the end purchaser of
such Note, such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's participant
account and credit such Note to the participants with
respect to such Note and (ii) to debit the settlement
accounts of
B-7
<PAGE>
such Participants and credit the settlement account
of such Agent for an amount equal to the price of
such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee will credit to the account of the Company
maintained at Harris Trust & Savings Bank, Chicago,
Illinois, in immediately available funds the amount
transferred to the Trustee in accordance with Settlement
Procedure "F".
J. Unless the relevant Agent is the end purchaser of
such Note, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional
delivery system or by mailing a written confirmation
to such purchaser.
K. Monthly, the Trustee will send to the Company a statement
setting forth the principal amount of Notes outstanding
as of that date under the Indenture and setting forth
a brief description of any sales of which the Company
has advised the Trustee that have not yet been settled.
B-8
<PAGE>
Settlement For sales by the Company of Book-Entry Notes to or through
Procedures an Agent (unless otherwise specified pursuant to a Terms
Timetable: Agreement) for settlement on the first Business Day after
the sale date, Settlement Procedures "A" through "J" set
forth above shall be completed as soon as possible but
not later than the respective times in New York City set
forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures
"B" and "C" shall be completed as soon as such rate has
been determined but no later than 12:00 noon and 2:00
P.M., respectively, on the first Business Day before
the settlement date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the settlement
date.
B-9
<PAGE>
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee, after receiving notice from the
Company or the relevant 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 If the Trustee fails to enter an SDFS deliver order with
to Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable
a withdrawal message instructing DTC to debit such Note
to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount
of the Global Security representing such Note that is
at least equal to the principal amount to be debited.
If a withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global Security,
the Trustee will mark such Global Security "cancelled",
make appropriate entries in the Trustee's records and
send such cancelled Global Security to the Company. The
CUSIP number assigned to such Global Security shall,
in accordance with the procedures of the CUSIP Service
Bureau of Standard & Poor's Corporation, be cancelled
and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all,
of the Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled immediately
after issuance and the other of which shall represent
the remaining Book-
B-10
<PAGE>
Entry Notes previously represented by the surrendered
Global Security and shall bear the CUSIP number of the
surrendered Global Security.
If purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by
the beneficial purchaser thereof (or a person, including
an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the relevant
Agent may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "F" and "G", respectively.
Thereafter, the Trustee will deliver the withdrawal message
and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then
in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a Global
Security representing the Book-Entry Notes to be represented
by such Global Security and will make appropriate entries
in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of
B-11
<PAGE>
its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be
(i) with respect to an original Certificated Note (or
any portion thereof), its Issuance Date (which will be
the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated Note,
the Issuance Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Preparation If any offer to purchase a Certificated Note is accepted
of Pricing by or on behalf of the Company, the Company will prepare
Supplement: a Pricing Supplement reflecting the terms of such Note.
The Company (i) will arrange to file one copy of such
Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the
Securities Act and (ii) will, as soon as possible and
in any event not later than the date on which such Pricing
Supplement is filed with the Commission, deliver the
number of copies of such Pricing Supplement to the relevant
Agent as such Agent shall reasonably request.
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available funds
in exchange for an authenticated
B-12
<PAGE>
Certificated Note delivered to the relevant Agent and
such Agent's delivery of such Note against receipt of
immediately available funds shall constitute "settlement"
with respect to such Note. All offers accepted by the
Company will be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to the timetable
for settlement set forth below, unless the Company and
the purchaser agree to settlement on another date, which
date shall be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement) shall
be as follows:
A. The relevant Agent will advise the Company by telephone
that such Note is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate and whether such Note will pay
interest annually or semi-annually, or, in the
B-13
<PAGE>
case of a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such time),
Interest Payment Date(s), Interest Payment Period,
Calculation Agent (if other than Trustee), Base
Rate, Index Maturity, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum Interest
Rate (if any) and Maximum Interest Rate (if any).
7. Redemption or repayment provisions (if any).
8. Settlement date and time (Original Issue Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission (if any) determined as provided
in the Distribution Agreement.
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon Acceleration
(and if so, the Issue Price).
15. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
B-14
<PAGE>
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee 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 Trustee:
1. Note with the customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such
Agent will acknowledge receipt of the Note by stamping
or otherwise marking Stub One and returning it to
the Trustee. Such delivery will be made only against
such acknowledgement of receipt and evidence that
instructions have been given by such Agent for payment
to the account of the Company at Harris Trust & Savings
Bank, Chicago, Illinois, or to such other account
as the Company shall have specified to such Agent
and the Trustee, in immediately available funds, of
an amount equal to the price of such Note less such
B-15
<PAGE>
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 is the end purchaser of
such Note, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgement of receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also send
to the Company a statement setting forth the principal
amount of the Notes outstanding as of that date under
the Indenture and setting forth a brief description
of any sales of which the Company has advised the
Trustee that have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement), Settlement Procedures "A" through
"F" set forth above shall be completed on or before the
respective times in New York City set forth below:
B-16
<PAGE>
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
E 5:00 P.M. on settlement date
Failure If a purchaser fails to accept delivery of and make payment
to Settle: for any Certificated Note, the relevant Agent will notify
the Company and the Trustee by telephone and return such
Note to the Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the account
of such Agent an amount equal to the price of such Note
less such Agent's commission in respect of such Note
(if any). Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the failure
shall have occurred for any reason other than a default
by such Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then
the Company will reimburse such Agent or the Trustee,
as appropriate, on an equitable basis for its loss of
the use of the funds during the period when they were
credited to the account of the Company. Immediately upon
receipt of the Certificated Note in respect of which
such failure occurred, the Trustee will mark such Note
"cancelled", make appropriate entries in the Trustee's
records and send such Note to the Company.
B-17
<PAGE>
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Registered CUSIP:__________
No. FXRA-________
Dean Foods Company
Senior Medium-Term Note, Series A
(Fixed Rate)
<TABLE>
<S> <C>
PRINCIPAL AMOUNT AND CURRENCY OR STATED MATURITY DATE:
CURRENCY UNIT:
RECORD DATE(S):
DENOMINATIONS (IF OTHER THAN U.S.
