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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
April 8, 1997
-------------
Date of Report (Date of earliest event reported)
DONALDSON, LUFKIN & JENRETTE, INC.
----------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-6862 13-1898818
- -------- ------ ----------
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of organization) Identification Number)
277 Park Avenue
New York, New York 10172
--------------------------------------------------
(Address of principal executive offices) (zip code)
(212) 892-3000
--------------
(Registrant's telephone number, including area code)
(Former Name or Former Address, if Changed Since Last Report)
Exhibit Index is on page 4 of this filing
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Item 5. OTHER EVENTS
On April 8, 1997, Donaldson, Lufkin & Jenrette, Inc. (the
"Company") commenced a program for the offering of Medium-Term Notes due nine
months or more from the date of issuance ("MEDIUM-TERM NOTES") in the
aggregate principal amount of up to $300,000,000 or the equivalent thereof in
one or more other currencies or currency units such as the European Currency
Unit. The Medium-Term Notes are part of the $500,000,000 in debt securities
and preferred stock registered by the Company pursuant to a Registration
Statement, as amended (the "REGISTRATION STATEMENT") filed with the Securities
and Exchange Commission ("COMMISSION") on Form S-3 (Registration No.
333-07567) pursuant to Rule 415 promulgated by the Commission under the
Securities Act of 1933, as amended the ("ACT"). A Prospectus Supplement and
Base Prospectus relating to the Medium-Term Notes has been filed with the
Commission pursuant to Rule 424(b) of the Act. The issuance and sale of the
Medium-Term Notes may be made from time to time in various amounts pursuant to
an Indenture, dated as of October 25, 1995, between the Company and The Bank
of New York, as Trustee. The Indenture was previously filed with the
Commission.
The Medium-Term Notes will be distributed pursuant to a
Distribution Agreement among the Company and certain agents. The form of the
Distribution Agreement is attached hereto as Exhibit 1 and incorporated by
reference herein. The Medium-Term Notes may bear fixed or floating rates of
interest and may also be issued as Indexed Notes, Dual Currency Notes,
Renewable Notes, Amortizing Notes or as Original Issue Discount Notes as
described in the Prospectus Supplement. A form of Fixed Rate Medium-Term Note
and Regular Floating Rate Medium-Term Note are attached hereto as Exhibits 4.2
and 4.3, respectively, and incorporated by reference herein. The Bank of New
York (the "CALCULATION AGENT") may perform certain services in connection with
the issuance of Medium-Term Notes bearing floating rates of interest or
bearing fixed rates of interest determined by reference to an interest rate
formula, if any, pursuant to a Calculation Agent Agreement between the Company
and the Calculation Agent. The form of the Calculation Agent Agreement is
attached hereto as Exhibit 4.4 and incorporated by reference herein. Tax
consequences of ownership and disposition of the Notes are described in the
Prospectus Supplement. The opinion of Davis Polk & Wardwell, special tax
counsel to the Company, is attached hereto as Exhibit 4.5 and incorporated by
reference herein.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
c. Exhibits.
1 Form of Distribution Agreement.
4.1 Indenture between the Company and The Bank of New York,
as Trustee (previously filed as Exhibit 4.1 to the
Quarterly Report on Form 10-Q filed with the Commission
on December 8, 1995).
4.2 Form of Fixed Rate Medium-Term Note.
4.3 Form of Floating Rate Medium-Term Note.
4.4 Form of Calculation Agent Agreement.
4.5 Form of Tax Opinion
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SIGNATURE
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.
DONALDSON, LUFKIN & JENRETTE, INC.
Date: April 11, 1997 By /s/ Thomas E. Siegler
----------------------
Name: Thomas E. Siegler
Title: Secretary
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EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
1 Form of Distribution Agreement.
4.1 Indenture between the Company and The Bank of New York, as
Trustee (previously filed as Exhibit 4.1 to the Quarterly
Report on Form 10-Q filed with the Commission on December
8, 1995).
4.2 Form of Fixed Rate Medium-Term Note.
4.3 Form of Floating Rate Medium-Term Note.
4.4 Form of Calculation Agent Agreement.
4.5 Form of Tax Opinion
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DONALDSON, LUFKIN & JENRETTE, INC.
$300,000,000
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
----------------------
April 8, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue New York,
New York 10172
BANCAMERICA SECURITIES, INC.
40 East 52nd Street
New York, New York 10022
BANQUE PARIBAS
33 Wigmore Street
London, England W1H0BN
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
CITICORP SECURITIES, INC.
399 Park Avenue
New York, New York 10043
CREDIT LYONNAIS SECURITIES (USA) INC.
1301 Avenue of the Americas
New York, New York 10019
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DEUTSCHE MORGAN GRENFELL INC.
31 West 52nd Street
New York, New York 10019
FIRST CHICAGO CAPITAL MARKETS INC.
One First National Plaza
Chicago, Illinois 60670
NATIONSBANC CAPITAL MARKETS, INC.
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255
SOCIETE GENERALE SECURITIES CORPORATION
1221 Avenue of the Americas
New York, New York 10020
UBS SECURITIES LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
Donaldson, Lufkin & Jenrette, Inc., 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 its Medium-Term Notes due from
nine months or more from date of issue (the "Notes") at an aggregate initial
offering price of up to $300,000,000 (or the equivalent thereof in one or more
foreign currencies or currency units), as such amount shall be reduced by the
aggregate initial offering price of any other debt securities or preferred
stock issued by the Company after the date hereof, whether within or without
the United States ("Other Securities") pursuant to the registration statement
referred to below, and agrees with each of you (individually, an "Agent", and
collectively, the "Agents", which term shall include any additional agents
appointed pursuant to Section 13 hereof) as set forth in this Agreement. The
Notes will be issued under an indenture dated as of October 25, 1995 (the
"Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee"). The Notes shall have the maturities, interest rates, redemption
provisions, if any, and other terms set forth in the Prospectus referred to
below as it may be amended or supplemented from time to time. The Notes will
be issued, and the terms and rights thereof established, from time to time by
the Company in accordance with the Indenture.
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On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation
by the Company of the right (A) to sell Notes directly to investors (other
than broker-dealers) in those jurisdictions in which the Company is so
permitted and (B) to accept (but not solicit) offers to purchase Notes from
time to time through one or more purchasers on substantially the terms set
forth in Exhibit C hereto, provided that the Company shall provide the Agents
with written notice of each such acceptance within two business days thereof,
the Company hereby (i) appoints the Agents as the exclusive agents of the
Company for the purpose of soliciting and receiving offers to purchase Notes
from the Company by others pursuant to Section 2(a) hereof and (ii) agrees
that, except as otherwise contemplated herein, whenever it determines to sell
Notes directly to any Agent as principal, it will enter into a separate
agreement (each such agreement a "Terms Agreement"), substantially in the form
of Exhibit A hereto, relating to such sale in accordance with Section 2(b)
hereof. In connection with the Company's reservation pursuant to clause (B)
above, it is understood that the Company may respond to inquiries and requests
for information from any such agents or dealers.
The Company has prepared and filed a registration statement on Form
S-3 (No. 333-07657) in respect of the Notes with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined) is hereinafter referred to as the
"Registration Statement" and the prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus supplement
or supplements (each a "Prospectus Supplement") specifically relating to the
Notes in the form filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act is hereinafter referred to as
the "Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Notes (a "Pricing Supplement"), shall be deemed to
refer to
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and include any documents filed under the Exchange Act after the date of this
Agreement, or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
1. Representations. The Company represents and warrants to, and
agrees with, each Agent as of the Commencement Date, as of each date on which
the Company accepts an offer to purchase Notes (including any purchase by an
Agent as principal pursuant to a Terms Agreement), as of each date the Company
issues and sells Notes and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being understood
that such representations and warranties shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has been declared
effective by the Commission under the Securities Act; no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement
and Prospectus comply and, as amended or supplemented, if
applicable, will comply, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act"); each
part of the Registration Statement filed with the Commission
pursuant to the Securities Act, when such part became
effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus did
not, as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and the Prospectus, as amended or
supplemented at such date, if applicable, will not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; except that the foregoing representations
and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or
omissions
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in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to
any Agent furnished to the Company in writing by such Agent
expressly for use therein.
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of
the Exchange Act, and none of such documents, when they were
filed with the Commission, contained an untrue statement of
a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such
documents are filed with the Commission will conform in all
material respects to the requirements of the Exchange Act,
as applicable, and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change,
or any development known by the Company (after diligent
inquiry) involving a prospective material adverse change, in
or affecting the business, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus;
and except as set forth, incorporated by reference or
contemplated in the Prospectus neither the Company nor any
of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken
as a whole.
(d) The Company and each of Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), DLJ Capital
Corporation, DLJ Mortgage Capital, Inc. and each of the
Company's other "significant subsidiaries" as such term is
defined in Rule 1-02 of Regulation S-X under the Securities
Act (collectively, the "Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation and has the corporate power and authority to
carry on business as it is currently being conducted and to
own, lease and operate its properties, all as described in
the Prospectus, and each is duly qualified and in good
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standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock
of, or other ownership interests in, each of the
Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the
Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature.
(f) The Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
purchasers thereof in accordance with this Agreement and any
applicable Terms Agreement, will be entitled to the benefits
of the Indenture, and will be valid and binding obligations
of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) This Agreement and any applicable Terms
Agreement each has been duly authorized, executed and
delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
(h) The Indenture has been duly qualified under the
Trust Indenture Act, and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The Notes will conform to the description
thereof contained in the Prospectus as amended or
supplemented, if applicable, in connection with the issuance
of Notes.
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(j) Neither the Company nor any of its Subsidiaries
is in violation of its respective certificate of
incorporation or bylaws or in default in the performance of
any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness
or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, and compliance by the Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or
other governmental body (except as such may be required
under the Securities Act or state securities or Blue Sky
laws) and will not conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
certificate of incorporation or bylaws of the Company or any
of its Subsidiaries or any agreement, indenture or other
instrument to which it or any of its Subsidiaries is a party
or by which it or any of its Subsidiaries or their property
is bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees
applicable to the Company any of its Subsidiaries or their
respective properties.
(l) Except as otherwise set forth or incorporated
by reference in the Prospectus, there are no material legal
or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described, filed or
incorporated by reference as required.
(m) Neither the Company nor any of its Subsidiaries
has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
nor any federal or state law relating to discrimination in
the hiring, promotion or pay of
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employees nor any applicable federal or state wages and
hours laws, nor any provisions of the Employee Retirement
Income Security Act or the rules and regulations promulgated
thereunder, which in each case might result in any material
adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole.
(n) The Company and each of its Subsidiaries has
such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has
fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company
and its Subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the
Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated costs
and liabilities (including, without limitation, any capital
or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries,
taken as a whole.
(p) Except as otherwise set forth or incorporated
by reference in the Prospectus or such as are not material
to the business, prospects, financial condition or results
of operation of the Company and its Subsidiaries, taken as a
whole, the Company and each of its Subsidiaries has good and
marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the
Registration Statement as being owned by it. All leases to
which the Company or any of its Subsidiaries is a party
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are valid and binding and no default has occurred or is
continuing thereunder, which might result in any material
adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole, and the Company and its
Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the
use made by the Company or such Subsidiary.
(q) The Company and each of its Subsidiaries
maintains reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the
Securities Act.
(s) The financial statements, together with related
schedules and notes forming part of or incorporated by
reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations
and changes in financial position of the Company and its
subsidiaries on the basis stated or incorporated by
reference in the Registration Statement at the respective
dates or for the respective periods to which they apply;
such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
involved, except as disclosed therein; and the other
financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) is,
in all material respects, accurately presented and prepared
on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries.
(t) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
(u) Except as described in the Prospectus, no
holder of any security of the Company has any right to
require registration of shares of common stock or any other
security of the Company.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
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(w) The Company and each of its Subsidiaries
maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(x) All material tax returns required to be filed
by the Company and each of its subsidiaries in any
jurisdiction have been filed, other than those filings being
contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees
and other charges due pursuant to such returns or pursuant
to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have
been provided.
2. Solicitations by Agents of Offers to Purchase; Purchases by Agent
as Principal. (a) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, each of
the Agents hereby severally and not jointly agrees, as agent of the Company,
to use its reasonable efforts to solicit offers to purchase the Notes from the
Company upon the terms and conditions set forth herein and in the Prospectus
as amended or supplemented from time to time.
So long as this Agreement shall remain in effect with respect to any
Agent, and subject to the reservations set forth in clauses (A) and (B) of the
second paragraph of this Agreement, the Company shall not, without the consent
of such Agent, solicit or accept offers to purchase, or sell, Notes or any
other debt securities with a maturity at the time of original issuance of nine
months or more except pursuant to this Agreement and any Terms Agreement, or
except pursuant to a private placement not constituting a public offering
under the Securities Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, each Agent will suspend
solicitation of
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offers to purchase Notes from the Company until such time as the Company has
advised such Agent or Agents that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any opinions, letters or certificates in accordance with
Sections 4(i), 4(j) and 4(k); provided that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered for the Notes or for a change that the Agents deem to be immaterial),
no Agent shall be required to resume soliciting offers to purchase Notes until
the Company has delivered such opinions, letters and certificates as such
Agent may reasonably request.
The Company agrees to pay each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note in an amount equal to the following applicable
percentage of the principal amount of such Note sold:
Commission
(percentage of
aggregate
principal amount
Maturities of Notes Sold of Notes sold)
------------------------- -------------
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......... .625%
From 10 years to less than 12 years........ .650%
From 12 years to less than 15 years........ .675%
From 15 years to less than 20 years........ .750%
From 20 years to and including 30 years.... .875%
The Agents are authorized to solicit offers to purchase Notes only in
the principal amount of $1,000 (or, if Notes are denominated in currencies,
currency units or composite currencies other than U.S. dollars, such other
minimum denomination specified in the applicable Pricing Supplement) or any
amount in excess thereof which is an integral multiple of $1,000 (or, if Notes
are denominated in currencies or currency units other than U.S. dollars,
integrals in excess of the minimum denomination specified in the applicable
Pricing
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Supplement). Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as agent that in
its judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase the Notes and may reject any such
offer in whole or in part. Each Agent shall have the right, in its sole
discretion, to reject any offer to purchase Notes, as a whole or in part, that
it reasonably considers to be unacceptable and any such rejection shall not be
deemed a breach of its agreements herein contained. The procedural details
relating to the issue and delivery of Notes sold by an Agent as agent and the
payment therefor are set forth in the Administrative Procedures (as
hereinafter defined).
(b) Each sale of Notes by the Company directly to any of you as
principal for resale to others shall be made in accordance with the terms of
this Agreement and (unless any such Agent shall otherwise agree) a Terms
Agreement which will provide for the sale and purchase of such Notes. For the
purposes of this Agreement, the terms "Agent" and "Agents" shall refer to you
acting solely in the capacity as agent for the Company hereunder and not as
principal, the term "Purchaser" shall refer to you acting solely as principal
hereunder and not as agent, and the term "you" shall refer to each of you
acting in both such capacities or in either such capacity; provided, however,
that no Additional Agent may act as principal hereunder. Each Terms Agreement
will take the form of either (i) a written agreement substantially in the form
of Exhibit A hereto or (ii) an exchange of any standard form of written
telecommunication between a Purchaser and the Company, and may also specify
certain provisions relating to the reoffering of such Notes by such Purchaser.
The commitment of any Purchaser to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein and in the
applicable Terms Agreement set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Purchaser pursuant thereto,
the price to be paid to the Company for such Notes, the maturity date of such
Notes, the interest rate or interest rate basis, if any, applicable to such
Notes, any other terms of such Notes, the time and date and place of delivery
of and payment for such Notes (the time and date of any and each such delivery
and payment, the "Time of Delivery"), any provisions relating to rights of,
and default by, underwriters acting together with such Purchaser in the
reoffering of Notes, and shall also specify any modification of the
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Unless otherwise specified in a
Terms Agreement, the procedural details relating to the issue and delivery of
Notes purchased by a Purchaser and the payment therefor shall be as set forth
in the Administrative Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of
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this Section 2, each Agent shall have complete discretion as to
the manner in which it solicits purchasers for the Notes and as to the
identity thereof.
(d) Administrative Procedures. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only
by written agreement of the Company and the Agents.
(e) Other Securities. The Company agrees to notify each Agent of
sales by the Company of Other Securities.
