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
November 6, 1997
DATE OF REPORT (Date of earliest event reported)
INGERSOLL-RAND COMPANY
(Exact name of registrant as specified in its charter)
NEW JERSEY 1-985 13-5156640
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification
Number)
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
(Address of principal executive offices)
(201) 573-0123
(Registrant's telephone number, including area code)
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Item 5. Other Events
------------
Pursuant to the terms and conditions of a Selling Agency Agreement
among Ingersoll-Rand Company (the "Registrant"), Salomon Brothers Inc,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase Securities, Inc.
and J.P. Morgan Securities Inc., dated November 6, 1997, the Registrant will
from time to time issue its Medium-Term Notes, Series B, Due Nine Months or
More from Date of Issue (the "Notes"), having an aggregate initial offering
price of up to $750,000,000 (or such greater amount if Notes are issued at
an original issue discount as shall result in aggregate gross proceeds to
the Company of $750,000,000).
Item 7. Exhibits
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Exhibits:
Exhibit 1(a): Selling Agency Agreement dated November 6, 1997 among
Ingersoll-Rand Company, Salomon Brothers Inc, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities, Inc. and J.P. Morgan Securities Inc.
Exhibit 4(a): Forms of Fixed Rate and Floating Rate Medium-Term Notes,
Series B, Due Nine Months or More from Date of Issue,
having an aggregate initial offering price of up to
$750,000,000 (or such greater amount if Notes are issued at
an original issue discount as shall result in aggregate
gross proceeds to the Company of $750,000,000).
<PAGE>
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.
INGERSOLL-RAND COMPANY
(Registrant)
By: /s/ Gerard V. Geraghty
-------------------------
Name: Gerard V. Geraghty
Title: Vice President and Comptroller
Date: November 6, 1997
<PAGE>
Exhibit Index
Exhibits to Form 8-K
Number in Sequential
Exhibit Table Exhibit Page Number
- ------------- ------- -----------
1(a) Selling Agency Agreement dated
November 6, 1997 among Ingersoll-
Rand Company, Salomon Brothers Inc,
Merrill Lynch Pierce, Fenner &
Smith Incorporated, Chase
Securities, Inc. and J.P. Morgan
Securities Inc.
4(a) Forms of Fixed Rate and Floating
Rate Medium-Term Notes, Series B,
Due Nine Months or More from Date
of Issue, having an aggregate
initial offering price of up to
$750,000,000 (or such greater
amount if Notes are issued at an
original issue discount as shall
result in aggregate gross proceeds
to the Company of $750,000,000).
<PAGE>
Exhibit 1(a)
<PAGE>
Exhibit 4(a)
INGERSOLL-RAND COMPANY
$750,000,000 Medium-Term Notes, Series B
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
November 6, 1997
New York, New York
Chase Securities Inc.
270 Park Avenue
New York, N.Y. 10017
J.P. Morgan Securities Inc.
60 Wall Street
New York, N.Y. 10260
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
250 Vesey Street
New York, N.Y. 10281
Salomon Brothers Inc
Seven World Trade Center
New York, N.Y. 10048
Dear Sirs:
Ingersoll-Rand Company, a New Jersey corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of its Medium-Term Notes, Series B, Due Nine Months or More from
Date of Issue (the "Notes"), having an initial aggregate offering price of up
to $750,000,000 (or such greater amount if Notes are issued at an original
issue discount, as shall result in aggregate gross proceeds to the Company of
$750,000,000). The Notes will be issued under an indenture (as supplemented,
the "Indenture") dated as of August 1, 1986 between the Company and The Bank
of New York, as trustee (the "Trustee"). Unless otherwise specifically
provided for and set forth in a Pricing Supplement (as defined below), the
Notes will be issued in minimum denominations of $1,000 and in denominations
exceeding such amount by integral multiples of $1,000, will be issued only in
fully registered form and will have the interest rates, maturities and, if
applicable, other terms set forth in such Pricing Supplement. The Notes will
be issued, and the terms thereof established, in accordance with the
Indenture and the Medium-Term Notes Administrative Procedures attached hereto
as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in
Section 2(b)) modifies or otherwise supersedes such Procedures with respect
to the Notes issued pursuant to such Terms Agreement). The Procedures may be
amended only by written agreement of the Company and you after notice to the
Trustee. For the purposes of this Agreement, the term "Agent" shall refer to
any of you acting solely in the capacity as agent for the Company pursuant to
Section 2(a) and not as principal (collectively, the "Agents"), the term
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"Purchaser" shall refer to one of you acting solely as principal pursuant to
Section 2(b) and not as agent, and the term "you" shall refer to you collec-
tively whether at any time any of you is acting in both such capacities or in
either such capacity. In acting under this Agreement, in whatever capacity,
each of you is acting individually and not jointly.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Number: 333-34029), including a basic
prospectus, which has become effective, for the registration under the
Act of $750,000,000 aggregate principal amount of debt securities (the
"Securities"), including the Notes. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in such
registration statement, or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof
(the "Prospectus Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement (each a "Pricing Supplement") specifying the
interest rates, maturity dates and, if appropriate, other similar terms
of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the
date of a Terms Agreement or any acceptance of the Company of an offer
to purchase Notes and at the date of delivery by the Company of any
Notes sold hereunder (a "Closing Date"), (i) the Registration Statement,
as amended as of any such time, and the Prospectus, as supplemented as
of any such time, and the Indenture will comply in all material respects
with the applicable requirements of the Act, the Trust Indenture Act of
1939 (the "Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and (iii) the Prospectus, as
supplemented as of any such time, will 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; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by any of you specifically for inclusion in the Registration Statement
or the Prospectus (or any supplement thereto).