DOLLARS OR THE U.S. DOLLAR REDEMPTION DATE(S):
DENOMINATIONS SET FORTH ON THE
REVERSE): REDEMPTION PERCENTAGE(S):
OPTION TO RECEIVE PAYMENTS IN REDEMPTION DATE(S) (OPTION OF HOLDER):
SPECIFIED
CURRENCY: REDEMPTION PERCENTAGE(S) (OPTION OF
HOLDER):
YES:_____ NO:_____
NOTICE PERIOD:
ISSUE DATE:
ORIGINAL ISSUE DISCOUNT SECURITY:
INTEREST RATE: If applicable, the following will be
completed solely for the purpose of
INTEREST PAYMENT DATE(S): applying the United States federal income
tax original issue discount ("OID") rules:
COMPUTATION PERIOD:
TOTAL AMOUNT OF OID:
DEPOSITARY:
The Depository Trust Company YIELD TO MATURITY:
EXCHANGE RATE AGENT: INITIAL ACCRUAL PERIOD OID:
OTHER PROVISIONS:
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
DEAN FOODS COMPANY, a Delaware corporation (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
herein), for value received, hereby promises to pay to: Cede & Co., or
registered assigns, the principal amount specified above (any currency or
currency unit other than U.S. dollars being hereinafter referred to as a
"Specified Currency") on the Stated Maturity specified above and to pay interest
thereon (computed, unless a different Computation Period is specified above, on
the basis of a 360-day year of twelve 30-day months) from and including the
Issue Date specified above (the "Issue Date") or from and including the most
recent Interest Payment Date to which interest on this Note (or any predecessor
Note) has been paid or duly provided for to but excluding the relevant Interest
Payment Date, on the Interest Payment Date(s) specified above in each year (each
an "Interest Payment Date") and at Maturity, at the rate per annum equal to the
Interest Rate specified above, until the principal hereof is paid or duly made
available for payment; provided, that unless the Holder hereof is entitled to
make, and has made, a Specified Currency Payment Election (as hereinafter
defined) with respect to one or more such payments, the Company will make all
such payments in U.S. dollars in amounts determined as set forth herein. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Holder of this
Note (or one or more predecessor Notes) of record at the close of business on
the Record Date specified above next preceding such Interest Payment Date;
provided, that interest payable at Maturity shall be payable to the same Person
to whom principal on this Note is payable; and provided further, that if the
Issue Date is after a Record Date and less than 15 calendar days before the next
succeeding Interest Payment Date, the first payment of interest shall be payable
on the second Interest Payment Date following the Issue Date to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the Record Date next preceding such second Interest Payment
Date.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Record Date, and may be paid
to the Holder of this Note (or one or more predecessor Notes) of record at the
close of business on a subsequent record date fixed by the Trustee for the
payment of such Defaulted Interest, notice whereof shall be given to Holders not
less than 15 days prior to such subsequent record date. Payment of the principal
of (and premium, if any, on) this Note and, unless otherwise paid as hereinafter
provided, the interest thereon will be made at the office or agency of the
Company in The City of New York, State of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, that payment of the principal of
(and premium, if any) and interest on this Note due at Maturity will be made in
immediately available funds at such office or agency if this Note is presented
in time for the Trustee (or a duly authorized paying agent) to make such
payments in such funds in accordance with its normal procedures; provided
further, that payment of interest may be made at the option of the Company by
check mailed to the Person entitled thereto at such Person's address appearing
in the Security Register; and provided, further, that if this Note is
denominated in a Specified Currency, and the Holder hereof is entitled to make,
and has made, a Specified Currency Payment Election with respect to such
payments, and the Exchange Rate Agent is able to convert such payments as
provided below and the Specified Currency is not unavailable due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, then (i) the payment of interest on this Note will be made in the
Specified Currency (or, if such Specified Currency is not at the time of such
payment legal tender for the payment of public and private debts, in such other
coin or currency of the country which issued such Specified Currency as at the
time of such payment is legal tender for the payment of such debts) by check
drawn on a bank office located outside the United States and mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register and (ii) the payment of principal (and premium, if any) and
interest due at Maturity will be made in such Specified Currency (or, if
applicable, such other coin or currency) by wire transfer of immediately
available funds to an account maintained by the Holder hereof with a bank office
located in the country which issued the Specified Currency upon presentation of
this Note to the Trustee (or a duly authorized paying
-2-
<PAGE>
agent) in time for such wire transfer to be made by the Trustee (or such paying
agent) in accordance with its normal procedures. Notwithstanding the foregoing,
(a) the Depositary, as holder of this Note, shall be entitled to receive
payments of interest by wire transfer of immediately available funds and (b) a
holder of U.S. $10 million (or the equivalent in a Specified Currency) or more
in aggregate principal amount of Notes represented by a certificate and having
the same Interest Payment Date shall be entitled to receive payments of
interest by wire transfer of immediately available funds upon written request
to the Trustee (or paying agent); provided, that such request is received not
later than 25 calendar days prior to the applicable Interest Payment Date.
Unless otherwise specified above, if this Note is denominated in a
Specified Currency, the Holder hereof may elect to receive payments of principal
of (and premium, if any) and interest in such Specified Currency (a "Specified
Currency Payment Election") by delivery of a written request (including, in the
case of an election with respect to payments at Maturity, appropriate wire
transfer instructions) to the Trustee at its principal corporate trust office
referred to above on or prior to the relevant Record Date or the sixteenth day
prior to Maturity, as the case may be. Such request may be in writing (mailed or
hand delivered) or by cable or other form of facsimile transmission. The Holder
may elect to receive payment in the Specified Currency for all principal (and
premium, if any) and interest payments and need not file a separate election for
each payment. Such election shall remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the relevant Record Date or at least
sixteen days prior to Maturity, as the case may be. Additional provisions of
this Note are set forth on the reverse hereof.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
DEAN FOODS COMPANY
DATED:
By:___________________________________
Chairman of the Board and
This is one of the Securities of the Chief Executive Officer
series designated herein referred to
in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS,
as Trustee
By:________________________________ Attest:_______________________________
Authorized Signature Secretary
-3-
<PAGE>
DEAN FOODS COMPANY
Senior Medium-Term Note, Series A
This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issuable in one or more Series,
unlimited in aggregate principal amount except as may be otherwise provided in
respect of the Securities of a particular Series, issued and to be issued under
and pursuant to an Indenture dated as of January 15, 1995 (herein called the
"Indenture"), duly executed and delivered by the Company to Bank of America
Illinois, as Trustee (the "Trustee"), and is one of a Series limited in
aggregate principal amount to $200,000,000 (or if Securities of this Series are
to be Original Issue Discount Securities or are to be denominated in one or more
Specified Currencies, such principal amount as shall result in an aggregate
initial offering price of Securities equivalent to not more than $200,000,000).
The Securities of this Series may be issued from time to time in various
principal amounts and currencies or currency units, may mature at different
times, may bear interest at different rates, may be subject to different
redemption provisions, if any, and may otherwise vary. Reference is hereby made
to the Indenture for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of Securities (including Holders of the Securities of this Series).
The Securities are general, direct, unconditional and unsecured obligations
of the Company and will rank pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
If this Security is designated on the face hereof as an Original Issue
Discount Security, then, notwithstanding anything to the contrary contained in
this Note, upon the redemption or acceleration of Maturity of this Note there
shall be payable, in lieu of the principal amount due at the Stated Maturity
hereof, as specified on the face hereof, an amount equal to the Amortized Face
Amount of this Security. The "Amortized Face Amount" shall be the amount equal
to the product of (a) the aggregate principal amount of such Note multiplied by
(b) the sum of (i) the issue price of this Note (as defined below and expressed
as a percentage of the aggregate principal amount) plus (ii) the original issue
discount amortized at the Stated Yield (as defined below) of this Note
(computed in accordance with generally accepted United States bond yield
computation principles) at the date as of which the Amortized Face Amount is
calculated, but in no event shall the Amortized Face Amount exceed the
principal amount of this Note due at the Stated Maturity hereof. As used in the
previous sentence "issue price" means the principal amount due at the Stated
Maturity hereof less the Total Amount of OID of this Note specified on the face
hereof and the "Stated Yield" means the Yield to Maturity specified on the face
hereof (or if not so specified, the yield to maturity compounded semi-annually
and computed in accordance with generally accepted United States bond yield
computation principles) for the period from the Issue Date to the Stated
Maturity of the issue price and such principal amount.
If this Note is denominated in a Specified Currency, unless the Holder
hereof is entitled to make, and has made, a Specified Currency Payment Election
with respect to such payments as provided on the face hereof, the Holder of this
Note shall receive payments of principal (and premium, if any) and interest in
U.S. dollars at an exchange rate based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent (who, unless otherwise specified
on the face hereof, shall be the Trustee) at approximately 11:00 A.M., New York
City time, on the second Business Day with respect to this Note preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Company for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of such Specified Currency payable to all Holders of Securities
-4-
<PAGE>
of this series denominated in such Specified Currency and scheduled to receive
U.S. dollar payments on such payment date and at which the applicable dealer
commits to execute a contract. "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in the
City of New York and (i) with respect to LIBOR Notes (as defined below), is
also a London Banking Day, (ii) with respect to Notes denominated in a
Specified Currency other than U.S. dollars, Australian dollars or ECUs, in the
principal financial center of the country of the Specified Currency, (iii) with
respect to Notes denominated in Australian dollars, in Sydney and (iv) with
respect to Notes denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris. "London Banking Day" means
any day on which dealings in deposits in the Index Currency specified on the
face hereof are transacted in the London interbank market. All currency
exchange costs in converting a Specified Currency into U.S. dollars in order to
make payments hereon will be borne by the Holder of this Note by deductions
from such payments. If such bid quotations are not available, or if a Specified
Currency Payment Election has been made with respect to such payments, payments
will be made in the Specified Currency (or, if such Specified Currency is not
at the time of such payment legal tender for the payment of public and private
debts, such other coin or currency of the country which issued such Specified
Currency as at the time of such payment is legal tender for the payment of such
debts); provided, that if such Specified Currency (or, if applicable, such
other coin or currency) is unavailable due to the imposition of exchange
controls or other circumstances beyond the Company's control, the Company will
be entitled to make payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) for such Specified Currency (or, if
applicable, such other coin or currency) on the date of such payment or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise indicated herein.