3. Commencement Date. The documents required to be delivered pursuant
to Section 6 hereof on the Commencement Date shall be delivered to the Agents
at the offices of Donaldson, Lufkin & Jenrette Securities Corporation, 277
Park Avenue, New York, New York 10172, at 11:00 a.m., New York City time, on
the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agents and the Company but in no event
shall be later than the day prior to the date on which solicitation of offers
to purchase Notes is commenced or the first date on which the Company accepts
an offer by any Agent to purchase Notes as principal (such time and date being
referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants and agrees
with each Agent:
(a)(i) To make no amendment or supplement to the
Registration Statement or the Prospectus prior to the
termination of the offering of the Notes pursuant to this
Agreement or any Terms Agreement which shall be disapproved
by any Agent after reasonable opportunity to comment
thereon, provided, however, that the foregoing shall not
apply to any of the Company's periodic filings with the
Commission described in subsection (iii) below, copies of
which filings the Company will cause to be delivered to the
Agents promptly after their transmission to the Commission
for filing; (ii) subject to the foregoing clause (i),
promptly to cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act and to
prepare, with respect to any Notes to be sold through or to
such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by
such Agent and to file such Pricing Supplement in accordance
with Rule 424(b) under the Securities Act; and (iii)
promptly to file all reports and any definitive proxy or
information
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<PAGE>
statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a Prospectus
is required in connection with the offering or sale of the
Notes. The Company will promptly advise each Agent (i) of
the filing of any amendment or supplement to the Basic
Prospectus or any amendment to the Registration Statement
and of the effectiveness of any such amendment to the
Registration Statement, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or any order preventing or
suspending the use of any Prospectus relating to the Notes
or the initiation or threatening of any proceeding for that
purpose, or of any request by the Commission for any
amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (iii) of the
receipt by the Company of any notification with respect to
any suspension of the qualification of the Notes for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose. The
Company agrees to use its best efforts to prevent the
issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or
of any notification suspending any such qualification and,
if issued, to use promptly its best efforts to obtain
withdrawal thereof as soon as possible. If the Basic
Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated
by reference in the Prospectus, no Agent shall be obligated
to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
(b) To endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as the Agents shall reasonably request and to
continue such qualification in effect so long as reasonably
required in connection with the distribution of the Notes
and to pay all fees and expenses (including fees and
disbursements of counsel to the Agents) reasonably incurred
in connection with such qualification and in connection with
the determination of the eligibility of the Notes for
investment under the laws of such jurisdictions as such
Agent may designate; provided that the Company shall not be
required to file a general consent to service of process in
any jurisdiction or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified.
(c) To furnish each Agent and counsel to the
Agents, at the expense of the Company, a signed copy of the
Registration
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<PAGE>
Statement (as originally filed) and each amendment thereto,
in each case including exhibits and documents incorporated
by reference therein and, during the period mentioned in
paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements
thereto) and documents incorporated by reference therein as
such Agent may reasonably request.
(d) If at any time when a Prospectus relating to
the Notes is required to be delivered under the Securities
Act, any event shall occur as a result of which the
Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances when such
Prospectus is delivered to a purchaser, not misleading, or,
if in the opinion of the Agents or the Company, it is
necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by
telephone (with confirmation in writing) and request each
Agent (i) in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Notes from the
Company; and (ii) to cease sales of any Notes such Agent may
then own as principal (and, if so notified in either case,
such Agent shall immediately cease such solicitations or
sales and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later). If
the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, as then amended or
supplemented, it shall so advise each Agent promptly by
telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the
Registration Statement or the Prospectus, as then amended or
supplemented, that will correct such statement or omission
or effect such compliance and will supply such amended or
supplemented Prospectus to the Agents in such quantities as
they may reasonably request. If any such amendment or
supplement and any documents, opinions, letters and
certificates furnished to the Agents pursuant to Sections
4(e), 4(i), 4(j) and 4(k) in connection with the preparation
and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the
Commission of such amendment or supplement to the Prospectus
or upon the effectiveness of an amendment to the
Registration Statement, the Agents will resume the
solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 4(d),
until the distribution of any Notes any Agent may own as
principal has been completed or in the event such Agent, in
the opinion of its counsel, is otherwise required to deliver
a Prospectus
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<PAGE>
in respect of a transaction in the Notes, if any event
described in this Section 4(d) occurs the Company will, at
its own expense, promptly prepare and file with the
Commission an amendment or supplement, satisfactory in all
respects to such Agent, that will correct such statement or
omission or effect such compliance, will supply such amended
or supplemented Prospectus to such Agent in such quantities
as such Agent may reasonably request and shall furnish to
such Agent pursuant to Sections 4(e), 4(i), 4(j) and 4(k)
such documents, certificates, opinions and letters as it may
request in connection with the preparation and filing of
such amendment or supplement.
(e) To furnish to the Agents during the term of
this Agreement such relevant documents and certificates of
officers of the Company relating to the business, operations
and affairs of the Company, the Registration Statement, the
Basic Prospectus, any amendments or supplements thereto, the
Indenture, the Notes, this Agreement, the Administrative
Procedures, any applicable Terms Agreement and the
performance by the Company of its obligations hereunder or
thereunder as the Agents may from time to time reasonably
request and shall notify the Agents promptly in writing of
any downgrading, or on its receipt of any notice of (i) any
intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement in the
rating accorded any of securities of, or guaranteed by, the
Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(f) To make generally available to its security
holders and to such Agent as soon as practicable earnings
statements which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter
of the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement with
respect to each sale of Notes.
(g) So long as any Notes are outstanding, to
furnish to such Agent copies of all reports or other
communications (financial or other) furnished to holders of
Notes and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the
Company is listed.
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<PAGE>
(h) That, from the date of any applicable Terms
Agreement with such Agent or other agreement by such Agent
to purchase Notes as principal and continuing to and
including the business day following the related Time of
Delivery, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Notes,
without the prior written consent of such Agent.
(i) That each time that (i) the Registration
Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement providing solely
for the specification of or a change in the interest rates,
redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem to be
immaterial), the Company shall furnish or cause to be
furnished forthwith to the Agents the written opinion of
Michael A. Boyd, the General Counsel of the Company, or
other counsel for the Company satisfactory to such Agent,
dated the date of such amendment or supplement, in form
satisfactory to the Agents, of the same tenor as the opinion
referred to in Section 6(b) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the date of such opinion; or, in lieu of
such opinion, counsel last furnishing such an opinion, may
furnish to the Agents a letter to the effect that such
Agents may rely on the opinion of such counsel which was
last furnished to such Agents to the same extent as though
it were dated the date of such letter (except that the
statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or
supplemented to date of delivery of such letter).
(j) That each time that the Registration Statement
or the Prospectus is amended or supplemented to set forth
amended or supplemental financial information or such
amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus,
the Company shall cause its independent public accountants,
forthwith to furnish each Agent a letter, dated the date of
the effectiveness of such amendment or the date of filing of
such supplement, in form satisfactory to such Agent, of the
same tenor as the letter referred to in Section 6(d) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated
by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such
letter, provided that if the Registration Statement or the
Prospectus is amended or supplemented solely to include or
incorporate by reference
17
<PAGE>
financial information as of and for a fiscal quarter, such
independent public accountants may limit the scope of such
letter, which shall be satisfactory in form to each Agent,
to the unaudited financial statements and the related
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" included in such amendment or
supplement, unless any other information included or
incorporated by reference therein of an accounting,
financial or statistical nature is of such a nature that, in
the reasonable judgment of any Agent, such letter should
cover such other information; provided further that, if
during the period from the date hereof to and including
September 30, 1996, no purchase of Notes by a Purchaser
pursuant to a Terms Agreement shall have taken place, then
the obligation of the Company's certified public accountants
to furnish such letters pursuant to this paragraph (i) shall
be suspended. Thereafter, upon the purchase of any Notes by
a Purchaser pursuant to a Terms Agreement, the Company's
certified public accountants shall furnish such letter as
would most recently have been issued pursuant to this
paragraph (i) if no suspension had occurred, and such
accountants' obligations under this paragraph (i) shall
resume.
(k) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by an amendment or supplement providing solely for a change
in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change
the Agents deem to be immaterial), the Company shall furnish
or cause to be furnished forthwith to the Agents a
certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement in form
satisfactory to the Agents, of the same tenor as the
certificates referred to in Section 6(e) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of delivery of such
certificate or to the effect that the statements contained
in the certificate referred to in Section 6(e) hereof which
was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that
such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended or
supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Notes is consummated,
pay all costs and expenses incident to the performance of its obligations
hereunder and under any applicable Terms Agreement, including without limiting
the generality of the foregoing, all costs and expenses: (i) incident to the
preparation,
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<PAGE>
issuance, execution, authentication and delivery of the Notes,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Notes under the laws of such jurisdictions as the Agents (or
in connection with any Terms Agreement, the applicable Agent) may designate
(including fees of counsel for the Agents (or such Agent) and their
disbursements), (iv) in connection with the listing of the Notes on any stock
exchange, (v) related to any filing with National Association of Securities
Dealers, Inc., (vi) in connection with the printing (including word processing
and duplication costs) and delivery of this Agreement, the Indenture, any Blue
Sky Memoranda and any Legal Investment Survey and the furnishing to the Agents
and dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided, (vii) payable to rating
agencies in connection with the rating of the Notes, (viii) the fees and
disbursements of counsel for the Agents incurred in connection with the
offering and sale of the Notes, including any opinions to be rendered by such
counsel hereunder and (ix) any advertising and out-of-pocket expenses incurred
by the Agents.
6. Conditions. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the Notes, the
obligation of any Purchaser to purchase Notes pursuant to any Terms Agreement,
and the obligation of any other purchaser to purchase Notes shall in each case
be subject (1) to the condition that all representations and warranties of the
Company herein and all statements of officers of the Company made in any
certificate furnished pursuant to the provisions hereof are true and correct
(i) in the case of an Agent's obligation to solicit offers to purchase Notes,
at and as of such Solicitation Time and (ii) in the case of any Purchaser's or
any other purchaser's obligation to purchase Notes, at and as of the time the
Company accepts the offer to purchase such Notes and, as the case may be, at
and as of the related Time of Delivery or time of purchase; (2) to the
condition that at or prior to such Solicitation Time, time of acceptance, Time
of Delivery or time of purchase, as the case may be, the Company shall have
complied with all its agreements and all conditions on its part to be
performed or satisfied hereunder; and (3) to the following additional
conditions when and as specified (it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
discretionary judgment on behalf of the Company or any purchaser in respect of
the fulfillment of any such condition):
(a) Prior to such Solicitation Time or
corresponding Time of Delivery or time of purchase, as the
case may be:
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<PAGE>
(i) the Prospectus as amended or
supplemented (including, if applicable,
the Pricing Supplement) with respect to
such Notes shall have been filed with the
Commission pursuant to Rule 424(b) under
the Securities Act within the applicable
time period prescribed for such filing by
the rules and regulations under the
Securities Act; no stop order suspending
the effectiveness of the Registration
Statement shall have been issued and no
proceedings for that purpose shall have
been commenced or shall be pending before
or contemplated by the Commission;
(ii) there shall not have been any
downgrading, nor shall any notice have
been given of any intended or potential
downgrading or any review or possible
change that does not indicate the
direction of the possible change, in the
rating accorded any of the Company's
securities by any "nationally recognized
statistical rating organization", as such
term is defined for purposes of Rule
436(g)(2) under the Securities Act
subsequent to the date hereof;
(iii) there shall not have been any
change, or any development involving a
prospective adverse change, in the capital
stock or in the long-term debt of the
Company or any of its Subsidiaries from
that set forth or incorporated by
reference in the Registration Statement
and Prospectus which would, in the opinion
of the Agents, materially impair the
investment quality of the Notes;
(iv) the Company and its Subsidiaries
shall have no liability or obligation,
direct or contingent, which is material to
the Company and its Subsidiaries, taken as
a whole, other than those reflected or
incorporated by reference in the
Registration Statement and the Prospectus;
(v) there shall not have been any adverse
change or development involving a
prospective adverse change, in the
condition, financial or otherwise, of the
Company or any of its Subsidiaries or the
earnings, affairs, or business prospects
of the Company or any of its Subsidiaries,
whether or not
20
<PAGE>
arising in the ordinary course of
business, which would, in the opinion of
the Agents, materially impair the
investment quality of the Notes; and
(vi)(A) there shall not have been any
outbreak or escalation of hostilities or
other national or international calamity
or crisis or change in economic conditions
or in the financial markets of the United
States or elsewhere that, in the judgment
of the applicable Agent, is material and
adverse and would, in the judgment of the
applicable Agent, make it impracticable to
market the Notes on the terms and in the
manner contemplated in the Prospectus, (B)
the suspension or material limitation of
trading in securities on the New York
Stock Exchange, the American Stock
Exchange or the NASDAQ National Market
System or limitation on prices for
securities on any such exchange or
National Market System, (C) the enactment,
publication, decree or other promulgation
of any federal or state statute,
regulation, rule or order of any court or
other governmental authority which in the
opinion of the Agents materially and
adversely affects, or will materially and
adversely affect, the business or
operations of the Company or any
Subsidiary, (D) the declaration of a
banking moratorium by either federal or
New York State authorities or (E) the
taking of any action by any federal, state
or local government or agency in respect
of its monetary or fiscal affairs which in
the opinion of the Agents has a material
adverse effect on the financial markets in
the United States.