<PAGE>
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject as
to enforcement to bankruptcy, insolvency, reorganization, moratorium,
and other similar laws relating to or affecting creditors' rights
generally and to general equity principles, and such Notes will have
been duly authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, reorganization, moratorium, and other similar
laws relating to or affecting creditors' rights generally and to general
equity principles.
(d) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each date
after the date hereof on which a document incorporated by reference in
the Registration Statement is filed. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the Registration
Statement at the Effective Date. "Prospectus" shall mean the Basic
Prospectus as supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time. "Rule 415" and
"Rule 424" refer to such rules under the Act. Any reference herein to
the Registration Statement, the Basic Prospectus, the Prospectus
Supplement 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 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, the Prospectus Supplement or the Prospec-
tus, as the case may be, deemed to be incorporated therein by reference.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
conditions set forth herein, the Company hereby authorizes each of the Agents
to act as its agent to solicit offers for the purchase of all or part of the
Notes from the Company.
On the basis of the representations and warranties, and subject to
the terms and conditions set forth herein, each of the Agents 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
in the Prospectus (and any supplement thereto) and in the Procedures. Each
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such Agent shall not
<PAGE>
be obligated to disclose the identity of any purchaser or have any liability
to the Company in the event any such purchase is not consummated for any
reason. Except as provided in Section 2(b), under no circumstances will any
Agent be obligated to purchase any Notes for its own account. It is
understood and agreed, however, that any Agent may purchase Notes as
principal pursuant to Section 2(b).
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 instructions from
the Company, the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has advised
them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in the form of a discount, in accordance
with the schedule relating to each series of Notes set forth in Exhibit B
hereto. Such commission shall be payable as specified in the Procedures.
If the Company shall default in its obligations to deliver Notes to
a purchaser whose offer it has accepted, the Company shall indemnify and hold
each of you harmless against any loss, claim or damage arising from or as a
result of such default by the Company.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for
the Company at such time and in such amounts as such Agent deems advisable.
Subject to the following paragraph, the Company may from time to time offer
Notes for sale directly to investors; provided, however, that so long as this
Agreement is in effect the Company shall not solicit or accept offers to
purchase Notes through any agent other than an Agent.
The Company expressly reserves the right to appoint other persons,
partnerships or corporations ("Additional Agents") to act as its agent to
solicit offers for the purchase of Notes without obtaining the consent of the
Agents; provided, the Company shall give the Agents notice of such
appointment, each Additional Agent shall be named in a Pricing Supplement and
shall either execute this Agreement and become a party hereto or shall enter
into a selling agency agreement with the Company on terms substantially
similar to those contained herein; thereafter the term Agent, or "you" as
used in this Agreement shall mean each Agent and each such Additional Agent.
No exercise by the Company of its rights described in this paragraph shall be
construed as altering, amending or terminating the rights and obligations of
the other Agents that are parties to this Agreement.
(b) Subject to the terms and conditions stated herein, whenever
the Company and any of you determines that the Company shall sell Notes
directly to any of you as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and a supplemental agreement
relating to such sale. Each such supplemental agreement (which may be either
an oral, confirmed in writing, or written agreement) is herein referred to as
a "Terms Agreement". Each Terms Agreement shall describe the Notes to be
purchased by the Purchaser pursuant thereto and shall specify the aggregate
principal amount of such Notes, the price to be paid to the Company for such
Notes, the maturity date of such Notes, the rate at which interest will be
paid on such Notes, the dates on which interest will be paid on such Notes
<PAGE>
and the record date with respect to each such payment of interest, the
Closing Date for the purchase of such Notes, the place of delivery of the
Notes and payment therefor, the method of payment and any requirements for
the delivery of opinions of counsel, certificates from the Company or its
officers or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify the
period of time referred to in Section 4(m). Any written Terms Agreement may
be in the form attached hereto as Exhibit C. The Purchaser's commitment 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 set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Company in
the net amount due to the Company for such Notes by the method and in the
form set forth in the Procedures unless otherwise agreed to between the
Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in
a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by
such Purchaser at a price equal to 100% of the principal amount thereof less
a percentage equal to the commission applicable to an agency sale of a Note
of identical maturity and (ii) may be resold by such Purchaser at varying
prices from time to time or, if set forth in the applicable Terms Agreement
and Pricing Supplement, at a fixed public offering price. In connection with
any resale of Notes purchased, a Purchaser may use a selling or dealer group
and may reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto. Any Agent may sell Notes to any dealer
at a discount and, unless otherwise specified in the applicable Pricing
Supplement, such discount allowed to any dealer will not be in excess of the
discount to be received by such Agent from the Company.