If one or more Redemption Dates (or range(s) of Redemption Dates) is
specified on the face hereof, this Note is subject to redemption on any such
date (or during any such range) upon not less than 30 or more than 60 days'
notice by mail, on any such date (or during any such range) or, if such date is
not a Business Day, on the first Business Day following such date, as a whole,
or from time to time in part, at the election of the Company, at a Redemption
Price determined as provided in this paragraph, together with interest accrued
to but excluding the Redemption Date, but any interest payment due on or prior
to the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Securities) of record at the close of business on the Record Dates
referred to on the face hereof, all as provided in the Indenture. If applicable,
the "Redemption Price" for any such redemption shall be the amount determined by
multiplying the Redemption Percentage specified on the face hereof with respect
to the relevant Redemption Date (or range of such dates), by the portion of the
principal amount hereof (or, if this Note is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed.
If one or more Redemption Dates (Option of Holder) (or range(s) of
Redemption Dates) is specified on the face hereof, this Note is subject to
redemption on any such date (or during any such range) or, if such date is not a
Business Day, on the first Business Day following such date, as a whole or from
time to time in part, at the election of the Holder hereof, at a Redemption
Price determined as provided in this paragraph, together with interest accrued
to but excluding the Redemption Date, but interest payments due on or prior to
the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Securities) of record at the close of business on the Record Dates
referred to on the face hereof, all as provided in the Indenture. Such election
shall be effected by the Holder hereof delivering to the Company at the
principal corporate trust office of the Trustee (or duly authorized paying
agent) in The City of New York, not less than 30 nor more than 60 days prior to
the date on which this Note is to be redeemed,
-5-
<PAGE>
or during such other Notice Period specified on the face hereof, a notice
requesting such redemption in the form described below and specifying the date
upon which this Note is to be redeemed. Any notice given by a Holder pursuant
to this paragraph shall consist of either (i) this Note with the form entitled
"Option to Elect Redemption" set forth at the end of this Note duly completed
or (ii) a telegram, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities
Dealers, Inc. or a commercial bank or trust company in the United States
setting forth the name of the Holder hereof, the principal amount of this Note,
the principal amount of this Note to be redeemed, the certificate number or a
description of the terms of this Note, a statement that the option to elect
redemption is being exercised thereby and a guarantee that this Note, together
with the duly completed form entitled "Option to Elect Redemption" below will
be received by the Trustee not later than the fifth Business Day after the date
of such telegram, facsimile transmission or letter; provided, that such
telegram, facsimile transmission or letter shall only be effective if this Note
and form duly completed are received by the Trustee by such fifth Business Day.
Exercise of the redemption option by the Holder hereof will be irrevocable. If
applicable, the "Redemption Price" for any such redemption shall be determined
by multiplying the Redemption Percentage (Option of Holder) specified on the
face hereof with respect to the relevant Redemption Date (Option of Holder) (or
range of such dates) by the portion of the principal amount hereof (or, if this
Note is an Original Issue Discount Security, the portion of the Amortized Face
Amount hereof) to be redeemed, together with interest accrued thereon to but
excluding the Redemption Date.
Notice of redemption having been given as aforesaid, this Note (or the
portion of the principal amount hereof so to be redeemed) shall, on the
Redemption Date, become due and payable at the Redemption Price herein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) shall cease to bear
interest. In the case of any partial redemption at the election of the Company
of Securities of this Series of like tenor and terms, the Company shall give the
Trustee written notice, at least 60 days (or such shorter period acceptable to
the Trustee) in advance of the Redemption Date as to the aggregate principal
amount to be redeemed, and the Securities to be redeemed shall be selected by
the Trustee in such manner as the Trustee shall deem appropriate and fair and
which may provide for the selection for redemption of portions of the principal
amount of Securities. If less than all the Securities of this Series of unlike
tenor and terms are to be redeemed, the particular Securities to be redeemed
shall be selected by the Company. In the event of any redemption of this Note in
part only, a new Security or Securities of this Series of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof, provided that such unredeemed portion shall not be less
than the minimum denomination of this Note.
If an Event of Default shall have occurred and be continuing with respect
to the Securities of any Series, unless the principal of all of the
Securities of such Series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities of such Series then Outstanding, may declare the entire principal of
(or, in the case of Original Issue Discount Securities, the Amortized Face
Amount thereof), and premium, if any, on all of the Securities of such Series
then Outstanding and the interest accrued thereon to be due and payable
immediately in the manner and with the effect provided in the Indenture. Prior
to a declaration of acceleration of the Maturity of any Securities of any
Series, the Holders of not less than a majority in aggregate principal amount of
the Securities of such Series then Outstanding with respect to which a default
or breach or an Event of Default shall have occurred and be continuing may on
behalf of the Holders of all of the Securities of such Series waive any past
default or breach or Event of Default and its consequences, except a default or
breach or Event of Default in the payment of principal of (or, in the case of
Original Issue Discount Securities, the Amortized
-6-
<PAGE>
Face Amount thereof), or premium, if any, or interest on any Security of such
Series. Upon any such waiver, such default or breach shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured with
the effect provided in the Indenture but no such waiver shall extend to any
subsequent or other default or breach or Event of Default or impair any right
consequent on such subsequent default or breach or Event of Default.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding of all Series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any
Holder of the Securities may be made without the approval of Holders of the
Securities and no amendment or modification may, among other things, extend the
Stated Maturity of any Security, reduce the principal amount thereof, reduce
the rate or extend the time of payment of any interest thereon without the
consent of the Holder of each Security so affected or reduce the aforesaid
majority in aggregate principal amount of Securities of any Series, the consent
of the Holders of which is required for any such amendment or modification,
without the consent of the Holders of all Securities of each affected Series.
Notwithstanding any provision in the Indenture or any provision of this
Note, the Holder of this Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (or, in the case of
Original Issue Discount Securities, the Amortized Face Amount thereof), and
premium, if any, and interest on this Note at the times, place and rate, and in
the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein, transfer of this Note is registrable on the Security Register, upon due
presentment for registration of transfer of this Note at the office or agency of
the Company in New York, New York, or such other offices or agencies as the
Company may designate, and thereupon the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of Authorized Denomination, of the same series and of
like aggregate principal amount at Stated Maturity. "Authorized Denominations"
means, unless otherwise specified on the face hereof, (i) with respect to Notes
denominated in U.S. dollars, $1,000 or any amount in excess thereof which is an
integral multiple of $1,000 and (ii) with respect to Notes denominated in
foreign or composite currencies, the equivalent of $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New York
City for cable transfers of such Specified Currency published by the Federal
Reserve Bank of New York (the "Market Exchange Rate") on the Business Day
immediately preceding the date of issuance; provided, however, that in the case
of ECU's, the Market Exchange Rate shall be the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any successor
publication, on the Business Day immediately preceding the date of issuance. As
provided in the Indenture and subject to certain limitations therein set forth,
this Note is exchangeable for a like aggregate principal amount of Securities of
the same terms as this Note and of Authorized Denominations.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or this Note or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Note by
the Holder
-7-
<PAGE>
hereof and as part of the consideration for the issue of this Note.