(b) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, Michael A. Boyd, General Counsel of the
Company, shall have furnished to the Agents or the
Purchaser, as the case may be, his written opinion, dated
the Commencement Date or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agents or
such Purchaser, as the case may be, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing
under the laws of
21
<PAGE>
the State of Delaware and has the corporate power
and authority required to carry on its business as
it is currently being conducted and to own, lease
and operate its properties;
(ii) each of the Subsidiaries has been duly
incorporated, is validly existing as a corporation
in good standing under the laws of its jurisdiction
of incorporation and has the corporate power and
authority required to carry on its Business as it
is currently being conducted and to own, lease
and operate its properties;
(iii) the Company and each of its Subsidiaries is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each
jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so
qualified would not have a material adverse effect
on the Company and its Subsidiaries, taken as a
whole;
(iv) all of the outstanding shares of capital
stock of, or other ownership interests in, each of
the Subsidiaries have been duly and validly
authorized and issued, are fully paid and
non-assessable and are owned by the Company, free
and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(v) the Notes have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and
paid for by the purchasers thereof in accordance
with the terms of this Agreement and any applicable
Terms Agreement, will be entitled to the benefits
of the Indenture and will be valid and binding
obligations of the Company, enforceable against the
Company in accordance with their terms except (a)
as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies
generally and (b) as such enforcement may be
limited by general principles of equity, regardless
of whether enforcement is sought in a proceeding at
law or in equity;
(vi) this Agreement and any applicable Terms
Agreement each has been duly authorized, executed
and delivered by the Company and is a valid and
binding agreement of the
22
<PAGE>
Company, except as rights to indemnity and
contribution thereunder may be limited by
applicable law;
(vii) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company
and (assuming the due authorization, execution and
delivery thereof by the Trustee) is a valid and
binding agreement of the Company, enforceable in
accordance with its terms except (a) as such
enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws affecting creditors' rights and remedies
generally and (b) as such enforcement may be
limited by general principles of equity, regardless
of whether enforcement is sought in a proceeding at
law or in equity;
(viii) the Registration Statement has become
effective under the Securities Act, no stop order
suspending its effectiveness has been issued and no
proceedings for that purpose are, to the knowledge
of such counsel, pending before or contemplated by
the Commission;
(ix) to the best of such counsel's knowledge, the
Company is not in violation of its certificate of
incorporation or by-laws, except for such
violations that would not have a material adverse
effect on the Company and its Subsidiaries, taken
as a whole;
(x) to the best of such counsel's knowledge, none
of the Subsidiaries is in violation of its
respective certificate of incorporation or by-laws,
except for such violations that would not have a
material adverse effect on the Company and its
Subsidiaries, taken as a whole, and neither the
Company nor any of its Subsidiaries is in default
in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or
any other agreement, indenture or instrument
material to the condition of the business of the
Company and its Subsidiaries, taken as a whole, to
which the Company or any of its Subsidiaries is a
party or by which the Company or any of its
Subsidiaries or any of their respective properties
are bound;
(xi) the execution, delivery and performance by
the Company of this Agreement, the Notes, the
Indenture and
23
<PAGE>
any applicable Terms Agreement and compliance by
the Company with all the provisions hereof and
thereof will not, to the best of such counsel's
knowledge based solely upon due inquiry of
responsible officers of the Company, (A) require
any consent, approval, authorization or other order
of any court, regulatory body, administrative
agency or other governmental body (except such as
may be required under the Securities Act, the Trust
Indenture Act or state securities or Blue Sky laws
or by the National Association of Securities
Dealers, Inc.), except where the failure to obtain
such consents, approvals, authorizations or other
orders would not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole;
(B) conflict with or constitute a breach of any of
the terms or provisions of the certificate of
incorporation or bylaws of the Company or any of
its Subsidiaries; (C) violate or conflict with any
laws, administrative regulations or, to the best of
such counsel's knowledge, rulings or court decrees
applicable to the Company or any of its
Subsidiaries or their respective properties except
for such violations or conflicts that would not
have a material adverse effect on the Company and
its Subsidiaries, taken as a whole; or (D) to the
best of such counsel's knowledge, conflict with or
constitute a breach of any of the terms or
provisions of, or a default under, any agreement,
indenture or other instrument material to the
condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the
Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or any
of their respective properties are bound;
(xii) to the best of such counsel's knowledge, the
Company and each of its Subsidiaries has such
permits, licenses, franchises and authorizations
(collectively, "permits") of and from, and has made
such declarations and filings with, governmental or
regulatory authorities, including without
limitation, state regulatory organization, as are
necessary to own, lease and operate its respective
properties and to conduct its business in the
manner described or incorporated by reference in
the Prospectus, except where the failure to obtain
such permits or make such declarations and filings
would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole; to
the best of such counsel's knowledge, the Company
and each of its Subsidiaries has fulfilled and
24
<PAGE>
performed all of its obligations with respect to
such permits, except where failure to do so would
not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole, and no
event has occurred which allows, or after notice or
lapse of time would allow, revocation or
termination thereof or results in any other
impairment of the rights of the holder of any such
permit, except where such revocation, termination
or impairment would not have a material adverse
effect on the Company and its Subsidiaries, taken
as a whole, subject, in each case, to such
qualifications as may be set forth or incorporated
by reference in the Prospectus; and, to the best of
such counsel's knowledge, except as described or
incorporated by reference in the Prospectus, such
permits contain no restrictions that are materially
burdensome to the Company or any of its
Subsidiaries;
(xiii) to the best of such counsel's knowledge,
all leases to which the Company or any of its
Subsidiaries is a party are valid and binding and
no default has occurred or is continuing thereunder
which might result in any material adverse change
in the business, prospects, financial condition or
results of operation of the Company and its
Subsidiaries, taken as a whole, and the Company and
its Subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which any of
them is a party as lessee with such exceptions as
do not materially interfere with the use made by
the Company or such Subsidiary;
(xiv) the statements (A) in the Prospectus under
the captions "Description of Notes", "Description
of Debt Securities" and "Plan of Distribution", (B)
incorporated by reference in the Prospectus from
Item 3 of Part I of the Company's most recent
Annual Report on Form 10-K, if any, for the most
recently completed fiscal year of the Company, (C)
incorporated by reference in the Prospectus from
Item 1 of Part II of the Company's Quarterly
Reports on Form 10-Q, if any, filed since such
Annual Report, (D) incorporated by reference in the
Prospectus from Item 5 of the Company's Current
Reports on Form 8-K, if any, filed since such
Annual Report and (E) in the Registration Statement
in Item 15 of Part II, insofar as such statements
constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the
25
<PAGE>
information called for with respect to such legal
matters, documents and proceedings;
(xv) to the best of such counsel's knowledge,
based solely upon due inquiry of responsible
officers of the Company, there is no legal or
governmental proceeding pending or threatened to
which the Company or any of its subsidiaries is a
party or to which any of their respective property
is subject which is required to be described or
incorporated by reference in the Registration
Statement or the Prospectus and is not so described
or incorporated by reference, or of
any contract or other document which is required to
be described or incorporated by reference in the
Registration Statement or the Prospectus or is
required to be filed as an exhibit to the
Registration Statement which is not described or
filed or incorporated by reference as required;
(xvi) the Company is not an "investment company"
within the meaning of the Investment Company Act of
1940, as amended;
(xvii) to the best of such counsel's knowledge,
after due inquiry of responsible officers of the
Company, no holder of any security of the Company
has any right to require registration of shares of
common stock or any other security of the Company
except as disclosed or incorporated by reference in
the Prospectus;
(xviii) each document incorporated by reference in
the Registration Statement and the Prospectus
(except for the financial statements included
therein as to which such counsel need express no
opinion) complied as to form when filed with the
Commission in all material respects with the
Exchange Act; and
(xix) (1) the Registration Statement and the
Prospectus and any supplement or amendment thereto
(except for financial statements as to which no
opinion need be expressed) comply as to form in all
material respects with the Securities Act, and (2)
such counsel believes that (except for financial
statements, as aforesaid and except for the part of
the Registration Statement that constitutes the
Form T-1) the Registration Statement and the
prospectus included therein at the time the
Registration Statement became effective did not
contain any untrue statement of a
26
<PAGE>
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, and that the
Prospectus, as amended or supplemented, if
applicable (except for financial statements, as
aforesaid) does not contain any untrue statement of
a material fact or omit to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading.
In giving such opinion with respect to the matters
covered by clause (xix) such counsel may state that his
opinion and belief
are based upon his participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the
contents thereof, but are without independent check or
verification except as specified.
(c) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, Davis Polk & Wardwell, counsel to the
Agents, shall have furnished to the Agents or such
Purchaser, as the case may be, their opinion, dated the
Commencement Date or Time of Delivery, as the case may be,
in form and substance satisfactory to such Agents or such
Purchaser, as the case may be, as to the matters referred to
in clauses (v), (vi), (vii), (viii), (xiv) (but only with
respect to the statements under the caption "Description of
Notes", "Description of Debt Securities" and "Plan of
Distribution") and (xix) of the foregoing paragraph (b). In
giving such opinion with respect to the matters covered by
clause (xix) such counsel may state that their opinion and
belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check
or verification except as specified.
(d) On the Commencement Date, the Company's
independent certified public accountants who have certified
the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration
Statement and Prospectus, as then amended or supplemented,
shall have furnished to the Agents a letter, dated the
Commencement Date, in form and substance satisfactory to the
Agents, containing statements and
27
<PAGE>
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the
financial statements and certain financial information
relating to the Company contained in or incorporated by
reference in the Registration Statement and the Prospectus,
as then amended or supplemented.
(e) On the Commencement Date, and in the case of a
purchase of Notes by a Purchaser pursuant to a Terms
Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the corresponding
Time of Delivery, the Agents or such Purchaser, as the case
may be, shall have received a certificate or certificates
signed by an executive officer of the
Company, dated the Commencement Date or Time of Delivery, as
the case may be, to the effect set forth in Section 6(a)(i),
(ii), (iii), (iv) and (v) above and to the further effect
that (1) the representations and warranties of the Company
contained herein are true and correct on and as of the
Commencement Date or Time of Delivery, as the case may be,
as if made on and as of such date and (2) the Company has
complied with all agreements and all conditions on its part
to be performed or satisfied hereunder or under the
applicable Terms Agreement or other agreement at or prior to
the Commencement Date or Time of Delivery, as the case may
be.
(f) On the Commencement Date, Davis Polk &
Wardwell, special tax counsel to the Company, shall have
furnished an opinion dated the Commencement Date confirming
that the information set forth in the Prospectus under the
caption "United States Tax Considerations" is accurate in
all material respects.
(g) On the Commencement Date and at each Time of
Delivery, the Company shall have furnished to the Agents or
the Purchaser, as the case may be, such further
certificates, information and documents as such Agents or
such Purchaser, as the case may be, may reasonably request.
7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who
controls any Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished any
28
<PAGE>
amendments or supplements thereto) or any preliminary
prospectus, 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, liabilities
or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information relating to any Agents furnished in writing to
the Company by or on behalf of any Agent expressly for use
therein.
(b) In case any action shall be brought against any Agent or any
person controlling such Agent, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company,
such Agent shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses.
Any Agent or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Agent or such controlling person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both such Agent or such controlling person and the Company and such Agent or
such controlling person shall have been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to assume the defense of such action on behalf of such
Agent or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Agents and controlling persons, which firm shall be
designated in writing by Donaldson, Lufkin & Jenrette Securities Corporation,
subject to approval by a majority of such Agents, and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without its written
consent but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Agent and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and
an indemnified party shall have requested the indemnifying party to reimburse
the indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that
29
<PAGE>
it shall be liable for any settlement of any action effected without its
written consent if (i) such settlement is entered into more than ten business
days after the receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall have failed to reimburse the indemnified
party in accordance with such request for reimbursement prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(c) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Agent
but only with reference to information relating to such Agent furnished in
writing by or on behalf of such Agent expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any such officer
or any person controlling the Company based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which indemnity may
be sought against any Agent, such Agent shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, such Agent shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Agent), and the
Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Agent, by Section 7(b)
hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Agents in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Agents shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before
30
<PAGE>
deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Agents from the offering of the
Notes, bear to the total price to the public of the Notes. The relative fault
of the Company and the Agents shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by the
Company or the Agents and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, no
Agent shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by or sold through such
Agent and distributed to the public exceeds the amount of any damages which
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective principal amount of Notes purchased by or through each of the
Agents hereunder and not joint.
8. Termination. (a) This Agreement may be terminated at any time (i)
by the Company with respect to any or all of the Agents or (ii) by any Agent
with respect to itself only, in each case upon the giving of written notice of
such termination to each other party hereto. Any Terms Agreement shall be
subject to termination in the absolute discretion of the Agent or Agents that
are parties thereto on the terms set forth or incorporated by reference
therein. The termination of this Agreement shall not require termination of
any agreement by an Agent to purchase Notes as principal (whether pursuant to
a Terms Agreement or otherwise) and the termination of such an agreement shall
not require termination of this Agreement. In the event this Agreement is
terminated with respect to any Agent, (x) this Agreement shall remain in full
force and effect with respect to any Agent as to which such termination has
not occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously
accrued or which relate to Notes which are already
31
<PAGE>
issued, agreed to be issued or the subject of a pending offer at the time of
such termination and (z) in any event, the provisions of the fourth paragraph
of Section 2(a), Section 2(c), the last sentence of Section 4(d) and Sections
4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall survive; provided that if at the time
of termination an offer to purchase Notes has been accepted by the Company but
the time of delivery to the purchaser or its agent of such Notes has not yet
occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(h)
through 4(k) and 6 shall also survive. If any Terms Agreement is terminated,
the provisions of the last sentence of Section 4(d) and Sections 2(b), 2(d),
4(a), 4(b), 4(e), 4(g) through 4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall
have been incorporated by reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by
an Agent or Agents because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement or any Terms Agreement or if for any reason the Company shall be
unable to perform its obligations under this Agreement or any Terms Agreement
or any condition of any Agent's obligations cannot be fulfilled, the Company
agrees to reimburse each Agent or such Agents as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably
incurred by such Agent or Agents in connection with this Agreement or the
offering of Notes.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Notes from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Notes. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company
was solicited by such Agent and has been accepted by the Company, but such
Agent shall not have any liability to the Company in the event such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal shall remain in full force and effect regardless of any termination
of this
32
<PAGE>
Agreement or any such agreement, any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Notes.
11. Notices. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid),
telex or telecopier. Communications to the Agents will be sent, in the case of
Donaldson, Lufkin & Jenrette Securities Corporation, to 277 Park Avenue, New
York, New York 10172, Telecopier: (212) 892-8244; Attention: Roger Thompson;
BancAmerica Securities, Inc., 231 S. LaSalle, Chicago, Illinois 60697,
Telecopier: (312) 828- 3012; Banque Paribas, 33 Wigmore Street, London,
England W1H0BN, Telecopier: 011-44-171-895-2555; Attention: Daniele Cogoi;
Chase Securities Inc., 270 Park Avenue, New York, New York 10017, Telecopier:
(212) 834- 6564); Attention: Robert L. Taylor; Citicorp Securities, Inc., 399
Park Avenue, New York, New York 10043, Commscan: (212) 747-0343; Telecopier:
(212) 291-3190; Attention: MTN Desk Head; Credit Lyonnais Securities (USA)
Inc., 1301 Avenue of the Americas, New York, New York 10019, Telecopier: (212)
261-3575; Attention: Debt Capital Markets Syndicate; Deutsche Morgan Grenfell
Inc., 31 West 52nd Street, New York, New York 10019, Telecopier: (212) 469-
7875; Attention: Debt Capital Markets Syndicate; First Chicago Capital
Markets, Inc., One First National Plaza, Chicago, Illinois 60670, Telecopier:
(312) 732- 7954; Attention: Medium Term Note Desk; NationsBanc Capital
Markets, Inc., NC1-007-07-01, 100 North Tryon Street, Charlotte, North
Carolina 28255, Telecopier: (704) 388-9939; Attention: MTN Product Manager;
Societe Generale Securities Corporation, 1221 Avenue of the Americas, New
York, New York 10020, Telex: (212) 278-5450; Telecopier: (212) 278-5460;
Attention: Timothy B. Moyer; UBS Securities LLC, 299 Park Avenue, New York,
New York 10171, Telex: (212) 821-4542; Telecopier: (212) 821-3667 Attention:
Richard Messina; and, if sent to the Company, to 277 Park Avenue, New York,
New York 10172; Telecopier: (212) 892-4670; Attention: Charles Hendrickson,
Senior Vice President and Treasurer.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, on
33
<PAGE>
7 days prior written notice to the Agents but without the consent of any
Agent, amend this Agreement to add as a party hereto one or more additional
firms registered under the Exchange Act, whereupon each such firm shall become
an Agent hereunder on the same terms and conditions as the other Agents that
are parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any
day which is not a Saturday or Sunday or legal holiday or a day on which banks
in New York City are required or authorized by law, regulation or executive
order to close.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
If the foregoing is in accordance with your understanding, please
sign and return to us 13 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
34
<PAGE>
Very truly yours,
DONALDSON, LUFKIN & JENRETTE, INC.
By:
-----------------------------------
Name:
Title:
Accepted in New York, New York, as of the date first above written:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
-----------------------------------
Name:
Title:
BANCAMERICA SECURITIES, INC.
By:
-----------------------------------
Name:
Title:
BANQUE PARIBAS
By:
-----------------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
-----------------------------------
Name:
Title:
35
<PAGE>
CITICORP SECURITIES, INC.
By:
-----------------------------------
Name:
Title:
CREDIT LYONNAIS SECURITIES (USA) INC.
By:
-----------------------------------
Name:
Title:
DEUTSCHE MORGAN GRENFELL
By:
-----------------------------------
Name:
Title:
FIRST CHICAGO CAPITAL MARKETS INC.
By:
-----------------------------------
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.
By:
-----------------------------------
Name:
Title:
SOCIETE GENERALE SECURITIES CORPORATION
By:
-----------------------------------
Name:
Title:
36
<PAGE>
UBS SECURITIES LLC
By:
-----------------------------------
Name:
Title:
37
<PAGE>
EXHIBIT A
---------
[Principal Amount]
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
____________ ___, 199_
DONALDSON, LUFKIN & JENRETTE, INC.
277 Park Avenue
New York, New York 10172
Attention:
Re: Distribution Agreement dated as of
March __, 1997 (the "Distribution Agreement")
The undersigned agrees to purchase Medium-Term Notes having the
following terms:
<PAGE>
<TABLE>
<CAPTION>
FLOATING RATE FIXED RATE AMORTIZING DUAL CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
- ---------- ------------- ----------- ---------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Principal Amount: Interest Rate Basis or Interest Rate: % Amortization Face Amount Currency: Index Currency:
Bases: Schedule Face Amount Currency Base Rate:
Purchase If LIBOR:
Price: % [ ] LIBOR Reuters
[ ] LIBOR Telerate
Settlement Date Index Maturity: Optional Payment Currency: Determination Agent:
and Time:
Place of Delivery: Spread (plus Designated Exchange Rate:
or minus): %
Original Issue Spread Option Election Date(s):
Date: Multiplier: %
Specified Currency: Initial Interest Option Value Calculation
[ ] U.S. dollars Rate: % Agent:
[ ] Other:
Authorized Initial Interest
Denomination: Reset Date:
[ ] $1,000 and Interest Reset
integral Date(s)
multiples
thereof
[ ] Other:
Maturity Date: Maximum Interest
Rate: %
Interest Minimum Interest
Payments Date(s): Rate: %
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
FLOATING RATE FIXED RATE AMORTIZING DUAL CURRENCY
ALL NOTES: NOTES: NOTES: NOTES: NOTES: INDEXED NOTES:
- ---------- ------------- ----------- ---------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Optional Repayment INTEREST
Date(s): CATEGORY:
Initial Redemption [ ] Regular Floating
Date: Rate Note
[ ] Floating Rate/Fixed
Initial Redemption Rate Note
Percentage: % Fixed Rate
Commencement
Annual Redemption Date:
Percentage Fixed Rate
Reduction: % Interest: %
[ ] Inverse Floating
[ ] Original Issue Rate Note
Discount Note Fixed Interest
Issue Price: % Rate:
[ ] Original Issue
Exchange Rate Discount Note
Agent: Issue Price:
Other Provisions:
</TABLE>
3
<PAGE>
[The certificate referred to in Section 6(e) of the Distribution
Agreement and the opinions referred to in Sections 6(b) and 6(c) of the
Distribution Agreement will be required.]