No service charge will be made for any such exchange or registration of
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in relation thereto.
All terms used in this Note which are defined in the Indenture have the
meanings assigned to them in the Indenture.
-8-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN
ACT - _____________ Custodian _______________
(Custodian) (minor)
Under Uniform Gifts to Minor Act (_______________)
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
Insert assignee's soc. sec. or tax I.D. no.
- -------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
and irrevocably appoint________________________________________________________
- -------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
- -------------------------------------------------------------------------------
Dated:________________ ___________________________________
___________________________________
NOTICE: The signature to this assignment must correspond with the name as
it appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed by a
member of a recognized Medallion Program approved by the Securities Transfer
Association Inc.
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<PAGE>
OPTION TO ELECT REDEMPTION
The undersigned hereby irrevocably requests and instructs Dean Foods
Company to redeem the within Note (or portion thereof specified below) pursuant
to its terms by payment of the Redemption Price to the undersigned at
- -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF THE
UNDERSIGNED)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
If less than the entire principal amount of the within Note is to be
redeemed, specify the portion thereof which the Holder elects to have redeemed:
___________________________________; specify the denomination or denominations
(which shall not be less than the minimum Authorized Denomination) of the
Securities to be issued to the Holder for the portion of the within Note not
being redeemed (in the absence of any such specification, one such Security will
be issued for the portion not being redeemed):
- -------------------------------------------------------------------------------
Dated:__________________ _________________________________
_________________________________
NOTICE: This signature on this Option to Elect Redemption must correspond
with the name as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatever and must be guaranteed
by a member of a recognized Medallion Program approved by the Securities
Transfer Association Inc.
-10-
<PAGE>
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Registered CUSIP:___________
No. FLRA-________
Dean Foods Company
Senior Medium-Term Note, Series A
(Floating Rate)
<TABLE>
<S> <C>
PRINCIPAL AMOUNT AND CURRENCY OR STATED MATURITY DATE:
CURRENCY UNIT:
RECORD DATE(S):
DENOMINATIONS (IF OTHER THAN U.S.
DOLLARS OR THE U.S. DOLLAR REDEMPTION DATE(S):
DENOMINATIONS SET FORTH ON THE
REVERSE): REDEMPTION PERCENTAGE(S):
OPTION TO RECEIVE PAYMENTS IN REDEMPTION DATE(S) (OPTION OF HOLDER):
SPECIFIED CURRENCY:
REDEMPTION PERCENTAGE(S) (OPTION OF
YES:_____ NO:_____ HOLDER):
ISSUE DATE: NOTICE PERIOD:
INITIAL INTEREST RATE: ORIGINAL ISSUE DISCOUNT SECURITY:
If applicable, the following will be
INTEREST PAYMENT PERIOD: completed solely for the purpose of
applying the United States federal
INTEREST PAYMENT DATES: income tax original issue discount
("OID") rules:
EXCHANGE RATE AGENT:
TOTAL AMOUNT OF OID:
DEPOSITARY: YIELD TO MATURITY:
The Depository Trust Company
INITIAL ACCRUAL PERIOD OID:
CALCULATION AGENT:
Bank of America Illinois
</TABLE>
<PAGE>
<TABLE>
<S> <C>
BASE RATE: INTEREST RESET DATES:
INDEX MATURITY: INDEX CURRENCY:
SPREAD (plus or minus): DESIGNATED LIBOR PAGE:
SPREAD MULTIPLIER: DESIGNATED CMT TELERATE PAGE:
MINIMUM INTEREST RATE: DESIGNATED CMT MATURITY INDEX:
MAXIMUM INTEREST RATE: OTHER PROVISIONS:
INTEREST RESET PERIOD:
</TABLE>
DEAN FOODS COMPANY, a Delaware corporation (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
herein), for value received, hereby promises to pay to: Cede & Co., or
registered assigns, the principal amount specified above (any currency or
currency unit other than U.S. dollars being hereinafter referred to as a
"Specified Currency") on the Stated Maturity specified above and to pay
interest thereon from and including the Issue Date specified above (the "Issue
Date") or from and including the most recent Interest Payment Date to which
interest on this Note (or any predecessor Note) has been paid or duly provided
for to but excluding the relevant Interest Payment Date; provided, however,
that if this Note has a daily or weekly Interest Reset Period, as shown above,
such interest will be paid from and including the Issue Date shown above or
from and including the day following the most recent regular Record Date to
which interest has been paid, as the case may be, to and including, the most
recent regular Record Date immediately preceding such Interest Payment Date,
except that at maturity or earlier redemption or repayment, the interest
payable will include interest accrued to, but excluding, the maturity,
redemption or repayment date, as the case may be. Interest will be paid on the
Interest Payment Date(s) specified above (each an "Interest Payment Date") and
at Maturity, at the rate per annum determined in accordance with the provisions
on the reverse hereof, depending on the Base Rate specified above and the
Spread, if any, or Spread Multiplier, if any, and subject to the Minimum
Interest Rate and Maximum Interest Rate, if any, until the principal hereof is
paid or duly made available for payment; provided, that unless the Holder
hereof is entitled to make, and has made, a Specified Currency Payment Election
(as hereinafter defined) with respect to one or more such payments, the Company
will make all such payments in U.S. dollars in amounts determined as set forth
herein. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Holder of this Note (or one or more predecessor Notes) of record at the close
of business on the Record Date specified above next preceding such Interest
Payment Date; provided, that interest payable at Maturity shall be payable to
the same Person to whom principal on this Note is payable; and provided
further, that if the Issue Date is after a Record Date and less than 15
calendar days before the next succeeding Interest Payment Date, the first
payment of interest shall be payable on the second Interest Payment Date
following the Issue Date to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the Record Date
next preceding such second Interest Payment Date.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Record Date, and may be paid
to the Holder of this Note (or one or more predecessor Notes) of record at the
close of business on a subsequent record date fixed by the Trustee for the
payment of such Defaulted Interest, notice whereof shall be given to Holders not
less than 15 days prior to such subsequent record date. Payment of the principal
of (and premium, if any, on) this Note and, unless otherwise paid as hereinafter
provided, the interest thereon will be made at the office or agency of the
Company in The City of New York, State of New York, in such
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<PAGE>
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, that payment of
the principal of (and premium, if any) and interest on this Note due at
Maturity will be made in immediately available funds at such office or agency
if this Note is presented in time for the Trustee (or a duly authorized paying
agent) to make such payments in such funds in accordance with its normal
procedures; provided further, that payment of interest may be made at the
option of the Company by check mailed to the Person entitled thereto at such
Person's address appearing in the Security Register; and provided, further,
that if this Note is denominated in a Specified Currency, and the Holder hereof
is entitled to make, and has made, a Specified Currency Payment Election with
respect to such payments, and the Exchange Rate Agent is able to convert such
payments as provided below and the Specified Currency is not unavailable due to
the imposition of exchange controls or other circumstances beyond the control
of the Company, then (i) the payment of interest on this Note will be made in
the Specified Currency (or, if such Specified Currency is not at the time of
such payment legal tender for the payment of public and private debts, in such
other coin or currency of the country which issued such Specified Currency as
at the time of such payment is legal tender for the payment of such debts) by
check drawn on a bank office located outside the United States and mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register and (ii) the payment of principal (and premium, if any) and
interest due at Maturity will be made in such Specified Currency (or, if
applicable, such other coin or currency) by wire transfer of immediately
available funds to an account maintained by the Holder hereof with a bank
office located in the country which issued the Specified Currency upon
presentation of this Note to the Trustee (or a duly authorized paying agent) in
time for such wire transfer to be made by the Trustee (or such paying agent) in
accordance with its normal procedures. Notwithstanding the foregoing, (a) the
Depositary, as holder of this Note, shall be entitled to receive payments of
interest by wire transfer of immediately available funds and (b) a holder of
U.S. $10 million (or the equivalent in a Specified Currency) or more in
aggregate principal amount of Notes represented by a certificate and having the
same Interest Payment Date shall be entitled to receive payments of interest by
wire transfer of immediately available funds upon written request to the
Trustee (or paying agent); provided, that such request is received not later
than 25 calendar days prior to the applicable Interest Payment Date.