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11,
12 and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force
and effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion
on the terms incorporated by reference herein. If this Agreement is so
terminated, the provisions set forth in the last sentence of Section 8 of the
Distribution Agreement shall survive for the purposes of this Agreement.
[NAME OF AGENT(S)]
By
-----------------------
Name:
Title:
Accepted:
DONALDSON, LUFKIN & JENRETTE, INC.
By
--------------------------------
Name:
Title:
4
<PAGE>
EXHIBIT B
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
--------------------------------------
The Medium-Term Notes (the "Notes"), are to be offered on a continuous
basis by Donaldson, Lufkin & Jenrette, Inc. (the "Company"). Each of Donaldson,
Lufkin & Jenrette Securities Corporation, BancAmerica Securities, Inc., Banque
Paribas, Chase Securities Inc., Citicorp Securities, Inc., Credit Lyonnais
Securities (USA) Inc., Deutsche Morgan Grenfell Inc., First Chicago Capital
Markets, Inc., NationsBanc Capital Markets, Inc., Societe Generale Securities
Corporation and UBS Securities LLC (each, an "Agent") has agreed to solicit
offers to purchase the Notes in registered form. The Notes are being sold
pursuant to a Distribution Agreement dated as of April 8, 1997 (the
"Agreement") between the Company and the Agents. In the Agreement, each Agent
has agreed to use its reasonable efforts to solicit purchases of the Notes.
Each Agent, as principal, may purchase Notes for its own account and if it does
so, the Company and such Agent will enter into a terms agreement (each, a
"Terms Agreement"), as contemplated by the Agreement.
The Notes will be issued under an Indenture dated as of October 25,
1995 (the "Indenture") between the Company and The Bank of New York, as trustee
(the "Trustee"). The Bank of New York (the "Bank") will be the Registrar,
Calculation Agent, Authenticating Agent and Paying Agent for the Notes, and
will perform the duties specified herein. Each Note will bear interest at
either a fixed rate (the "Fixed Rate Notes"), or a floating rate (the "Floating
Rate Notes"). The Notes will be issued in U.S. dollars or other currencies,
currency units or composite currencies (the "Specified Currency"). Each Note
will be represented by either a Global Security (as defined below) delivered to
the Bank, as agent for The Depository Trust Company
<PAGE>
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate issued in definitive form delivered to the holder
thereof or a person designated by such holder (a "Certificated Note").
Certificated Notes will not be exchangeable for Book-Entry Notes, and
Book-Entry Notes will not be exchangeable for and will not otherwise be
issuable as Certificated Notes except in limited circumstances.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof as they may subsequently be amended as
the result of changes in DTC'S operating procedures, and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Unless otherwise defined herein, terms defined in the Indenture
or the Notes shall be used herein as therein defined.
B-2
<PAGE>
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Bank will perform
the custodial, document control and administrative functions described below,
in accordance with its respective obligations under a Letter of Representation
from the Company and the Bank to DTC, dated as of the date of the Agreement
(the "Letter of Representation"), and a Medium-Term Note Certificate Agreement
between the Bank and DTC, dated as of April 14, 1989, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000
principal amount (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in such
Specified Currency) of all such Notes that have the
same Purchase Price, Settlement Date, Maturity Date,
redemption or repayment provisions, Interest Payment
Date(s), Original Issue Date, original issue discount
provisions (if any), and, in the case of Fixed Rate
Notes, Interest Rate, modified payment upon redemption,
repayment or acceleration (if any), amortization
schedule (if any) or, in the case of Floating Rate
Notes, Initial Interest Rate, Interest Payment Period,
Calculation Agent, Interest Rate Basis, Index
B-3
<PAGE>
Maturity, Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any), Alternate Rate
Event Spread (if any), Minimum Interest Rate (if any)
and Maximum Interest Rate (if any), Index currency (if
any) and, in each case, any other relevant terms
(collectively "Terms"). Each Global Security will be
dated and issued as of the date of its authentication
by the Bank. Each Global Security will bear an
"Interest Accrual Date," which will be (i) with respect
to any Global Security (or any portion thereof) issued
on any date of settlement, its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest had been paid or duly
provided for on the predecessor Global Security or
Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor
Global Security), regardless of the date of
authentication of such subsequently issued Global
Security. No Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry Notes or (ii)
any Certificated Note.
The Company has arranged with the CUSIP Numbers Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series of
approximately 900 CUSIP numbers (including tranche
numbers) for assignment to the Global Securities
representing the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a written list
of each series of reserved CUSIP numbers and has
delivered to the Bank and DTC the written list of 900
CUSIP numbers of such series. The Bank will assign
CUSIP numbers to Global Securities as described below
under Settlement Procedure "B". DTC will notify the
CUSIP Service Bureau periodically of the CUSIP numbers
that the Bank has assigned to Global Securities. At any
time when fewer than 100 of the reserved CUSIP numbers
of either series remain unassigned to Global
Securities, the Bank shall so advise the Company and,
if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Company
shall deliver a list of such additional CUSIP numbers
to the Bank and DTC.
B-4
<PAGE>
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security
register maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC with respect
to such Book-Entry Note (the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner in such
Note in the account of such Participants. The ownership
interest of such beneficial owner in such Note will be
recorded through the records of such Participants or
through the separate records of such Participants and
one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Book-Entry Note.
B-5
<PAGE>
Exchanges: The Bank may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent Book-Entry
Notes having the same Terms and for which interest has
been paid to the same date, (ii) a date, occurring at
least thirty days after such written notice is
delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new
CUSIP number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send
to its Participants (including the Bank) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, the Bank will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Bank will
exchange such Global Securities for a single Global
Security bearing the new CUSIP number and a new
Interest Accrual Date, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed
U.S.$200,000,000 (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in such
Specified Currency) in aggregate principal amount, one
Global Security will be authenticated and issued to
represent each U.S. $200,000,000 principal amount (or,
if the Specified Currency is other than U.S. dollars,
the equivalent thereof in such Specified Currency) of
the exchanged Global Security and an additional Global
Security will be authenticated and issued to represent
any remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months
or more from its date of issue.
Currency: Book-Entry Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
B-6
<PAGE>
Notice of Redemption The Bank will give notice to DTC prior to each
and Repayment Dates: redemption date or repayment date (as specified in the
Note), if any, at the time and in the manner set forth
in the Letter of Representation.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Book-Entry Notes will be issued in
denominations of $1,000 (or, if the Specified Currency
is other than U.S. dollars, the minimum denomination
thereof specified in the applicable Pricing Supplement)
or any amount in excess thereof which is an integral
multiple of $1,000 (or, if the Specified Currency is
other than U.S. dollars, integral multiples of such
minimum denomination thereof specified in the
applicable Pricing Supplement). Global Securities will
be denominated in principal amounts not in excess of
U.S. $200,000,000 (or, if the Specified Currency is
other than U.S. dollars, the equivalent thereof in such
Specified Currency). If one or more Book-Entry Notes
having an aggregate principal amount in excess of U.S.
$200,000,000 (or, if the Specified Currency is other
than U.S. dollars, the equivalent thereof in such
Specified Currency) would, but for the preceding
sentence, be represented by a single Global Security,
then one Global Security will be issued to represent
each U.S. $200,000,000 principal amount (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) of such
Book-Entry Note or Notes and an additional Global
Security will be issued to represent any remaining
principal amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities representing
such Book-Entry Note or Notes shall be assigned the
same CUSIP number.
B-7
<PAGE>
Interest: General. Unless otherwise specified in the applicable
Pricing Supplement, interest on each Book-Entry Note
will accrue from the Interest Accrual Date of the
Global Security representing such Book-Entry Note. Each
payment of interest on a Book-Entry Note will include
interest accrued from and including the immediately
preceding Interest Payment Date in respect of which
interest has been paid or duly made available for
payment (or from and including the date of issue, if no
interest has been paid with respect to such Book-Entry
Note) to but excluding the related Interest Payment
Date or the Maturity Date, as the case may be. Interest
payable at the maturity or upon redemption or repayment
of a Book-Entry Note will be payable to the person to
whom the principal of such Note is payable. Standard &
Poor's Corporation will use the information received in
the pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other information
regarding the related Global Security in the
appropriate weekly bond report published by Standard &
Poor's Corporation.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
B-8
<PAGE>
Fixed Rate Book-Entry Notes. Unless otherwise specified
in the applicable Pricing Supplement, Interest Payment
Dates for Fixed Rate Book-Entry Notes will be June 15
and December 15 of each year; provided that, in
addition to other amounts due and payable on any
Maturity Date, interest accrued from and including the
immediately preceding Interest Payment Date shall be
paid on such Maturity Date. In the event that any
Interest Payment Date or Maturity Date for a Fixed Rate
Book-Entry Note is not a Business Day, the payment due
on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date or Maturity Date to such next succeeding
Business Day. The first payment of interest on any
Fixed Rate Book-Entry Note issued between a Record Date
and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding
Record Date.
Floating Rate Book-Entry Notes. Except as provided in
the applicable Pricing Supplement, interest will be
payable in the case of Floating Rate Book-Entry Notes
which reset (i) daily, weekly or monthly, on a Business
Day that occurs in each month or that occurs in each
third month, as specified in the applicable Pricing
Supplement; (ii) quarterly, on a Business Day that
occurs in each third month, as specified in the
applicable Pricing Supplement; (iii) semiannually, on a
Business Day that occurs in each of two months of each
year, as specified in the applicable Pricing
Supplement; and (iv) annually, on a Business Day that
occurs in one month of each year, as specified in the
applicable Pricing Supplement (each, an "Interest
Payment Date"), and, in each case, on the Maturity
Date. If an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is not a
Business Day, such Interest Payment Date will be the
next succeeding Business Day and no interest shall
accrue for the period from and after such Interest
Payment Date, except that if such Note is a LIBOR Note
and such Business Day falls in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day. In the case of a
Floating Rate Book-Entry Note issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
B-9
<PAGE>
Notice of Interest Payment and Record Dates. On the
first Business Day of January, April, July and October
of each year, the Bank will deliver to the Company and
DTC a written list of Record Dates and Interest Payment
Dates that will occur with respect to Book-Entry Notes
during the three-month period beginning on such first
Business Day.
Calculation of Fixed Rate Book-Entry Notes. Unless otherwise specified
Interest: in the applicable Pricing Supplement, interest on Fixed
Rate Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
Floating Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Book-Entry Notes will
be determined as set forth in the form of such Notes.
Interest on Floating Rate Book-Entry Notes will be
calculated on the basis of actual days elapsed and a
year of 360 days except that in the case of Treasury
Rate Notes, interest will be calculated on the basis of
the actual number of days in the year.
Payments of Principal Payments of Interest. Promptly after each Record Date,
and Interest: the Bank will deliver to the Company and DTC a written
notice specifying by CUSIP number the amount of
interest to be paid on each Global Security other than
an Amortizing Note on the following Interest Payment
Date (other than an Interest Payment Date coinciding
with maturity or any earlier redemption or repayment
date) and the total of such amounts. DTC will confirm
the amount payable on each such Global Security on such
Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. In
the case of Amortizing Notes, the Bank will provide
separate written notice to DTC prior to each Interest
Payment Date at the time and in the manner set forth in
the Letter of Representation. The Company will pay to
the Bank, as paying agent, the total amount of interest
due on such Interest Payment Date (and, in the case of
an Amortizing Note, principal and interest) (other than
at maturity), and the Bank will pay such amount to DTC
at the times and in the manner set forth below under
"Manner of Payment."
B-10
<PAGE>
Payments at Maturity or Upon Redemption or Repayment.
On or about the first Business Day of each month, the
Bank will deliver to the Company and DTC a written list
of principal and interest to be paid on each Global
Security other than an Amortizing Note maturing either
at maturity or on a redemption or repayment date in the
following month. The Company and DTC will confirm the
amounts of such principal and interest payments with
respect to each such Global Security on or about the
fifth Business Day preceding the Maturity Date or
redemption or repayment date of such Global Security.
In the case of Amortizing Notes, the Bank will provide
separate written notice to DTC prior to the Maturity
Date and any redemption or repayment date, as the case
may be, at the times and in the manner set forth in the
Letter of Representation. The Company will pay to the
Bank, as the paying agent, the principal amount of such
Global Security, together with interest due at such
Maturity Date or redemption or repayment date. The Bank
will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment." If
any Maturity Date or redemption or repayment date of a
Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made
on the next succeeding Business Day with respect to
such Book-Entry Note. No interest shall accrue for the
period from and after the Maturity Date or redemption
or repayment date to such next succeeding Business Day.
Promptly after payment to DTC of the principal and
interest due on the Maturity Date or redemption or
repayment date of such Global Security, the Bank will
cancel such Global Security in accordance with the
terms of the Indenture and deliver it to the Company
with a certificate of cancellation.
B-11
<PAGE>
Manner of Payment. Payments on Global Securities
denominated in U.S. dollars will be made in the manner
described below. Payments on Global Securities
denominated in a Specified Currency, other than U.S.
dollars will be made in accordance with DTC's
"Issuing/Paying Agent General Operating Procedures and
Participant Terminal System Procedures for Medium-Term
Notes (MTNs) Including Deposit Notes and Medium-Term
Bank Notes," subject, further, to the provisions of the
Notes. The total amount of any principal and interest
due on Global Securities on any Interest Payment Date
or at maturity or upon redemption or repayment shall be
paid by the Company to the Bank in funds available for
immediate use by the Bank not later than 9:30 A.M. (New
York City time) on such date. The Company will make
such payment on such Global Securities by instructing
the Bank to withdraw funds from an account maintained
by the Company at the Bank. The Company will confirm
such instructions in writing to the Bank. Payment shall
be made prior to 10:00 A.M. (New York City time) or as
soon thereafter as practicable, on each Maturity Date
or redemption or repayment date or, if either such date
is not a Business Day, as soon as possible thereafter,
the Bank will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of
principal (together with interest thereon) due on
Global Securities on any Maturity Date or redemption or
repayment date. On each Interest Payment Date or, if
any such date is not a Business Day, as soon as
possible thereafter, interest payments and, in the case
of Amortizing Notes, interest and principal payments
shall be made to DTC in same day funds in accordance
with existing arrangements between the Bank and DTC.
Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry Notes represented by such Global Securities
are recorded in the book-entry system maintained by
DTC. Neither the Company nor the Bank shall have any
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
B-12
<PAGE>
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other person responsible for forwarding payments
directly to the beneficial owner of such Note.
Preparation If any order to purchase any Book-Entry Notes is
of Pricing Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and will
arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424 under the Securities Act and will deliver
the number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request by the close
of business on the following Business Day. The relevant
Agent will cause such Pricing Supplement to be
delivered to the purchaser of the Note. In each
instance that a Pricing Supplement is prepared, the
Agents receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to
which they are attached (other than those retained for
files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All orders accepted by the
Company will be settled on the third Business Day
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to
settlement on another day, which shall be no earlier
than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company to or through an Agent shall
be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
B-13
<PAGE>
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note is an
Amortizing Note and, if so, the amortization
schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate
(if known at such time), Interest Payment
Dates, Interest Payment Period, Calculation
Agent, Interest Rate Basis, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any) and Maximum Interest Rate (if any).
4. Redemption or repayment provisions, if any.
5. Settlement date and time.
6. Price.
7. The Specified Currency
8. Agent's commission, if any, determined as
provided in the Agreement.
9. Whether the Note is an Indexed Note, and if
it is an Indexed Note, the Indexed Currency,
the Currency Interest Rate Basis and the
Determination Agent.
10. Whether the Note is a Dual Currency Note, and
if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
11. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity
Date, the Final Maturity Date, the Election
Dates and the Maturity Extension Dates.
12. Whether the Company has the option to extend
the Original Maturity Date of the Note, and
if so, the Final Maturity Date of such Note.
B-14
<PAGE>
13. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
14. Any other applicable Terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in Settlement Procedure "A" above. The Bank
will then assign a CUSIP number to the Global
Security representing such Note and will notify
the Company and the Agent of such CUSIP number by
telephone as soon as practicable.
C. The Bank will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the relevant Agent and Standard & Poor's
Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such
Note, the number of days by which such date
succeeds the related DTC Record Date (which
in the case of Floating Rate Notes which
reset daily or weekly, shall be the date five
calendar days immediately preceding the
applicable Interest Payment Date and, in the
case of all other Notes, shall be the Record
Date as defined in the Note) and, if known,
the amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
5. Whether such Note is an Amortizing Note (by
an appropriate notation in the comments field
of DTC's Participant Terminal System).
B-15
<PAGE>
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agents and
the Bank.
D. The Bank will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to the Bank's
participant account at DTC.
F. The Bank will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
to (i) debit such Note to the Bank's participant
account and credit such Note to the relevant
Agent's participant account and (ii) debit such
Agent's settlement account and credit the Bank's
settlement account for an amount equal to the
price of such Note less such Agent's commission,
if any. The entry of such a deliver order shall
constitute a representation and warranty by the
Bank to DTC that (a) the Global Security
representing such Book-Entry Note has been issued
and authenticated and (b) the Bank is holding such
Global Security pursuant to the Medium Term Note
Certificate Agreement between the Bank and DTC.
G. Unless the relevant Agent purchased such Note as
principal, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
B-16
<PAGE>
I. With respect to Notes denominated in U.S. dollars,
the Bank will credit to the U.S. dollar account of
the Company maintained at a bank located in New
York City (or with respect to Notes payable in a
Specified Currency other than U.S. dollars, to a
bank notified to such Agent from time to time in
writing, which bank shall be located outside the
United Kingdom in the case of Notes payable in a
Specified Currency other than pounds sterling and
which mature not later than five years from and
including the date of issue thereof), notified to
the Bank from time to time in writing, in funds
available for immediate use in the amount
transferred to the Bank, in accordance with
Settlement Procedure "F".
J. Unless the relevant Agent purchased such Note as
principal, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
K. Quarterly, the Bank will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indenture and setting forth a brief description of
any sales of which the Company has advised the
Bank but which have not yet been settled.
B-17
<PAGE>
Settlement Procedures For sales by the Company of Book-Entry Notes to or
Timetable: through an Agent for settlement on the first Business
Day after the sale date, Settlement Procedures "A"
through "J" set forth above shall be completed as soon
as possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedure "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12 Noon
and 2:00 P.M., respectively, on the second Business Day
before the settlement date. Settlement Procedure "H" is
subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on
the settlement date. If settlement of a Book-Entry Note
is rescheduled or cancelled, the Bank, after receiving
notice from the Company or the Agent, will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
B-18
<PAGE>
Failure to Settle: If the Bank fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Bank may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the Bank's participant account,
provided that the Bank's participant account contains a
principal amount of the Global Security representing
such Note that is at least equal to the principal
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the Bank will mark
such Global Security "cancelled," make appropriate
entries in the Bank's records and send such cancelled
Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance
with CUSIP Service Bureau procedures, be cancelled and
not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the Bank will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F"
and "G", respectively. Thereafter, the Bank will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect.
B-19
<PAGE>
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Bank will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a
Global Security representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank to
risk or expend its own funds in connection with any
payments to the Company, the Agents, DTC or any holders
of Notes, it being understood by all parties that
payments made by the Bank to the Company, the Agents,
DTC or any holders of Notes shall be made only to the
extent that funds are provided to the Bank for such
purpose.
B-20
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR
CERTIFICATED NOTES
The Bank will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Bank. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to any Certificated Note
(or any portion thereof) issued on any date of
settlement, such date of settlement and (ii) with
respect to any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or
stolen Certificated Note, the original issuance date of
the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and
Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the Bank.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine
months or more from its date of issue.
Currency: Certificated Notes will be denominated in U.S. dollars
unless otherwise specified in the applicable Pricing
Supplement.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Certificated Notes will be issued in
principal amounts of $1,000 (or, if the Specified
Currency is other than U.S. dollars, the minimum
denomination thereof specified in the applicable
Pricing Supplement), or any amount in excess thereof
which is an integral multiple of $1,000 (or, if the
Specified Currency is other than U.S. dollars, integral
multiples of such minimum denomination thereof
specified in the applicable Pricing Supplement).
B-21
<PAGE>
Interest: General. Interest on each Certificated Note will accrue
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest
periods. Unless otherwise specified in the applicable
Pricing Supplement, each payment of interest on a
Certificated Note will include interest accrued from
and including the immediately preceding Interest
Payment Date to but excluding the related Interest
Payment Date or the Maturity Date, as the case may be.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date with
respect to any Interest Payment Date shall be the
fifteenth calendar day (whether or not a Business Day)
immediately preceding such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
Interest Payment Dates for Fixed Rate Certificated
Notes will be made semiannually on June 15 and December
15 of each year; provided that, in addition to other
amounts due and payable on any Maturity Date, interest
accrued from and including the immediately preceding
Interest Payment Date shall be paid on such Maturity
Date. In the event that any Interest Payment Date or
Maturity Date for a Fixed Rate Certificated Note is not
a Business Day, the payment due on such day shall be
made on the next succeeding Business Day, and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date or Maturity
Date to such next succeeding Business Day. The first
payment of interest on any Fixed Rate Certificated Note
issued between a Record Date and an Interest Payment
Date will be made on the Interest Payment Date
following the next succeeding Record Date.
B-22
<PAGE>
Floating Rate Certificated Notes. Except as provided in
the applicable Pricing Supplement, interest will be
payable in the case of Floating Rate Certificated Notes
which reset (i) daily, weekly or monthly, on a Business
Day that occurs in each month or that occurs in each
third month, as specified in the applicable Pricing
Supplement; (ii) quarterly, on a Business Day that
occurs in each third month, as specified in the
applicable Pricing Supplement; (iii) semiannually, on a
Business Day that occurs in each of two months of each
year, as specified in the applicable Pricing
Supplement; and (iv) annually, on a Business Day that
occurs in one month of each year, as specified in the
applicable Pricing Supplement (each, an "Interest
Payment Date"), and, in each case, on the Maturity
Date. If an Interest Payment Date for Floating Rate
Certificated Notes would otherwise be a day that is not
a Business Day, such Interest Payment Date will be the
next succeeding Business Day and no interest shall
accrue for the period from and after such Interest
Payment Date, except that if such Note is a LIBOR Note
and such Business Day falls in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day. In the case of a
Floating Rate Certificated Note issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Calculation of Fixed Rate Certificated Notes. Unless otherwise
Interest: specified in the applicable Pricing Supplement,
interest on Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest rates on Floating Rate Certificated Notes will
be determined as set forth in the form of such Notes.
Interest on Floating Rate Certificated Notes will be
calculated on the basis of actual days elapsed and a
year of 360 days except that in the case of Treasury
Rate Notes, interest will be calculated on the basis of
the actual number of days in the year.
B-23
<PAGE>
Payments of Principal Payments on Certificated Notes denominated in U.S.
and Interest: dollars will be made in the manner described below.
Payments on Certificated Notes denominated in a
Specified Currency other than U.S. dollars will be made
in the manner described below, except as otherwise
provided in the Notes. The Bank will pay the principal
amount of each Certificated Note at maturity or upon
redemption or repayment upon presentation and surrender
of such Note to the Bank. Such payment, together with
payment of interest due at maturity or upon redemption
or repayment of such Note, will be made in funds
available for immediate use by the Bank and in turn by
the holder of such Note. Certificated Notes presented
for payment to the Bank at maturity or upon redemption
or repayment will be cancelled by the Bank and
delivered to the Company with a certificate of
cancellation. All interest payments on a Certificated
Note (other than interest due at maturity or upon
redemption or repayment) will be made by check drawn on
the Bank (or another person appointed by the Bank) and
mailed by the Bank to the person entitled thereto as
provided in such Note and the Indenture; provided,
however, that the holder of U.S. $5,000,000 (or, if the
Specified Currency is other than U.S. dollars, the
equivalent thereof in such Specified Currency) or more
in aggregate principal amount of Certificated Notes
(having identical terms and provisions) will be
entitled to receive payments of interest by wire
transfer of immediately available funds to an account
maintained by the holder within the United States.
Following each Record Date, the Bank will furnish the
Company with a list of interest payments to be made on
the following Interest Payment Date for each
Certificated Note and in total for all Certificated
Notes. Interest at maturity or upon redemption or
repayment will be payable to the person to whom the
payment of principal is payable. The Bank will provide
monthly to the Company lists of principal and interest,
to the extent ascertainable, to be paid on Certificated
Notes maturing or to be redeemed in the next month. The
Bank will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
B-24
<PAGE>
If the Maturity Date or redemption or repayment date of
a Certificated Note is not a Business Day, the payment
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date, Maturity Date or redemption or repayment
date, as the case may be.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and will
arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424 under the Securities Act and will deliver
the number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request by the close
of business on the following Business Day. The relevant
Agent will cause such Pricing Supplement to be
delivered to the purchaser of the Note. In each
instance that a Pricing Supplement is prepared, the
Agents receiving such Pricing Supplement will affix the
Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to
which they are attached (other than those retained for
files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the
Company will be settled on or before the third Business
Day next succeeding the date of acceptance pursuant to
the timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement on
another date.
Settlement Procedures: Settlement Procedures with regard to each Certificated
Note sold by the Company to or through an Agent shall
be as follows:
A. The relevant Agent will advise the Company by
facsimile transmission or telephone that such Note
is a Certificated Note and of the following
settlement information:
B-25
<PAGE>
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, the applicability of
Annual Interest Payments and whether such
Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Dates, Interest Payment
Period, Calculation Agent, Interest Rate
Basis, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any), and
the Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Settlement date and time.
9. Price.
10. Agent's commission, if any, determined as
provided in the Agreement.
11. Specified Currency
12. Denominations.
13. Whether the Note is an Indexed Note, and if
it is an Indexed Note, the Indexed Currency,
the Currency Interest Rate Basis and the
Determination Agent.
B-26
<PAGE>
14. Whether the Note is a Dual Currency Note, and
if it is a Dual Currency Note, the Face
Amount Currency, the Optional Payment
Currency, the Designated Exchange Rate, the
Option Election Dates and the Option Value
Calculation Agent.
15. If applicable, wire transfer instructions,
including name of banking institution where
transfer is to be made and account number.
16. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity
Date, the Final Maturity Date, the Election
Dates and the Maturity Extension Dates.
17. Whether the Company has the option to extend
the Original Maturity Date of the Note, and,
if so, the Final Maturity Date of such Note.
18. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and, if so, the Issue
Price).
19. Any other applicable terms.
B. The Company will advise the Bank by telephone or
electronic transmission (confirmed in writing at
any time on the sale date) of the information set
forth in Settlement Procedure "A" above.
C. The Company will have delivered to the Bank a
pre-printed fourply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
relevant Agent and the Bank:
1. Note with customer confirmation.
2. Stub One - For the Bank.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
B-27
<PAGE>
D. The Bank will complete such Note and authenticate
such Note and deliver it (with the confirmation)
and Stubs One and Two to the relevant Agent, and
such Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and
returning it to the Bank. Such delivery will be
made only against such acknowledgment of receipt
and evidence that instructions have been given by
such Agent for payment to the U.S. dollar account
of the Company maintained at the Bank, New York,
New York (or, with respect to Notes payable in a
Specified Currency other than U.S. dollars, to an
account maintained at a bank selected by the
Company which bank shall be located outside the
United Kingdom in the case of Notes payable in a
Specified Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof) in funds
available for immediate use, of an amount equal to
the price of such Note less such Agent's
commission, if any. In the event that the
instructions given by such Agent for payment to
the account of the Company are revoked, the
Company will as promptly as possible wire transfer
to the account of such Agent an amount of
immediately available funds equal to the amount of
such payment made.
E. Unless the relevant Agent purchased such Note as
principal, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Bank will send Stub Three to the Company by
first-class mail. Periodically, the Bank will also
send to the Company a statement setting forth the
principal amount of the Notes Outstanding as of
that date under the Indenture and setting forth a
brief description of any sales of which the
Company has advised the Bank but which have not
yet been settled.
B-28
<PAGE>
Settlement Procedures For sales by the Company of Procedures Certificated
Timetable: Notes to or through an Agent, Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times (New York City time) set
forth below:
Settlement
Procedure
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the relevant Agent
will notify the Company and the Bank by telephone and
return such Note to the Bank. Upon receipt of such
notice, the Company will immediately wire transfer to
the account of such Agent an amount equal to the amount
previously credited thereto in respect of such Note.
Such wire transfer will be made on the settlement date,
if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Distribution
Agreement with the Company, then the Company will
reimburse such Agent or the Bank, as appropriate, on an
equitable basis for its loss of the use of the funds
during the period when they were credited to the
account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure
occurred, the Bank will mark such Note "cancelled,"
make appropriate entries in the Bank's records and send
such Note to the Company.
Bank Not to Risk Funds: Nothing herein shall be deemed to require the Bank to
risk or expend its own funds in connection with any
payments to the Company, the Agents, DTC or any holders
of Notes, it being understood by all parties that
payments made by the Bank to the Company, the Agents,
DTC or any holders of Notes shall be made only to the
extent that funds are provided to the Bank for such
purpose.
B-29
<PAGE>
EXHIBIT C
[Letterhead of Purchaser]
_______, 199_
Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
This letter sets forth the terms and conditions upon which [name of
Purchaser] (the "Purchaser") proposes to purchase as principal from Donaldson,
Lufkin & Jenrette, Inc. (the "Company") the Medium-Term Notes (the "Purchased
Securities") of the Company described in Schedule I hereto and in the Company's
Prospectus dated August 15, 1996, as supplemented by the Prospectus Supplement
dated April 8, 1997 and Pricing Supplement No. [insert number] relating to the
Purchased Securities (collectively, the "Prospectus").
The Company acknowledges that it has entered into a Distribution
Agreement, dated April 8, 1997 (the "Distribution Agreement"), with Donaldson
Lufkin & Jenrette Securities Corporation, BancAmerica Securities, Inc., Banque
Paribas, Chase Securities Inc., Citicorp Securities, Inc., Credit Lyonnais
Securities (USA) Inc., Deutsche Morgan Grenfell Inc., First Chicago Capital
Markets, Inc., NationsBanc Capital Markets, Inc., Societe Generale Securities
Corporation and UBS Securities LLC, as agents (the "Agents"), providing for the
sale of its Medium-Term Notes due nine months or more from date of issue to or
through the Agents acting as principal or agent. The Company represents and
warrants to the Purchaser that the representations and warranties of the
Company made in the Distribution Agreement are true and correct as though made
on and as of the date hereof and will be true and correct on and as of the Time
of Delivery; provided, however, that the following terms have the meanings
indicated: (i) "Agent" means the Purchaser; (ii) "this Agreement" means this
letter and (iii) "Notes" means the Purchased Securities.
The Company and the Purchaser further agree that the following
provisions of the Distribution Agreement shall be incorporated by reference
into and made a part of this letter with respect to the Purchased Securities,
as if the Purchaser were an Agent purchasing Notes as principal pursuant to a
Terms Agreement and this letter were a Terms Agreement (and the Purchaser were
the Agent signatory
<PAGE>
thereto): (i) Section 4, for so long as the Purchaser shall be required to
deliver a prospectus in connection with the Purchased Securities; (ii) Section
5; (iii) Section 6; and (iv) Section 7.
Terms used herein without definition have the meanings specified in
the Distribution Agreement.
Very truly yours,
[NAME OF PURCHASER]
By:
------------------------------
Name:
Title:
Agreed and accepted.
DONALDSON, LUFKIN & JENRETTE, INC.