Unless otherwise specified above, if this Note is denominated in a
Specified Currency, the Holder hereof may elect to receive payments of principal
of (and premium, if any) and interest in such Specified Currency (a "Specified
Currency Payment Election") by delivery of a written request (including, in the
case of an election with respect to payments at Maturity, appropriate wire
transfer instructions) to the Trustee at its principal corporate trust office
referred to above on or prior to the relevant Record Date or the sixteenth day
prior to Maturity, as the case may be. Such request may be in writing (mailed or
hand delivered) or by cable or other form of facsimile transmission. The Holder
may elect to receive payment in the Specified Currency for all principal (and
premium, if any) and interest payments and need not file a separate election for
each payment. Such election shall remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the relevant Record Date or at least
sixteen days prior to Maturity, as the case may be. Additional provisions of
this Note are set forth on the reverse hereof.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
DEAN FOODS COMPANY
DATED: By:_____________________________________
Chairman of the Board and
Chief Executive Officer
This is one of the Securities of the
series designated herein referred to
in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS,
as Trustee
By:________________________________ Attest:_______________________________
Authorized Signature Secretary
-4-
<PAGE>
DEAN FOODS COMPANY
Senior Medium-Term Note, Series A
This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issuable in one or more Series,
unlimited in aggregate principal amount except as may be otherwise provided in
respect of the Securities of a particular Series, issued and to be issued under
and pursuant to an Indenture dated as of January 15, 1995 (herein called the
"Indenture"), duly executed and delivered by the Company to Bank of America
Illinois, as Trustee (the "Trustee"), and is one of a Series limited in
aggregate principal amount to $200,000,000 (or if Securities of this Series are
to be Original Issue Discount Securities or are to be denominated in one or more
Specified Currencies, such principal amount as shall result in an aggregate
initial offering price of Securities equivalent to not more than $200,000,000).
The Securities of this Series may be issued from time to time in various
principal amounts and currencies or currency units, may mature at different
times, may bear interest at different rates, may be subject to different
redemption provisions, if any, and may otherwise vary. Reference is hereby made
to the Indenture for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of Securities (including Holders of the Securities of this Series).
The Securities are general, direct, unconditional and unsecured obligations
of the Company and will rank pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
If this Security is designated on the face hereof as an Original Issue
Discount Security, then, notwithstanding anything to the contrary contained in
this Note, upon the redemption or acceleration of Maturity of this Note there
shall be payable, in lieu of the principal amount due at the Stated Maturity
hereof, as specified on the face hereof, an amount equal to the Amortized Face
Amount of this Security. The "Amortized Face Amount" shall be the amount equal
to the product of (a) the aggregate principal amount of such Note multiplied by
(b) the sum of (i) the issue price of this Note (as defined below and expressed
as a percentage of the aggregate principal amount) plus (ii) the original issue
discount amortized at the Stated Yield (as defined below) of this Note (computed
in accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated, but
in no event shall the Amortized Face Amount exceed the principal amount of this
Note due at the Stated Maturity hereof. As used in the previous sentence "issue
price" means the principal amount due at the Stated Maturity hereof less the
Total Amount of OID of this Note specified on the face hereof and the "Stated
Yield" means the Yield to Maturity specified on the face hereof (or if not so
specified, the yield to maturity compounded semi-annually and computed in
accordance with generally accepted United States bond yield computation
principles) for the period from the Issue Date to the Stated Maturity of the
issue price and such principal amount.
If this Note is denominated in a Specified Currency, unless the Holder
hereof is entitled to make, and has made, a Specified Currency Payment Election
with respect to such payments as provided on the face hereof, the Holder of this
Note shall receive payments of principal (and premium, if any) and interest in
U.S. dollars at an exchange rate based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent (who, unless otherwise specified
on the face hereof, shall be the Trustee) at approximately 11:00 A.M., New York
City time, on the second Business Day with respect to this Note preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Company for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of such Specified Currency payable to all Holders of Securities
-5-
<PAGE>
of this series denominated in such Specified Currency and scheduled to receive
U.S. dollar payments on such payment date and at which the applicable dealer
commits to execute a contract. "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York and (i) with respect to LIBOR Notes (as defined below), is
also a London Banking Day, (ii) with respect to Notes denominated in a
Specified Currency other than U.S. dollars, Australian dollars or ECUs, in the
principal financial center of the country of the Specified Currency, (iii) with
respect to Notes denominated in Australian dollars, in Sydney and (iv) with
respect to Notes denominated in ECUs, that is not a non-ECU clearing day, as
determined by the ECU Banking Association in Paris. "London Banking Day" means
any day on which dealings in deposits in the Index Currency specified on the
face hereof are transacted in the London interbank market. All currency
exchange costs in converting a Specified Currency into U.S. dollars in order to
make payments hereon will be borne by the Holder of this Note by deductions
from such payments. If such bid quotations are not available, or if a Specified
Currency Payment Election has been made with respect to such payments, payments
will be made in the Specified Currency (or, if such Specified Currency is not
at the time of such payment legal tender for the payment of public and private
debts, such other coin or currency of the country which issued such Specified
Currency as at the time of such payment is legal tender for the payment of such
debts); provided, that if such Specified Currency (or, if applicable, such
other coin or currency) is unavailable due to the imposition of exchange
controls or other circumstances beyond the Company's control, the Company will
be entitled to make payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) for such Specified Currency (or, if
applicable, such other coin or currency) on the date of such payment or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise indicated herein.
The rate of interest on this Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually (such period being the "Interest Reset
Period" for such Note, and the first day of each Interest Reset Period being an
"Interest Reset Date"), as specified on the face hereof. The Interest Reset
Date will be, in the case of Notes which reset daily, each Business Day; in the
case of Notes (other than if the Base Rate indicated on the face hereof is the
Treasury Rate) which reset weekly, the Wednesday of each week; in the case of
Notes on which the Base Rate is the Treasury Rate which reset weekly, the
Tuesday of each week, except as provided below, when the normally scheduled
Treasury auction is not on a Monday; in the case of Notes which reset monthly,
the third Wednesday of each month; in the case of Notes which reset quarterly,
the third Wednesday of March, June, September and December; in the case of
Notes which reset semiannually, the third Wednesday of two months of each year,
as specified on the face hereof; and in the case of Notes which reset annually,
the third Wednesday of one month of each year, as specified on the face hereof;
provided, however, that (a) the interest rate in effect from the Issue Date to
the first Interest Reset Date will be the initial interest rate set forth on
the face hereof (the "Initial Interest Rate") and (b) the interest rate in
effect for the ten calendar days immediately prior to maturity, redemption or
repayment will be that in effect on the tenth calendar day preceding such
maturity, redemption or repayment date. If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding Business Day, except that if the Base Rate
indicated on the face hereof is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
Except as provided below, interest on this Note will be payable: (i) if
this Note has a daily, weekly or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of March, June, September and
December, as specified on the face hereof; (ii) if this Note has a quarterly
Interest Reset Date, on the third Wednesday of March,
-6-
<PAGE>
June, September and December; (iii) if this Note has a semiannual Interest
Reset Date, on the third Wednesday of the two months specified on the face
hereof; and (iv) if this Note has an annual Interest Reset Date, on the third
Wednesday of the month specified on the face hereof. If any such Interest
Payment Date would fall on a day that is not a Business Day, such Interest
Payment Date will be postponed to the next succeeding day that is a Business
Day, except that, if the Base Rate indicated on the face hereof is LIBOR, if
such Business Day is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding day that is a Business Day. If
the Maturity date or any earlier redemption or repayment date would fall on a
day that is not a Business Day, the payment of principal, premium, if any, and
interest will be made on the next succeeding Business Day, and no interest on
such payment shall accrue for the period from and after such Maturity,
redemption or repayment date, as the case may be.
Interest payments for this Note (except if this Note has a daily or weekly
Interest Reset Period) shall be the amount of interest accrued from and
including the Issue Date or from and including the last date to which interest
has been paid to, but excluding, the Interest Payment Date or Maturity date or
date of redemption or repayment. In the case of a Note with a daily or weekly
Interest Reset Period, interest payments shall be the amount of interest accrued
from and including the Issue Date or from, but excluding, the last Record Date
to which interest has been paid, as the case may be, to and including the Record
Date immediately preceding such Interest Payment Date, except that at Maturity
or earlier redemption or repayment, the interest payable will include interest
accrued to, but excluding, the Maturity, redemption or repayment date, as the
case may be.
Accrued interest shall be calculated by multiplying the principal amount of
this Note by an accrued interest factor. Such accrued interest factor will be
computed by adding the interest factors calculated for each day in the period
for which interest is being paid. The interest factor for each such day is
computed by dividing the interest rate applicable to such day by 360, in the
case of Notes with a Base Rate indicated on the face hereof which is the CD
Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR or Prime Rate or by the
actual number of days in the year, in the case of Notes with a Base Rate
indicated on the face hereof which is the Treasury Rate or CMT Rate. All
percentages used in or resulting from any calculation of the rate of interest
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation will be
rounded to the nearest cent, with one-half cent rounded upward. The interest
rate in effect on any Interest Reset Date will be the applicable rate as reset
on such date. The interest rate applicable to any other day is the interest rate
from the immediately preceding Interest Reset Date (or, if none, the Initial
Interest Rate). Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. In addition, the interest rate
hereon shall in no event be higher than the maximum interest rate permitted by
New York law as the same may be modified by United States law of general
application.
The calculation agent (the "Calculation Agent") shall be Bank of America
Illinois. Upon the request of the Holder of this Note, the Calculation Agent
will provide the interest rate then in effect and, if determined, the interest
rate that will become effective on the next Interest Reset Date with respect to
this Note.
The "Interest Determination Date" pertaining to an Interest Reset Date for
a Note with a Base Rate specified on the face hereof which is the CD Rate,
Commercial Paper Rate, Federal Funds Rate, CMT Rate or Prime Rate will be the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a Note with a Base
Rate specified on the face hereof which is LIBOR will be the second London
Banking Day preceding such Interest Reset Date. The
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<PAGE>
Interest Determination Date pertaining to an Interest Reset Date for a Note
with a Base Rate specified on the face hereof which is the Treasury Rate will
be the day of the week in which such Interest Reset Date falls on which
Treasury bills would normally be auctioned. Treasury bills are normally sold
at auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, but such auction
may be held on the preceding Friday. If, as the result of a legal holiday, an
auction is so held on the preceding Friday, such Friday will be the Interest
Determination Date pertaining to the Interest Reset Date occurring in the next
succeeding week. If an auction falls on a day that is an Interest Reset Date,
such Interest Reset Date will be the next following Business Day.
The "Calculation Date," where applicable, pertaining to an Interest
Determination Date will be the earlier of (i) the tenth calendar day after such
Interest Determination Date, or, if such day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day preceding the applicable
Interest Payment Date or maturity date, as the case may be.
The Initial Interest Rate in effect with respect to this Note from the
Issue Date to the first Interest Reset Date will be specified on the face
hereof. The interest rates for each subsequent Interest Reset Date will be
determined by the Calculation Agent as follows on the basis of the Base Rate
specified on the face hereof, plus or minus the Spread or multiplied by the
Spread Multiplier, as indicated on the face hereof and subject to any Minimum
Interest Rate or Maximum Interest Rate as specified on the face hereof:
Determination of CD Rate.
-------------------------
If the Base Rate is the CD Rate as indicated on the face hereof, the "CD
Rate" means, with respect to any Interest Determination Date, the rate on such
date for negotiable certificates of deposit having the Index Maturity designated
on the face hereof as published by the Board of Governors of the Federal Reserve
System in "Statistical Release H.15(519), Selected Interest Rates," or any
successor publication of the Board of Governors of the Federal Reserve System
("H.15(519)") under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity designated on the face hereof as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations for
U.S. Government Securities" (the "Composite Quotations") under the heading
"Certificates of Deposit." If such rate is not yet published in either H.15(519)
or the Composite Quotations by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the CD Rate on such
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such Interest Determination Date for certificates of
deposit in the denomination of $5,000,000 with a remaining maturity closest to
the Index Maturity designated on the face hereof of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in the City of New
York selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as set forth
above, the CD Rate in effect for the applicable period will be the same as the
CD Rate for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable on this Note for which
such CD Rate is being determined shall be the Initial Interest Rate).
Determination of Commercial Paper Rate.
---------------------------------------
If the Base Rate is the Commercial Paper Rate as indicated on the face
hereof, the "Commercial Paper Rate" means, with respect to any Interest
Determination Date, the Money Market Yield (as defined below) of the rate on
such date for commercial paper having the Index Maturity specified on the face
hereof, as such rate shall be published in H.15(519),
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<PAGE>
under the heading "Commercial Paper." In the event that such rate is not
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, then the Commercial Paper Rate shall be
the Money Market Yield of the rate on such Interest Determination Date for
commercial paper of the Index Maturity designated on the face hereof as
published in Composite Quotations under the heading "Commercial Paper." If by
3:00 P.M., New York City time, on such Calculation Date such rate is not yet
available in either H.15(519) or Composite Quotations, then the Commercial
Paper Rate shall be the Money Market Yield of the arithmetic mean of the
offered rates as of 11:00 A.M., New York City time, on such Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper of the Index
Maturity designated on the face hereof, placed for an industrial issuer whose
bond rating is "AA," or the equivalent, from a nationally recognized rating
agency; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting offered rates as mentioned in this sentence,
the Commercial Paper Rate in effect for the applicable period will be the same
as the Commercial Paper Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable on this Note for which such Commercial Paper Rate is being determined
shall be the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360
----------- x 100
360 - (DxM)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate.
------------------------------------
If the Base Rate is the Federal Funds Rate as indicated on the face hereof,
the "Federal Funds Rate" means, with respect to any Interest Determination Date,
the rate on such date for Federal funds, as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in the Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not yet published in either
H.15(519) or the Composite Quotations by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the Federal
Funds Rate for such Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds, as of 9:00 A.M., New York City time, on
such Interest Determination Date, arranged by three leading brokers of Federal
funds transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as set forth above, the Federal Funds Rate in effect for
the applicable period will be the same as the Federal Funds Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable on this Note for which such Federal
Funds Rate is being determined shall be the Initial Interest Rate).
Determination of LIBOR.
- -----------------------
If the Base Rate is LIBOR as specified on the face hereof, "LIBOR" for each
Interest Determination Date will be determined by the Calculation Agent as
follows:
(i) As of the Interest Determination Date, LIBOR will be either: (a) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as defined below) by
its terms provides only for a single rate, in which case such single rate shall
be used) for deposits in the Index Currency having the Index Maturity designated
on the face hereof, commencing on such Interest Determination Date, that appear
on the Designated LIBOR Page as of 11:00
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<PAGE>
A.M., London time, on that Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required) on
such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on the face
hereof, the rate for deposits in the Index Currency having the Index Maturity
designated on the face hereof, commencing on such Interest Determination Date,
that appears on the Designated LIBOR Page as of 11:00 A.M., London time, on
that Interest Determination Date. If fewer than two offered rates appear (if
"LIBOR Reuters" is specified on the face hereof) or no rate appears (if "LIBOR
Telerate" is specified on the face hereof), LIBOR in respect of the related
Interest Determination Date will be determined as if the parties had specified
the rate described in clause (ii) below.