By
---------------------------
Name:
Title:
2
<PAGE>
Schedule I
Designation:
Principal Amount:
Issue Price:
Original Issue Date:
Interest rate and
other provisions: As described in the Prospectus
Purchase Price:
Time of Delivery:
Place of Delivery:
Manner of payment As described in the Administrative
and delivery: Procedures relating to [Book-Entry]
[Certificated] Notes or as otherwise
agreed by the parties
Other Terms:
3
<PAGE>
[FORM OF FIXED RATE NOTE]
[FACE OF NOTE]
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT: ________
No. FXR-_____________ CUSIP: __________
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
<TABLE>
<CAPTION>
ORIGINAL ISSUE INTEREST RATE: % MATURITY DATE:
DATE:
<S> <C> <C>
INTEREST PAYMENT DATE(S)
[ ] June 15 and December 15
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE AGENT:
[ ] United States dollars [ ] $1,000 and integral
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM OTHER/ADDITIONAL
ATTACHED PROVISIONS:
[ ] Yes
[ ] No
</TABLE>
<PAGE>
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (together
with its successors and assigns, the "Company"), for value received, hereby
promises to pay to or registered assignees, the principal
sum of on the Maturity Date specified above (except to
the extent redeemed or repaid prior to the Maturity Date) and to pay interest
thereon from the Original Issue Date specified above at the Interest Rate per
annum specified above until the principal hereof is paid or duly made
available for payment (except as provided below). The Company will pay
interest in arrears on each June 15 and December 15 (or such other Interest
Payment Date(s) specified above) commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date (or any Redemption Date or Repayment Date) (these and certain
other capitalized terms used herein are defined on the reverse of this Note);
provided, however, that if the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date succeeding
the Original Issue Date to the registered holder of this Note on the Record
Date with respect to such second Interest Payment Date; and provided, further,
that if an Interest Payment Date or the Maturity Date (or any Redemption Date
or Repayment Date) would fall on a day that is not a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date shall
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any Redemption Date or Repayment Date), and no interest
shall accrue for the period from and after the Interest Payment Date or the
Maturity Date (or any Redemption Date or Repayment Date) to such next
succeeding Business Day.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any Redemption Date or Repayment Date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of such paying agent as the Company may determine maintained for
that purpose in the Borough of Manhattan, The City of New York (a "Paying
Agent"), or at the office or agency of such other Paying Agent as the Company
may determine.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other Provisions" apply to this Note as specified above, this Note shall be
subject to the terms set forth in such Addendum or such "Other Provisions".
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Original Issue Date,
until the principal hereof has been paid or duly made available for payment
(except as provided herein). The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date, will, subject to certain
exceptions described herein, be paid to the
2
<PAGE>
person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days prior to an
Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable on the Maturity Date
(or any Redemption Date or Repayment Date) will be payable to the person to
whom the principal hereof shall be payable.
If the Specified Currency indicated on the face hereof is other than
U.S. dollars, any payment on this Note on an Interest Payment Date or the
Maturity Date (or any Redemption Date or Repayment Date) will be made in U.S.
dollars, as provided below, unless the holder hereof elects by written request
(which request shall also include appropriate wire transfer instructions) to
the Paying Agent at its corporate trust office in The City of New York
received on or prior to the Record Date relating to an Interest Payment Date
or at least 10 days prior to the Maturity Date (or any Redemption Date or
Repayment Date), as the case may be, to receive such payment in such Specified
Currency except as provided on the reverse hereof; provided, that any U.S.
dollar amount to be received by a holder of this Note will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent appointed by the Company and identified above (the "Exchange Rate
Agent"), at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) for the
purchase by the quoting dealer of such 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 Notes having the same terms as this Note
(including Original Issue Date) scheduled to receive U.S. dollar payment and
at which the applicable dealer commits to execute a contract; provided,
further, that if such bid quotations are not available, such payments shall be
made in such Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments. The holder hereof
may elect to receive payment in such Specified Currency for all such payments
and need not file a separate election for each such payment, and such election
shall remain in effect until revoked by written notice to the Paying Agent at
its corporate trust office in The City of New York received on a date prior to
the Record Date for the relevant Interest Payment Date or at least 10 calendar
days prior to the Maturity Date (or any Redemption Date or Repayment Date), as
the case may be; provided, that such election is irrevocable as to the next
succeeding payment to which it relates; if such election is made as to full
payment on this Note, such election may thereafter be revoked so long as the
Paying Agent is notified of the revocation within the time period set forth
above.
If the Specified Currency indicated on the face hereof is U.S.
dollars, payment of the principal of and premium, if any, and interest on this
Note will be made in such coin or currency of the United States as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that
3
<PAGE>
payments of interest, other than interest due at maturity (or any Redemption
Date or Repayment Date) will be made by United States dollar check mailed to
the address of the person entitled thereto as such address shall appear in the
Note register.
A holder of U.S. $5,000,000 (or, if the Specified Currency specified
above is other than U.S. dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity (or any Redemption Date or Repayment Date), by
wire transfer of immediately available funds to an account within the United
States maintained by the holder of this Note if appropriate wire transfer
instructions in writing have been received by the Paying Agent not less than
10 days prior to the applicable Interest Payment Date; provided, however,
that, unless alternative arrangements are made, any such payments to be made
in a Specified Currency other than U.S. dollars shall be made to an account at
a bank outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
DONALDSON, LUFKIN & JENRETTE, INC.
By:___________________________
Title:
By:___________________________
Title:
[SEAL]
Attest:
By:___________________________
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee and Authenticating Agent
By:___________________________
Authorized Signatory
DATED:
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[REVERSE OF NOTE]
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized issue of Medium-Term Notes
having maturities of nine months or more from the date of issue (the "Notes")
of the Company. The Notes are issuable under an indenture, dated as of October
25, 1995 (the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Company, the Trustee and
holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The Bank of New York has been appointed
Authenticating Agent and Calculation Agent (the "Authenticating Agent" and
"Calculation Agent", respectively, which terms include any successor
authenticating agent or calculation agent, as the case may be) with respect to
the Notes, and The Bank of New York at its corporate trust office in The City
of New York has been appointed the registrar and Paying Agent with respect to
the Notes. The terms of individual Notes may vary with respect to interest
rates, interest rate formulas, issue dates, maturity dates, or otherwise, all
as provided in the Indenture. To the extent not inconsistent herewith, the
terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with
unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
redemption Percentage Reduction, if any, specified on the face hereof until
the redemption Price is 100% of unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for
the unredeemed portion hereof and otherwise
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having the same terms as this Note shall be issued in the name of the holder
hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination),
at a repayment price equal to 100% of the unpaid principal amount to be
repaid, together with unpaid interest accrued thereon to the date fixed for
repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not
more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as
the case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued
as of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause the yield on the
Note to be constant (computed using the "Constant Yield" method in accordance
with the rules under the Internal Revenue Code of 1986, as amended). The
constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption
that the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such
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period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or earlier
Redemption Date or Repayment Date), as the case may be. Interest payments for
this Note will be computed and paid on the basis of a 360-day year of twelve
30-day months.
This Note is unsecured and ranks pari passu with all other unsecured
and unsubordinated indebtedness of the Company.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
or any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in the minimum Authorized Denomination specified on the face hereof or any
amount in excess thereof which is an integral multiple thereof.
In case a Default or an Event of Default with respect to the Notes,
as defined in the Indenture, shall have occurred and be continuing, the
principal hereof and the interest accrued hereon, if any, may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that, without prior
notice to any holders of Notes, the Company and the Trustee may amend the
Indenture and the Notes of any series with the written consent of the holders
of a majority in principal amount of the outstanding Notes of all series
affected by such amendment (all such series voting as one class), and the
holders of a majority in principal amount of the outstanding Notes of all
series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company with any
provision of the Indenture or the Notes of such series; provided that, without
the consent of each holder of the Notes of each series affected thereby, an
amendment or waiver, including a waiver of past defaults, may not: (i) extend
the stated maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such holder's Note, or reduce the principal amount
thereof or the rate of interest thereon (including any amount in respect of
original issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the option of
such holder, or reduce the amount of the principal of an Original Issue
Discount Note that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy, or change any
place of payment where, or the
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currency in which, any Note of such series or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the due date therefor; (ii) reduce the
percentage in principal amount of outstanding Notes of the relevant series the
consent of whose holders is required for any such supplemental indenture, for
any waiver of compliance with certain provisions of the Indenture or certain
Defaults and their consequences provided for in the Indenture; (iii) waive a
Default in the payment of principal of or interest on any Note of such holder;
or (iv) modify any of the provisions of the Indenture governing supplemental
indentures with the consent of noteholders except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of the holder of each outstanding
Note affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Note affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default with respect to
the Notes of such series arising therefrom shall be deemed to have been cured,
for every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Except as set forth below, if the principal of, or premium, if any,
or interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Company for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Company will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or, if
the Market Exchange Rate is not available on such date, as of the most recent
practicable date. Any payment made under such circumstances in U.S. dollars
where the required payment is in a Specified Currency other than U.S.
dollars will not constitute an Event of Default.
If, pursuant to the treaty (establishing the European Community (the
"EC"), as amended by the treaty on European Union (the "Treaty"), one or more
of the Austrian schilling, Belgian franc, Danish krone, Dutch guilder, Finish
markka, French franc, German mark, Greek drachma, Irish pound, Italian lire,
Luxembourg franc, Pound sterling, Portuguese escudo, Spanish peseta or Swedish
krona is
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replaced by the ECU as a currency in its own right, then all payments in
respect of this Note shall be effected in ECU as a currency in its own right
in conformity with legally applicable measures taken pursuant to, or by virtue
of, the Treaty. References herein to the ECU as a currency in its own right
shall be construed as including references to the Euro.
If, pursuant to the Treaty or EC law, other changes are made by the
EC to the nature or composition of the ECU, references herein to the ECU shall
be construed as references to the ECU as so changed.
If payment in respect of this Note is required to be made in the ECU
and the ECU is no longer used as either the unit of account of the EC or a
currency in its own right, replacing all or some of the currencies of the
member countries of the EC, then the Company or its agent shall, on or about
the first Business Day on which the ECU is not so used, choose a substitute
currency (the "Chosen Currency"), which shall be a component currency of the
ECU or U.S. dollars, in which all payments in respect of this Note shall be
made. In the event that an agent of the Company chooses such Chosen Currency,
such choice shall be made without liability after consultation with the
Company and having regard to the availability to the Company of the relevant
currency. Notice of the Chosen Currency so selected shall be mailed to the
registered holder of this Note.
The amount of each payment in a Chosen Currency shall be computed as
of the fourth Business Day prior to each date on which payment is due on the
basis of the equivalent of the ECU in such Chosen Currency. The equivalent of
the ECU in a Chosen Currency as of any date (the "Day of Valuation") shall be
determined by the Exchange Rate by (i) aggregating the U.S. dollar equivalents
of the amounts and components which composed the ECU (the "Components") as of
the last date on which the ECU was used as the unit of account of the EC and
(ii) if the Chosen Currency is a currency other than U.S. dollars, calculating
the equivalent in the Chosen Currency of such aggregate amount in U.S.
dollars. The U.S. dollar equivalent of each of the Components shall be
determined by the Exchange Rate Agent on the basis of the middle spot delivery
quotations prevailing at 2:30 p.m., Brussels time, on the Day of Valuation, as
obtained by the Exchange Rate Agent from one or more major banks, as selected
by the Company or its agent, in the country of issue of the component currency
in question. If no direct quotations are available for a Component as of a Day
of Valuation from any of the banks selected for such purpose, the Exchange
Rate Agent shall use the most recent direct quotations for such component
obtained by it or on its behalf, provided that such quotations were prevailing
in the country of issue not more than two Business Days before such Day of
Valuation, unless the Company or its agent decides that the equivalent so
calculated is less representative than the U.S. dollar equivalent calculated
on the basis of cross rates derived from the middle spot delivery quotations
for such component currency and for the U.S. dollar prevailing at 2:30 p.m.,
Brussels time, on the Day of Valuation, as obtained by or on behalf of the
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Exchange Rate Agent from one or more major banks, as selected by the Company
or its agents, in a country other than the country of issue of such component
currency, in which case the Exchange Rate Agent shall determine the U.S.
dollar equivalent of such Component on the basis of such cross rates. Unless
otherwise specified by the Company or its agent, if there is more than one
market for dealing in any component currency by reason of foreign exchange
regulations or for any other reason, the market to be referred to in respect
of such currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such notes.
All determinations referred to above made by the Company or its
agents shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on holders of Notes.
So long as this Note shall be outstanding, the Company will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Company may designate other agencies for the payment of said
principal, premium, if any, and interest at such place or places (subject to
applicable laws and regulations) as the Company may decide. So long as there
shall be any such agency, the Company shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place,
and rate, and in the coin or currency, herein and in the Indenture prescribed
unless otherwise agreed between the Company and the registered holder of this
Note.
Upon due presentment for registration of transfer of this Note, a new
Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company or any agent of the Company, the registrar of the Notes or the
Trustee may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Registrar, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or the interest on, this Note, for any claim based hereon, or
otherwise in
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respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York (without regard to
conflicts of law principles thereof).
As used herein:
(a) the term "Business Day" means any day that is not a Saturday or
Sunday and that is not a day on which banking institutions are generally
authorized or obligated by law, regulation or executive order to close in The
City of New York and (i) with respect to Notes denominated in a Specified
Currency other than U.S. dollars or the ECU, such day that is not a day on
which banking institutions are generally authorized or obligated by law,
regulation or executive order to close in the principal financial center of
the country of the Specified Currency, or (ii) with respect to Notes
denominated in the ECU, a day that is a non-ECU clearing day as determined by
the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" shall mean the noon U.S. dollar
buying rate in The City of New York for cable transfers as published by the
Federal Reserve Bank of New York;
(c) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(d) all other terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, 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.......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act............................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL NUMBER OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ---------------------------------------
- -----------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer
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such Note on the books of the Company, with full power of
substitution in the premises.
Signature: ________________________
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Issuer to repay the within
Note (or portion thereof specified below) pursuant to its terms at a price
equal to the principal amount thereof, together with interest to the Optional
Repayment Date, to the undersigned, at
- -----------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof (which shall be increments of $____ or such
minimum Authorized Denomination indicated on the face hereof) which the holder
elects to have repaid: ; and specify the denomination or denominations (which
shall not be less than $1,000 or such minimum Authorized Denomination) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):____________________________.
Dated:__________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
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[FORM OF FLOATING RATE NOTE]
[FACE OF NOTE]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
REGISTERED
PRINCIPAL AMOUNT: ________
No. FLR-__________ CUSIP: ____________
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTE
(Floating Rate)
<TABLE>
<CAPTION>
INTEREST RATE BASIS ORIGINAL ISSUE MATURITY DATE:
OR BASES: DATE:
<S> <C> <C>
IF LIBOR:
[ ] LIBOR Reuters
[ ] LIBOR Telerate
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST INTEREST PAYMENT
RATE: % DATE(S):
SPREAD (PLUS SPREAD MULTIPLIER: % INITIAL INTEREST RESET
OR MINUS): % DATE:
MINIMUM INTEREST MAXIMUM INTEREST INTEREST RESET
RATE: % RATE: % DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT
DATE(S):
INTEREST CATEGORY: AUTHORIZED DENOMINATION:
<PAGE>
[ ] Regular Floating Rate Note [ ] $1,000 and integral multiplies thereof
[ ] Floating Rate/Fixed Rate Note [ ] Other:
Fixed Rate Commencement
Date: SPECIFIED CURRENCY:
Fixed Rate Interest: % [ ] United States dollars
[ ] Inverse Floating Rate Note [ ] Other:
Fixed Interest Rate:
[ ] Original Issue Discount Note
Issue Price:
ADDENDUM ATTACHED
[ ] Yes
[ ] No EXCHANGE RATE AGENT:
OTHER PROVISIONS:
</TABLE>
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Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation (together
with its successors and assigns, the "Company"), for value received, hereby
promises to pay to , or registered assignees, the principal sum of on the
Maturity Date specified above (except to the extent redeemed or repaid prior
to the Maturity Date) and to pay interest thereon from the Original Issue Date
specified above at a rate per annum equal to the Initial Interest Rate
specified above until the first Interest Reset Date next succeeding the
Original Issue Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse hereof
until the principal hereof is paid or duly made available for payment (except
as provided below). The Company will pay interest in arrears on each Interest
Payment Date (as specified above) commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date (or any Redemption Date or Repayment Date) (these and certain
other capitalized terms used herein are defined on the reverse of this Note);
provided, however, that if the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date succeeding
the Original Issue Date to the registered holder of this Note on the Record
Date with respect to such second Interest Payment Date; and provided further,
that (i) if an Interest Payment Date (other than the Maturity Date (or any
Redemption Date or Repayment Date)) would fall on a day that is not a Business
Day, such Interest Payment Date, shall be the following day that is a Business
Day, except that if the Interest Rate Basis specified above is LIBOR and such
next Business Day falls in the next calendar month, the Interest Payment Date,
Maturity Date (or any Redemption Date or Repayment Date) shall be the
immediately preceding day that is a Business Day, and (ii) if the Maturity
Date (or any Redemption Date or Repayment Date) falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and
effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after the Maturity
Date (or any Redemption Date or Repayment Date) to the date of such payment on
the next succeeding Business Day.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any Redemption Date or Repayment Date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of such paying agent as the Company may determine maintained for
that purpose in the Borough of Manhattan, The City of New York (a "Paying
Agent"), or at the office or agency of such other Paying Agent as the Company
may determine.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other Provisions" apply to this Note as specified above, this Note shall be
subject to the terms set forth in such Addendum or such "Other Provisions".