(ii) With respect to an Interest Determination Date on which fewer than two
offered rates appear (if "LIBOR Reuters" is specified on the face hereof) or no
rate appears (if "LIBOR Telerate" is specified on the face hereof), the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered quotation
for deposits in the Index Currency for the period of the Index Maturity
designated on the face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date, to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on such
Interest Determination Date and in a principal amount of not less than
$1,000,000 (or the equivalent in the Index Currency, if the Index Currency is
not the U.S. dollar) that is representative for a single transaction in such
Index Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are provided,
LIBOR determined on such Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 A.M. (or such other time specified on
the face hereof), in the applicable principal financial center for the country
of the Index Currency on such Interest Determination Date, by three major banks
in such principal financial center selected by the Calculation Agent for loans
in the Index Currency to leading European banks, having the Index Maturity
designated on the face hereof and in a principal amount of not less than
$1,000,000 commencing on the second London Banking Day immediately following
such Interest Determination Date (or the equivalent in the Index Currency, if
the Index Currency is not the U.S. dollar) that is representative for a single
transaction in such Index Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR in effect for the applicable period will be
the same as LIBOR for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable on this
Note for which LIBOR is being determined shall be the Initial Interest Rate).
"Index Currency" means the currency (including composite currencies)
specified on the face hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on the face hereof, the Index
Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is designated
on the face hereof, the display on the Reuters Monitor Money Rates Service for
the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is designated on the face
hereof, the display on the Dow Jones Telerate Service for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750) had been
specified.
Determination of Prime Rate.
---------------------------
If the Base Rate is the Prime Rate as specified on the face hereof, "Prime
Rate" means, with respect
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<PAGE>
to any Interest Determination Date, the rate set forth in H.15(519) for such
date opposite the caption "Bank Prime Loan." If such rate is not yet published
by 9:00 A.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Prime Rate for such Interest Determination
Date will be the arithmetic mean of the rates of interest publicly announced by
each bank named on the Reuters Screen NYMF Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Interest
Determination Date as quoted on the Reuters Screen NYMF Page on such Interest
Determination Date, or, if fewer than four such rates appear on the Reuters
Screen NYMF Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business on such Interest
Determination Date by at least two of the three major money center banks in The
City of New York selected by the Calculation Agent from which quotations are
requested. If fewer than two quotations are provided, the Prime Rate shall be
calculated by the Calculation Agent and shall be determined as the arithmetic
mean on the basis of the prime rates in The City of New York by the appropriate
number of substitute banks or trust companies organized and doing business
under the laws of the United States, or any State thereof, in each case having
total equity capital of at least U.S. $500 million and being subject to
supervision or examination by federal or state authority, selected by the
Calculation Agent to quote such rate or rates; provided, however, that if the
banks or trust companies selected as aforesaid by the Calculation Agent are
not quoting as set forth above, the Prime Rate in effect for the applicable
period will be the same as the Prime Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable on this Note for which such Prime Rate is being determined
shall be the Initial Interest Rate).
"Reuters Screen NYMF Page" means the display designated as Page "NYMF" on
the Reuters Monitor Money Rates Services (or such other page as may replace the
NYMF Page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
Determination of Treasury Rate.
-------------------------------
If the Base Rate is the Treasury Rate as indicated on the face hereof, the
"Treasury Rate" means, with respect to any Interest Determination Date, the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity designated on the face hereof, as
published in H.15(519) under the heading "Treasury Bills - auction average
(investment)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that the results of the auction of Treasury Bills
having the Index Maturity designated on the face hereof are not published or
reported as provided above by 3:00 P.M., New York City time, on such Calculation
Date or if no such auction is held on such Interest Determination Date, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three leading
primary United States government securities dealers selected by the Calculation
Agent for the issue of Treasury Bills with a remaining maturity closest to the
Index Maturity designated on the face hereof; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting bid rates
as mentioned in this sentence, the Treasury Rate for such Interest Reset Date
will be the same as the Treasury Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable on this Note for which the Treasury
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<PAGE>
Rate is being determined shall be the Initial Interest Rate).
Determination of CMT Rate.
--------------------------
If the Base Rate is the CMT Rate as specified on the face hereof, "CMT
Rate" means, with respect to any Interest Determination Date, the rate displayed
on the Designated CMT Telerate Page (as defined below) under the caption "...
Treasury Constant Maturities ... Federal Reserve Board Release H.15 ... Mondays
Approximately 3:45 p.m.," under the column for the Designated CMT Maturity Index
(as defined below) for (i) if the Designated CMT Telerate Page is 7055, the rate
on such Interest Determination Date and (ii) if the Designated CMT Telerate Page
is 7052, the week or the month, as applicable, ended immediately preceding the
week in which the related Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page, or if not displayed by 3:00 p.m., New
York City time, on the related Calculation Date, then the CMT Rate for such
Interest Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or, if not published by 3:00 p.m., New York City
time, on the related Calculation Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the Interest Determination Date with respect
to such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for the Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 p.m., New York City time, on the
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York (which may include the Agents or
their affiliates) selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent, after consultation with the Company,
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury notes") with an original maturity of
approximately the Designated CMT Maturity Index and remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury note quotations, the CMT
Rate for such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate for such Interest Reset Date will be the same as
the CMT Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable on this Note for
which the CMT Rate is being determined shall be the Initial Interest Rate). If
two Treasury notes with
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<PAGE>
an original maturity as described in the third preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the Treasury note with the shorter remaining term to maturity
will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in an applicable Pricing Supplement (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in an applicable Pricing Supplement with respect to which the CMT Rate
will be calculated. If no such maturity is specified in the applicable Pricing
Supplement, the Designated CMT Maturity Index shall be 2 years.
If one or more Redemption Dates (or range(s) of Redemption Dates) is
specified on the face hereof, this Note is subject to redemption on any such
date (or during any such range) upon not less than 30 or more than 60 days'
notice by mail, on any such date (or during any such range) or, if such date is
not a Business Day, on the first Business Day following such date, as a whole,
or from time to time in part, at the election of the Company, at a Redemption
Price determined as provided in this paragraph, together with interest accrued
to but excluding the Redemption Date, but any interest payment due on or prior
to the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Securities) of record at the close of business on the Record Dates
referred to on the face hereof, all as provided in the Indenture. If applicable,
the "Redemption Price" for any such redemption shall be the amount determined by
multiplying the Redemption Percentage specified on the face hereof with respect
to the relevant Redemption Date (or range of such dates), by the portion of the
principal amount hereof (or, if this Note is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed.
If one or more Redemption Dates (Option of Holder) (or range(s) of
Redemption Dates) is specified on the face hereof, this Note is subject to
redemption on any such date (or during any such range) or, if such date is not a
Business Day, on the first Business Day following such date, as a whole or from
time to time in part, at the election of the Holder hereof, at a Redemption
Price determined as provided in this paragraph, together with interest accrued
to but excluding the Redemption Date, but interest payments due on or prior to
the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Securities) of record at the close of business on the Record Dates
referred to on the face hereof, all as provided in the Indenture. Such election
shall be effected by the Holder hereof delivering to the Company at the
principal corporate trust office of the Trustee (or duly authorized paying
agent) in The City of New York, not less than 30 nor more than 60 days prior to
the date on which this Note is to be redeemed, or during such other Notice
Period specified on the face hereof, a notice requesting such redemption in the
form described below and specifying the date upon which this Note is to be
redeemed. Any notice given by a Holder pursuant to this paragraph shall consist
of either (i) this Note with the form entitled "Option to Elect Redemption" set
forth at the end of this Note duly completed or (ii) a telegram, facsimile
transmission or a letter from a member of a national securities exchange, or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder hereof, the
principal amount of this Note, the principal amount of this Note to be redeemed,
the certificate number or a description of the terms of this Note, a statement
that the option to elect redemption is being exercised thereby and a guarantee
that this Note, together with the duly completed form entitled "Option to Elect
Redemption" below will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, facsimile transmission
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<PAGE>
or letter; provided, that such telegram, facsimile transmission or letter shall
only be effective if this Note and form duly completed are received by the
Trustee by such fifth Business Day. Exercise of the redemption option by the
Holder hereof will be irrevocable. If applicable, the "Redemption Price" for
any such redemption shall be determined by multiplying the Redemption
Percentage (Option of Holder) specified on the face hereof with respect to the
relevant Redemption Date (Option of Holder) (or range of such dates) by the
portion of the principal amount hereof (or, if this Note is an Original Issue
Discount Security, the portion of the Amortized Face Amount hereof) to be
redeemed, together with interest accrued thereon to but excluding the
Redemption Date.