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly
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provided for or, if no interest has been paid or duly provided for, from the
Original Issue Date, until the principal hereof has been paid or duly
made available for payment (except as provided herein). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date, will, subject to certain exceptions described herein, be paid to the
person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days prior to an
Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable on the Maturity Date
(or any Redemption Date or Repayment Date) will be payable to the person to
whom the principal hereof shall be payable.
If the Specified Currency indicated on the face hereof is other than
U.S. dollars, any payment on this Note on an Interest Payment Date or the
Maturity Date (or any Redemption Date or Repayment Date) will be made in U.S.
dollars, as provided below, unless the holder hereof elects by written request
(which request shall also include appropriate wire transfer instructions) to
the Paying Agent at its corporate trust office in The City of New York
received on or prior to the Record Date relating to an Interest Payment Date
or at least 10 days prior to the Maturity Date (or any Redemption Date or
Repayment Date), as the case may be, to receive such payment in such Specified
Currency except as provided on the reverse hereof; provided, that any U.S.
dollar amount to be received by a holder of this Note will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent appointed by the Company and identified above (the "Exchange Rate
Agent"), at approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) for the
purchase by the quoting dealer of such 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 Notes having the same terms as this Note
(including Original Issue Date) scheduled to receive U.S. dollar payment and
at which the applicable dealer commits to execute a contract; provided,
further, that if such bid quotations are not available, such payments shall be
made in such Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments. The holder hereof
may elect to receive payment in such Specified Currency for all such payments
and need not file a separate election for each such payment, and such election
shall remain in effect until revoked by written notice to the Paying Agent at
its corporate trust office in The City of New York received on a date prior to
the Record Date for the relevant Interest Payment Date or at least 10 calendar
days prior to the Maturity Date (or any Redemption Date or Repayment Date), as
the case may be; provided, that such election is irrevocable as to the next
succeeding payment to which it relates; if such election is made as to full
payment on this Note, such election may thereafter be revoked so long as the
Paying Agent is notified of the revocation within the time period set forth
above.
If the Specified Currency indicated on the face hereof is U.S.
dollars, payment of the principal of and premium, if any, and interest on this
Note will be made in such coin or currency of the United States as at the time
of payment is legal tender for payment of
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<PAGE>
public and private debts; provided, however, that payments of interest, other
than interest due at maturity (or any Redemption Date or Repayment Date) will
be made by United States dollar check mailed to the address of the person
entitled thereto as such address shall appear in the Note register.
A holder of U.S. $5,000,000 (or, if the Specified Currency specified
above is other than U.S. dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity (or any Redemption Date or Repayment Date), by
wire transfer of immediately available funds to an account within the United
States maintained by the holder of this Note if appropriate wire transfer
instructions in writing have been received by the Paying Agent not less than
10 days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, as defined on the reverse hereof, by manual
signature, this Note shall not be entitled to any benefit under the Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
DONALDSON, LUFKIN & JENRETTE, INC.
[SEAL]
By:______________________________
Title:
By:______________________________
Title:
Attest:
By:___________________________
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee and Authenticating Agent
By:____________________________
Authorized Signatory
DATED:
6
<PAGE>
[REVERSE OF NOTE]
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized issue of Medium-Term Notes
having maturities of nine months or more from the date of issue (the "Notes")
of the Company. The Notes are issuable under an indenture, dated as of October
25, 1995 (the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Company, the Trustee and
holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The Bank of New York has been appointed
Authenticating Agent and Calculation Agent (the "Authenticating Agent" and
"Calculation Agent", respectively, which terms include any successor
authenticating agent or calculation agent, as the case may be) with respect to
the Notes, and The Bank of New York at its corporate trust office in The City
of New York has been appointed the registrar and Paying Agent with respect to
the Notes. The terms of individual Notes may vary with respect to interest
rates, interest rate formulas, issue dates, maturity dates, or otherwise, all
as provided in the Indenture. To the extent not inconsistent herewith, the
terms of the Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at
the option of the holder prior to maturity.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with
unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
redemption Percentage Reduction, if any, specified on the face hereof until
the redemption Price is 100% of unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for
the unredeemed portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
7
<PAGE>
This Note will be subject to repayment by the Company at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination),
at a repayment price equal to 100% of the unpaid principal amount to be
repaid, together with unpaid interest accrued thereon to the date fixed for
repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not
more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of like tenor for
the unrepaid portion hereof and otherwise having the same terms as this Note
shall be issued in the name of the holder hereof upon the presentation and
surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as
the case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued
as of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause the yield on the
Note to be constant (computed using the "Constant Yield" method in accordance
with the rules under the Internal Revenue Code of 1986, as amended). The
constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption
that the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is
specified on the face hereof as a "Floating Rate/Fixed Rate
Note" or an "Inverse Floating Rate
8
<PAGE>
Note", this Note shall be designated as a "Regular Floating
Rate Note" and, except as set forth below or on the face
hereof, shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases (a)
plus or minus the Spread, if any, and/or (b) multiplied by
the Spread Multiplier, if any, in each case as specified on
the face hereof. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date
specified on the face hereof; provided, however, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
(ii) If the Interest Category of this Note is
specified on the face hereof as a "Floating Rate/Fixed Rate
Note", then, except as set forth below or on the face
hereof, this Note shall bear interest at the rate determined
by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the Rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset
Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date
to the Initial Interest Reset Date shall be the Initial
Interest Rate and (z) the interest rate in effect for the
period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be
the Fixed Interest Rate specified on the face hereof or, if
no such Fixed Interest Rate is specified, the interest rate
in effect hereon on the day immediately preceding the Fixed
Rate Commencement Date.
(iii) If the Interest Category of this Note is
specified on the face hereof as an "Inverse Floating Rate
Note", then, except as set forth below or on the face
hereof, this Note shall bear interest at the Fixed Interest
Rate minus the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus
the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any; provided, however, that, unless
otherwise specified on the face hereof, the interest rate
hereon shall not be less than zero. Commencing on the
Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each
Interest Reset Date; provided, however, that the interest
rate in effect for the period, if any, from the Original
Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect
to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as set forth above or on the face hereof,
the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest
Reset Date or
9
<PAGE>
(ii) if such day is not an Interest Reset Date, the interest rate determined
as of the Interest Determination Date immediately preceding the most recent
Interest Reset 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 LIBOR is an applicable Interest Rate
basis and such Business Day falls in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate and Prime Rate will be the second Business Day
preceding such Interest Reset Date. The Interest Determination Date pertaining
to an Interest Reset Date for Notes bearing interest calculated by reference
to LIBOR shall be the second London Business Day preceding such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to the Treasury Rate shall be
the day of the week in which such Interest Reset Date falls on which Treasury
bills normally would be auctioned; provided, however, that if as a result of a
legal holiday an auction is held on the Friday of the week preceding such
Interest Reset Date, the related Interest Determination Date shall be such
preceding Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the first
Business Day following the date of such auction.
The "Calculation Date" pertaining to any Interest Determination Date
will be the earlier of (i) the tenth 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.
Determination of CD Rate. If the Interest Rate Basis specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity
specified 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 3:00 P.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 specified 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" or any successor publication (the
"Composite Quotations") under the heading "Certificates of Deposit." If such
note is not yet published in either H.15(519) or the Composite Quotations by
3:00 P.M., New York City time, on such Calculation Date, then 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
10
<PAGE>
York City time, on such Interest Determination Date, for negotiable
certificates of deposit with a remaining maturity closest to the Index
Maturity specified on the face hereof in an amount that is representative for
a single transaction in that market at that time as quoted by three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the rate of interest 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 hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Interest Rate Basis
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) 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) under the
heading "Commercial Paper," or if not so published prior to 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, 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 specified on the face hereof as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
or 90 days, respectively). 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 calculated by
the Calculation Agent and shall be the Money Market Yield corresponding to the
arithmetic mean of the offered rates as of approximately 11:00 A.M., New York
City time, on such Interest Determination Date for commercial paper of the
Index Maturity specified on the face hereof, placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
rating agency as quoted by three leading dealers in commercial paper in The
City of New York selected by the Calculation Agent; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the rate of interest 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 hereon shall be the Initial Interest
Rate).
"Money Market Yield" shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
11
<PAGE>
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 Interest Rate Basis
specified on the face hereof is the Federal Funds Rate, the Federal Funds Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be 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 3:00 P.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 Composite Quotations under
the heading "Federal Funds/Effective Rate." If such rate is not published in
either H.15(519) or the Composite Quotations by 3:00 P.M., New York City time,
on such Calculation 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 in 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
mentioned in this sentence, the Federal Funds Rate with respect to such
Interest Determination Date will be the same as the Federal Funds Rate in
effect for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of LIBOR. If the Interest Rate Basis specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined on
each Interest Determination Date as follows:
(i) With respect to an Interest Determination Date
relating to a LIBOR Note, LIBOR will be either: (A) if
"LIBOR Telerate" is specified in the applicable Pricing
Supplement or if such Pricing Supplement does not specify a
source for LIBOR, the rate for deposits in the London
interbank market in the Index Currency (as defined below)
having the Index Maturity designated in the applicable
Pricing Supplement commencing on the second London Business
Day immediately following such Interest Determination Date
that appears on the Designated LIBOR Page (as defined below)
as of 11:00 a.m., London time, on such Interest
Determination Date, or (B) if "LIBOR Reuters" is specified
in the applicable Pricing Supplement, the arithmetic mean of
the offered rates (unless the specified Designated LIBOR
Page by its terms provides only for a single rate, in which
case such single rate shall be used) for deposits in the
London interbank market in the Index Currency having the
Index Maturity designated in the applicable Pricing
Supplement and commencing on the second London Business day
immediately following such Interest Determination Date that
appear on the Designated LIBOR
12
<PAGE>
Page as of 11:00 a.m., London time, on such 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. If no rate appears
on the Designated LIBOR Page (or, in the case of clause
(i)(B) above, if the Designated LIBOR Page by its terms
provides for more than a single rate but fewer than two
offered rates appear on such Page), LIBOR in respect of such
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
relating to a LIBOR Note to which the last sentence of
clause (i) above applies, 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 in the applicable
Pricing Supplement commencing on the second London Business
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 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 in the applicable Pricing
Supplement), in the applicable Principal Financial Center
(as defined below), on such Interest Determination Date for
loans made in the Index Currency to leading European banks
having the Index Maturity designated in the applicable
Pricing Supplement commencing on the second London Business
Day immediately following such Interest Determination Date
and in a principal amount that is representative for a
single transaction in such Index Currency in such market at
such time by three major banks in such Principal Financial
Center selected by the Calculation Agent; provided, however,
that if the banks so selected by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR with
respect to such Interest Determination Date will be LIBOR in
effect on such Interest Determination Date.
"Index Currency" means the currency (including currency units and
composite currencies) specified as Index Currency on the face hereof as the
currency with respect to which LIBOR shall be calculated. If no such currency
is specified as Index Currency on the face hereof, the Index Currency shall be
U.S. dollars.
13
<PAGE>
"Designated LIBOR Page" means the display on Page 3750 (or such other
page as is specified in the applicable Pricing Supplement) of the Dow Jones
Telerate Service for the purpose of displaying the London interbank offered
rates of major banks for the applicable Index Currency (or such other page as
may replace that page on that service for the purpose of displaying such
rates), unless "LIBOR Reuters" is designated in the applicable Pricing
Supplement, in which case the Designated LIBOR Page shall be the display on
the Reuters Monitor Money Rates Service for the purpose of displaying the
London interbank offered rates of major banks for the applicable Index
Currency.
Unless provided otherwise in the applicable Pricing Supplement,
"Principal Financial Center" will be the capital city of the country of the
specified Index Currency, except that with respect to U.S. dollars and the
European Currency Unit (the "ECU"), the Principal Financial Center shall be
The City of New York and Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis
specified on the face hereof is the Prime Rate, the Prime Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
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, 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 display designated as page "NYMF" on the Reuters Monitor
Money Rate Service (or such other page as may replace the NYMF page on such
service for the purpose of displaying the prime rate or base lending rate of
major New York City banks) (the "Reuters Screen NYMF Page") 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 rate 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.
Determination of Treasury Rate. If the Interest Rate Basis specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate applicable to the most recent auction of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury
Bills--auction average (investment)," or if not so published by 3:00
14
<PAGE>
P.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 specified 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 in a
particular week, 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 specified 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 hereon
shall be 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, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on
or before each Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law, as the same
may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any Redemption
Date or Repayment Date), as the case may be. Accrued interest hereon shall be
an amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding the
interest factor calculated for each day in the period for which interest is
being paid. The interest factor for each such date shall be computed by
dividing the interest rate applicable to such day by 360 if the Interest Rate
Basis is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or
LIBOR, as specified on the face hereof, or by the actual number of days in the
year if the Interest Rate Basis is the Treasury Rate, as specified on the face
hereof. All percentages resulting from any calculation of the rate of interest
on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded
15
<PAGE>
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).
This Note is unsecured and ranks pari passu with all other unsecured
and unsubordinated indebtedness of the Company.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
or any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in the minimum Authorized Denomination specified on the face hereof or any
amount in excess thereof which is an integral multiple thereof.
In case a Default or an Event of Default with respect to the Notes,
as defined in the Indenture, shall have occurred and be continuing, the
principal hereof and the interest accrued hereon, if any, may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that, without prior
notice to any holders of Notes, the Company and the Trustee may amend the
Indenture and the Notes of any series with the written consent of the holders
of a majority in principal amount of the outstanding Notes of all series
affected by such amendment (all such series voting as one class), and the
holders of a majority in principal amount of the outstanding Notes of all
series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company with any
provision of the Indenture or the Notes of such series; provided that, without
the consent of each holder of the Notes of each series affected thereby, an
amendment or waiver, including a waiver of past defaults, may not: (i) extend
the stated maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such holder's Note, or reduce the principal amount
thereof or the rate of interest thereon (including any amount in respect of
original issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the option of
such holder, or reduce the amount of the principal of an Original Issue
Discount Note that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Note of such series or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due
date therefor; (ii) reduce the percentage in principal amount of outstanding
Notes of the relevant series the consent of whose holders is required for any
such supplemental indenture, for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences
provided for in the Indenture; (iii) waive a Default in the payment of
16
<PAGE>
principal of or interest on any Note of such holder; or (iv) modify any of the
provisions of the Indenture governing supplemental indentures with the consent
of noteholders except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the holder of each outstanding Note affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Note affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default with respect to
the Notes of such series arising therefrom shall be deemed to have been cured,
for every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Except as set forth below, if the principal of, or premium, if any,
or interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Company for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Company will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date. Any payment made under such circumstances in U.S. dollars where the
required payment is in a Specified Currency other than U.S. dollars will not
constitute an Event of Default.
If, pursuant to the treaty (establishing the European Community (the
"EC"), as amended by the treaty on European Union (the "Treaty"), one or more
of the Austrian schilling, Belgian franc, Danish krone, Dutch guilder, Finish
markka, French franc, German mark, Greek drachma, Irish pound, Italian lire,
Luxembourg franc, Pound sterling, Portuguese escudo, Spanish peseta, or
Swedish krona is replaced by the ECU as a currency in its own right, then all
payments in respect of this Note shall be effected in ECU as a currency in its
own right in conformity with legally applicable measures taken pursuant to, or
by virtue of, the Treaty. References herein to the ECU as a currency in its
own right shall be construed as including references to the Euro.
If, pursuant to the Treaty or EC law, other changes are made by the
EC to the nature or composition of the ECU, references herein to the ECU shall
be construed as references to the ECU as so changed.
17
<PAGE>
If payment in respect of this Note is required to be made in the ECU
and the ECU is no longer used as either the unit of account of the EC or a
currency in its own right, replacing all or some of the currencies of the
member countries of the EC, then the Company or its agent shall, on or about
the first Business Day on which the ECU is not so used, choose a substitute
currency (the "Chosen Currency"), which shall be a component currency of the
ECU or U.S. dollars, in which all payments in respect of this Note shall be
made. In the event that an agent of the Company chooses such Chosen Currency,
such choice shall be made without liability after consultation with the
Company and having regard to the availability to the Company of the relevant
currency. Notice of the Chosen Currency so selected shall be mailed to the
registered holder of this Note.
The amount of each payment in a Chosen Currency shall be
computed as of the fourth Business Day prior to each date on which payment is
due on the basis of the equivalent of the ECU in such Chosen Currency. The
equivalent of the ECU in a Chosen Currency as of any date (the "Day of
Valuation") shall be determined by the Exchange Rate by (i) aggregating the
U.S. dollar equivalents of the amounts and components which composed the ECU
(the "Components") as of the last date on which the ECU was used as the unit
of account of the EC and (ii) if the Chosen Currency is a currency other than
U.S. dollars, calculating the equivalent in the Chosen Currency of such
aggregate amount in U.S. dollars. The U.S. dollar equivalent of each of the
Components shall be determined by the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 p.m., Brussels time, on the
Day of Valuation, as obtained by the Exchange Rate Agent from one or more
major banks, as selected by the Company or its agent, in the country of issue
of the component currency in question. If no direct quotations are available
for a Component as of a Day of Valuation from any of the banks selected for
such purpose, the Exchange Rate Agent shall use the most recent direct
quotations for such component obtained by it or on its behalf, provided that
such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation, unless the Company or its agent
decides that the equivalent so calculated is less representative than the U.S.
dollar equivalent calculated on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 p.m., Brussels time, on the Day of Valuation, as
obtained by or on behalf of the Exchange Rate Agent from one or more major
banks, as selected by the Company or its agents, in a country other than the
country of issue of such component currency, in which case the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates. Unless otherwise specified by the Company or its
agent, if there is more than one market for dealing in any component currency
by reason of foreign exchange regulations or for any other reason, the market
to be referred to in respect of such currency shall be that upon which a
non-resident issuer of notes denominated in such currency would purchase such
currency in order to make payments in respect of such notes.
All determinations referred to above made by the Company or its
agents shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on holders of Notes.
18
<PAGE>
So long as this Note shall be outstanding, the Company will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough
of Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Company may designate other agencies for the payment of said
principal, premium, if any, and interest at such place or places (subject to
applicable laws and regulations) as the Company may decide. So long as there
shall be any such agency, the Company shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place,
and rate, and in the coin or currency, herein and in the Indenture prescribed
unless otherwise agreed between the Company and the registered holder of this
Note.
Upon due presentment for registration of transfer of this Note, a new
Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company or any agent of the Company, the registrar of the Notes or the
Trustee may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Registrar, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or the interest on, this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York (without regard to the
conflicts of law principles thereof).
As used herein:
19
<PAGE>
(a) the term "Business Day" means any day that is not a Saturday or
Sunday and that is not a day on which banking institutions are generally
authorized or obligated by law, regulation or executive order to close in The
City of New York and (i) with respect to Notes bearing interest calculated by
reference to LIBOR, such day is also a London Business Day, (ii) with respect
to Notes denominated in a Specified Currency other than U.S. dollars or the
ECU, such day is not a day on which banking institutions are generally
authorized or obligated by law, regulation or executive order to close in the
principal financial center of the country of the Specified Currency, or (iii)
with respect to Notes denominated in the ECU, a day that is a non-ECU clearing
day as determined by the ECU Banking Association in Paris;
(b) the term "London Business Day" means any day on which dealings in
deposits in the Specified Currency are transacted in the London interbank
market;
(c) the term "Market Exchange Rate" shall mean the noon U.S. dollar
buying rate in The City of New York for cable transfers as published by the
Federal Reserve Bank of New York;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(e) all other terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
20
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, 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............
(Cust) (Minor)
Under Uniform Gifts to Minors Act...............
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- ---------------------------------------
- -----------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Signature___________________
Signature Guarantee____________________
Dated:_____________________
21
<PAGE>
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
22
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) the Issuer to repay the within
Note (or portion thereof specified below) pursuant to its terms at a price
equal to the principal amount thereof, together with interest to the Optional
Repayment Date, to the undersigned, at
- ------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof (which shall be increments of $1,000 or such
minimum Authorized Denomination indicated on the face hereof) which the holder
elects to have repaid: __________________; and specify the denomination or
denominations (which shall not be less than $1,000 or such minimum Authorized
Denomination) of the Notes to be issued to the holder for the portion of the
within Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid):
____________________________.
Dated:______________________ _________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
23
<PAGE>
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
CALCULATION AGENT AGREEMENT
---------------------------
THIS AGREEMENT dated as of April 8, 1997, between Donaldson, Lufkin &
Jenrette, Inc., a Delaware corporation (hereinafter called the "Issuer"),
having its principal office at 277 Park Avenue, New York, New York 10172, and
The Bank of New York (hereinafter sometimes called the "Calculation Agent,"
which term shall, unless the context shall otherwise require, include its
successors and assigns), having its principal corporate trust office at 101
Barclay St., Floor 21W, New York, New York 10286.
WHEREAS, the Issuer proposes to issue from time to time Medium-Term
Notes (the "Notes"), to be issued pursuant to the provisions of a debt
indenture dated as of October 25, 1995 (as it may be supplemented or amended
from time to time, the "Indenture") between the Company and The Bank of New
York, as trustee (the "Trustee"). Capitalized terms used in this Agreement and
not otherwise defined herein are used as defined in the Indenture. Certain of
the Notes may bear interest at a floating rate determined by reference to an
interest rate formula or may be in the form of fixed rate notes that bear an
interest rate determined by reference to an interest rate formula
(collectively, the "Floating Rate Notes") and the Issuer desires to engage the
Calculation Agent to perform certain services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Bank of New York as Calculation
Agent for the Floating Rate Notes, upon the terms and subject to the
conditions herein set forth, and The Bank of New York hereby accepts such
appointment. The Calculation Agent shall act as an agent of the Issuer for the
purpose of determining the interest rate or rates of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to
the issuance of any Floating Rate Notes, copies of the proposed forms of such
Notes, including copies of all terms and conditions relating to the
determination of the interest rates thereunder. The Issuer shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation
Agent hereby acknowledges its acceptance of the proposed forms of Floating
Rate Notes previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the issuance of
any Floating Rate Notes prior to the issuance thereof and, at the time of such
issuance,
<PAGE>
shall deliver to the Calculation Agent all information in the possession of
the Issuer for the calculation of the applicable interest rates thereunder.
The Calculation Agent shall calculate the applicable interest rates for
Floating Rate Notes in accordance with the terms of such Floating Rate Notes,
the Indenture and the provisions of this Agreement. In addition, the
Calculation Agent shall maintain, or cause to be maintained, records
permitting it to calculate the applicable interest rate as of the applicable
Interest Determination Date (as defined in the Floating Rate Notes) in case
the applicable rates which are to be published, publicly announced or
displayed on the applicable Calculation Date (as defined in the Floating Rate
Notes) are not available on such Calculation Date.
4. Promptly following the determination of each change to the
interest rate or the determination of the interest rate (for fixed rate notes
that bear an interest rate determined by reference to an interest rate
formula) applicable to any Floating Rate Note, the Calculation Agent will
cause to be forwarded to the Issuer, the Trustee and any paying agent for such
Note information regarding the interest rate then in effect for such Floating
Rate Note.
5. The Issuer will pay such compensation as is set forth in that
certain letter dated April 8, 1997 from the Calculation Agent to the Issuer
and the expenses, including reasonable counsel's and other professionals'
fees, incurred by the Calculation Agent in connection with its duties
hereunder to the Calculation Agent upon receipt of such invoices as the Issuer
shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any losses,
liabilities, costs, claims, actions or demands which it may incur or sustain
or which may be made against it in connection with its appointment or the
exercise of its powers and duties hereunder as well as the reasonable costs,
including reasonable fees and expenses of counsel in defending any claim,
action or demand, except such as may result from the negligence or wilful
misconduct of the Calculation Agent or any of its employees. The Calculation
Agent shall incur no liability and shall be indemnified and held harmless by
the Issuer for, or in respect of, any actions taken or suffered to be taken in
good faith by the Calculation Agent in reliance upon (i) the written opinion
or advice of counsel or other professional advisers satisfactory to it or (ii)
written instructions from the Issuer. The Calculation Agent shall not be
liable for any error resulting from the use of or reliance on a source of
information used in good faith and with due care to calculate any interest
rate hereunder. The provisions of this Section shall survive the termination
of this Agreement.
7. The Calculation Agent accepts its obligations herein set forth
upon the terms and conditions hereof, including the following, to all of which
the Issuer agrees:
2
<PAGE>
(i) in acting under this Agreement and in connection with
the Notes, the Calculation Agent, acting as agent for the
Issuer, does not assume any obligation towards, or any
relationship of agency or trust for or with, any of the
holders of the Notes;
(ii) unless herein otherwise specifically provided, any
order, certificate, notice, request or communication from
the Issuer made or given under any provision of this
Agreement shall be sufficient if signed or given by any
person whom the Calculation Agent reasonably believes to be
a duly authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform
only such duties as are expressly set forth herein and any
duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall
incur no liability for or in respect of any action taken or
omitted to be taken or anything suffered in good faith by it
in reliance upon anything contained in a Floating Rate Note,
the Indenture or any information supplied to it by the
Issuer pursuant to this Agreement, including the information
to be supplied pursuant to paragraph 3 above.
(v) the Calculation Agent, whether acting for itself or in
any other capacity, may become the owner or pledgee of Notes
with the same rights as it would have had if it were not
acting hereunder as Calculation Agent; and
(vi) the Calculation Agent shall incur no liability
hereunder except for loss sustained by reason of its own
negligence or wilful misconduct.
8. (a) The Issuer agrees to notify the Calculation Agent at least 30
days prior to the first issuance of any Floating Rate Note (other than the
Floating Rate Notes in the form previously delivered to the Calculation Agent)
with an interest rate to be determined by reference to any other formula that
would require the Calculation Agent to select banks, dealers or other
financial institutions (the "Reference Banks") for purposes of quoting rates.
Promptly thereafter, the Calculation Agent will notify the Issuer and the
Trustee of the names and addresses of such Reference Banks. Forthwith upon any
change in the identity of any Reference Bank, the Calculation Agent shall
notify the Issuer and the Trustee of such change. The Calculation Agent shall
not be responsible to the Issuer or any third party for any failure of any
Reference Bank to fulfill its duties or meet its obligations as a Reference
Bank or as a result of the Calculation Agent's having acted (except in the
event of negligence or wilful misconduct) on any quotation or
3
<PAGE>
other information given by any Reference Bank that subsequently may be found to
be incorrect.
(b) Except as provided below, the Calculation Agent may at any time
resign as Calculation Agent by giving written notice to the Issuer and the
Trustee of such intention on its part, specifying the date on which its
desired resignation shall become effective, provided that such notice shall be
given not less than 30 days prior to the said effective date unless the Issuer
and the Trustee otherwise agree in writing; provided, however, if the
Calculation Agent has given not less than 30 days' prior notice of its desired
resignation, and during such 30 days a successor Calculation Agent has not
accepted its appointment as successor Calculation Agent, the Calculation Agent
so resigning may petition any court of competent jurisdiction for the
appointment of a successor Calculation Agent. The Issuer covenants that it
shall appoint a successor Calculation Agent as soon as practicable after
receipt of any notice of resignation hereunder.
Except as provided below, the Calculation Agent may be removed by the
filing with it and the Trustee of an instrument in writing signed by the
Issuer specifying such removal and the date it shall become effective (such
effective date being at least 30 days after said filing) provided, however,
that if a successor Calculation Agent has not accepted its appointment as
successor Calculation Agent, the Calculation Agent so removed may petition a
court of competent jurisdiction for the appointment of a successor Calculation
Agent. Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as provided herein of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent.
Upon its resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of its compensation and the
reimbursement of all expenses (including reasonable counsel and other
professionals' fees) incurred by such retiring Calculation Agent pursuant to
paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be removed,
or shall become incapable of acting or shall be adjudged bankrupt or
insolvent, or liquidated or dissolved, or an order is made or an effective
resolution is passed to wind up the Calculation Agent, or if the Calculation
Agent shall file a voluntary petition in bankruptcy or make an assignment for
the benefit of its creditors, or shall consent to the appointment of a
receiver, administrator or other similar official of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet
its debts as they mature, or if a receiver, administrator or other similar
official of the Calculation Agent or of all or any substantial part of its
4
<PAGE>
property shall be appointed, or if any order of any court shall be entered
approving any petition filed by or against the Calculation Agent under the
provisions of any applicable bankruptcy or insolvency law, or if any public
officer shall take charge or control of the Calculation Agent or its property
or affairs for the purpose of rehabilitation, conservation or liquidation,
then a successor Calculation Agent shall be appointed by the Issuer by an
instrument in writing filed with the successor Calculation Agent and the
Trustee. Upon the appointment as aforesaid of a successor Calculation Agent
and acceptance by the latter of such appointment, the former Calculation Agent
shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor, the Issuer and the Trustee an instrument
accepting such appointment hereunder, and thereupon such successor Calculation
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as the Calculation Agent
hereunder, and such predecessor, upon payment of its compensation, charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation
Agent.
(e) Any corporation or other entity into which the Calculation Agent
may be merged or converted or any corporation or other entity with which the
Calculation Agent may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Calculation Agent shall sell
or otherwise transfer all or substantially all of its assets or business
shall, to the extent permitted by applicable law, be the successor Calculation
Agent under this Agreement without the execution or filing or any paper or any
further act on the part of any of the parties hereto. Notice of any such
merger, conversation, consolidation or sale shall forthwith be given to the
Issuer and the Trustee.
(f) The provision of paragraph 6 hereof shall survive any resignation
or removal of the Calculation Agent hereunder.
9. Any notice required to be given hereunder shall be delivered in
person, sent by letter or facsimile or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
business days by letter or facsimile), in the case of the Issuer, to it at the
address set forth in the heading of this Agreement, Attention: Treasurer
(telephone: (212) 892-4280; telecopier: (212) 892-4760); in the case of the
Calculation Agent, to it at the address set forth in the heading of this
Agreement, Attention: Corporate Trust Trustee Administration (telephone: (212)
815-2745; facsimile: (212) 815- 5915); and in the case of the Trustee, to it
at 101 Barclay St., Floor 21W, New York, New York 10286, Attention: Corporate
Trust Administration (telephone: (212) 815-2745; facsimile: (212) 815-5915;
or, in any case, to any other address of
5
<PAGE>
which the party receiving notice shall have notified the party giving such
notice in writing.
10. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
12. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
13. In the event of any conflict relating to the rights or
obligations of the Calculation Agent in connection with the calculation of the
interest rate on the Floating Rate Notes, the relevant terms of this Agreement
shall govern such rights and obligations.
6
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date and year first above written.
DONALDSON, LUFKIN & JENRETTE INC.
By:
----------------------------------------
Name:
Title:
7
<PAGE>
THE BANK OF NEW YORK
By:
----------------------------------------
Name:
Title:
8
<PAGE>
[Davis Polk & Wardwell Letterhead]
(212) 450-4571
April 10, 1997
Re: DONALDSON, LUFKIN & JENRETTE, INC. MEDIUM-TERM NOTES
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
We have acted as special tax counsel for Donaldson, Lufkin &
Jenrette, Inc. (the "Company") in connection with the registration of
$300,000,000 of the Company's Medium-Term Notes (the "Notes"). We hereby
confirm the opinion (the "Opinion") set forth under the caption "United States
Tax Considerations" in the prospectus supplement (the "Prospectus Supplement")
dated April 8, 1997 that supplements the Registration Statement on Form S-3
filed by the Company with the Securities and Exchange Commission on August 15,
1996.
We hereby consent to the use of our name under the caption "United
States Tax Considerations" in the Prospectus Supplement. The issuance of such
a consent does not concede that we are an "Expert" for the purposes of the
Securities Act of 1933.
Very truly yours,
/s/ Davis Polk & Wardwell