Notice of redemption having been given as aforesaid, this Note (or the
portion of the principal amount hereof so to be redeemed) shall, on the
Redemption Date, become due and payable at the Redemption Price herein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) shall cease to bear
interest. In the case of any partial redemption at the election of the Company
of Securities of this Series of like tenor and terms, the Company shall give the
Trustee written notice, at least 60 days (or such shorter period acceptable to
the Trustee) in advance of the Redemption Date as to the aggregate principal
amount to be redeemed, and the Securities to be redeemed shall be selected by
the Trustee in such manner as the Trustee shall deem appropriate and fair and
which may provide for the selection for redemption of portions of the principal
amount of Securities. If less than all the Securities of this Series of unlike
tenor and terms are to be redeemed, the particular Securities to be redeemed
shall be selected by the Company. In the event of any redemption of this Note in
part only, a new Security or Securities of this Series of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof, provided that such unredeemed portion shall not be less
than the minimum denomination of this Note.
If an Event of Default shall have occurred and be continuing with respect
to the Securities of any Series, unless the principal of all of the Securities
of such Series shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Securities
of such Series then Outstanding, may declare the entire principal of (or, in the
case of Original Issue Discount Securities, the Amortized Face Amount thereof),
and premium, if any, on all of the Securities of such Series then Outstanding
and the interest accrued thereon to be due and payable immediately in the manner
and with the effect provided in the Indenture. Prior to a declaration of
acceleration of the Maturity of any Securities of any Series, the Holders of not
less than a majority in aggregate principal amount of the Securities of such
Series then Outstanding with respect to which a default or breach or an Event of
Default shall have occurred and be continuing may on behalf of the Holders of
all of the Securities of such Series waive any past default or breach or Event
of Default and its consequences, except a default or breach or Event of Default
in the payment of principal of (or, in the case of Original Issue Discount
Securities, the Amortized Face Amount thereof), or premium, if any or interest
on any Security of such Series. Upon any such waiver, such default or breach
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured with the effect provided in the Indenture but no such waiver
shall extend to any subsequent or other default or breach or Event of Default or
impair any right consequent on such subsequent default or breach or Event of
Default.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding of all Series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any
Holder of the Securities may be made without the approval of Holders of the
Securities and no
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<PAGE>
amendment or modification may, among other things, extend the Stated Maturity
of any Security, reduce the principal amount thereof, reduce the rate or extend
the time of payment of any interest thereon without the consent of the Holder
of each Security so affected or reduce the aforesaid majority in aggregate
principal amount of Securities of any Series, the consent of the Holders of
which is required for any such amendment or modification, without the consent
of the Holders of all Securities of each affected Series.
Notwithstanding any provision in the Indenture or any provision of this
Note, the Holder of this Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (or, in the case of
Original Issue Discount Securities, the Amortized Face Amount thereof), and
premium, if any and interest on this Note at the times, place and rate, and in
the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein, transfer of this Note is registrable on the Security Register, upon
due presentment for registration of transfer of this Note at the office or
agency of the Company in New York, New York, or such other offices or agencies
as the Company may designate, and thereupon the Company shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of Authorized Denomination, of the
same series and of like aggregate principal amount at Stated Maturity.
"Authorized Denominations" means, unless otherwise specified on the face
hereof, (i) with respect to Notes denominated in U.S. dollars, $1,000 or any
amount in excess thereof which is an integral multiple of $1,000 and (ii) with
respect to Notes denominated in foreign or composite currencies, the equivalent
of $1,000 (rounded to an integral multiple of 1,000 units of such Specified
Currency), or any amount in excess thereof which is an integral multiple of
1,000 units of such Specified Currency, as determined by reference to the noon
dollar buying rate in New York City for cable transfers of such Specified
Currency published by the Federal Reserve Bank of New York (the "Market
Exchange Rate") on the Business Day immediately preceding the date of issuance;
provided, however, that in the case of ECU's, the Market Exchange Rate shall be
the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the European
Communities, or any successor publication, on the Business Day immediately
preceding the date of issuance. As provided in the Indenture and subject to
certain limitations therein set forth, this Note is exchangeable for a like
aggregate principal amount of Securities of the same terms as this Note and of
Authorized Denominations.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or this Note or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present or
future stockholder, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Note by
the Holder hereof and as part of the consideration for the issue of this Note.
No service charge will be made for any such exchange or registration of
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in relation thereto.
All terms used in this Note which are defined in the Indenture have the
meanings assigned to them in the Indenture.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN
ACT - _______________ Custodian ________________
(Custodian) (minor)
Under Uniform Gifts to Minor Act (_______________)
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
Insert assignee's soc. sec. or tax I.D. no.
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
and irrevocably appoint________________________________________________________
_______________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
_______________________________________________________________________________
Dated:_______________ _______________________________________
_______________________________________
NOTICE: The signature to this assignment must correspond with the name as
it appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed by a
member of a recognized Medallion Program approved by the Securities Transfer
Association Inc.
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<PAGE>
OPTION TO ELECT REDEMPTION
The undersigned hereby irrevocably requests and instructs Dean Foods
Company to redeem the within Note (or portion thereof specified below) pursuant
to its terms by payment of the Redemption Price to the undersigned at
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF THE
UNDERSIGNED)
_______________________________________________________________________________
_______________________________________________________________________________
If less than the entire principal amount of the within Note is to be
redeemed, specify the portion thereof which the Holder elects to have redeemed:
____________________________________; specify the denomination or denominations
(which shall not be less than the minimum Authorized Denomination) of the
Securities to be issued to the Holder for the portion of the within Note not
being redeemed (in the absence of any such specification, one such Security will
be issued for the portion not being redeemed):
_______________________________________________________________________________
Dated:__________________ _______________________________________
_______________________________________
NOTICE: This signature on this Option to Elect Redemption must correspond
with the name as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatever and must be guaranteed
by a member of a recognized Medallion Program approved by the Securities
Transfer Association Inc.
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<PAGE>
EXHIBIT 12
Dean Foods Company
Computation of Ratio of Earnings to Fixed Charges
-------------------------------------------------
<TABLE>
<CAPTION>
Thirty-Nine Weeks Fiscal Years Ending May
Ending February ----------------------------------------------
1995 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Income before taxes $ 92,269 $118,313 $114,759 $105,527 $124,340 $102,066
---------------------------------------------------------------
Fixed charges:
Interest expense 16,567 15,471 14,888 15,551 16,780 12,682
Debt issue costs 83 123 155 118 128 93
Portion of rentals (33%) 5,248 6,997 7,653 9,124 8,528 8,350
-------------------------------------------------------------
Total fixed charges 21,898 22,591 22,696 24,793 25,436 21,125
-------------------------------------------------------------
Earnings before taxes and
fixed charges $114,167 $140,904 $137,455 $130,320 $149,776 $123,191
==============================================================
Ratio of earnings to
fixed charges 5.2 6.2 6.1 5.3 5.9 5.8
==============================================================
</TABLE>