3. Offering and Sale of Notes. Each Agent and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act, (ii) a supplement relating to any offering
of Notes providing solely for the specification of or a change in the
maturity dates, interest rates, issuance prices or other similar terms
of any Notes or (iii) a supplement relating to an offering of Securities
other than the Notes) unless the Company has furnished each of you a
copy for your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to you of such filing.
The Company will promptly advise each of you (i) when the Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination of any offering
of Notes, any amendment of the Registration Statement shall have been
<PAGE>
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circum-
stances under which they were made, not misleading, or if it shall be
necessary to amend the Registration Statement or to supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so notified by
the Company, each of you shall forthwith suspend such solicitation and
cease using the Prospectus as then supplemented), (ii) prepare and file
with the Commission, subject to the first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance and (iii) supply such
supplemented Prospectus to each of you in such quantities as you may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation or
filing of such amendment or supplement are satisfactory in all material
respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an
amendment to the Registration Statement, if such an amendment is
required, resume your obligation to solicit offers to purchase Notes
hereunder.
(c) The Company, during the period when a prospectus relating to
the Notes is required to be delivered under the Act, will file promptly
all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish
to each of you copies of such documents. In addition, on the date on
which the Company makes any announcement to the general public
concerning earnings or concerning any other event which is required to
be described, or which the Company proposes to describe, in a document
filed pursuant to the Exchange Act, the Company will furnish to each of
you the information contained in such announcement. The Company also
will furnish to each of you copies of all press releases or
announcements furnished to news or wire services and any other material
press releases and announcements. The Company will immediately notify
each of you of (i) any decrease in the rating of the Notes or any other
debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act) or (ii) any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that does not
<PAGE>
indicate the direction of the possible change, as soon as the Company
learns of any such decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus may be required by the
Act, as many copies of the Prospectus and any supplement thereto as you
may reasonably request.
(f) The Company will use its best efforts to arrange for the
qualification of the Notes for sale under the laws of such jurisdictions
as any of you may designate, will maintain such qualifications in effect
so long as required for the distribution of the Notes, and will arrange
for the determination of the legality of the Notes for purchase by
institutional investors, provided that the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to file annual reports or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business and operations of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this
Agreement, the Procedures and the performance by the Company and you of
its and your respective obligations hereunder and thereunder as any of
you may from time to time reasonably request prior to the termination of
this Agreement.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration Statement,
the Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement, any Terms Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including fees of
counsel, incurred in compliance with Section 4(f), the fees and
disbursements of the Trustee and the fees of any agency that rates the
Notes, (ii) reimburse each of you as requested for all out-of-pocket
expenses (including without limitation advertising expenses approved in
advance by the Company), if any, incurred by you in connection with this
Agreement and (iii) pay the fees and expenses of your counsel incurred
in connection with this Agreement and any Terms Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time
of such acceptance, as though made at and as of such time, and a
<PAGE>
covenant that such representations and warranties will be true and
correct at the time of delivery to the purchaser of the Notes relating
to such acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of such
Notes, of any other Notes to be issued on or prior to such settlement
date and of any other Securities to be issued and sold by the Company on
or prior to such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the
Registration Statement. The Company will inform you promptly upon your
request of the aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(j) During each period during which, in the opinion of counsel for
the Agents, a Prospectus relating to the Notes is required to be
delivered under the Act (each a "Marketing Period"), (i) each time the
Company files with the Commission an Annual Report on Form 10-K or a
Quarterly Report on Form 10-Q and (ii) each time that the Registration
Statement or the Prospectus is amended or supplemented in a manner
which, in the opinion of counsel for the Agents, is material (other than
by an amendment or supplement relating to any offering of Securities
other than the Notes or providing solely for the specification of or a
change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto), the Company
will, in the case of clause (i) automatically, and, in the case of
clause (ii) upon the request by any Agent, deliver or cause to be
delivered promptly to each of you a certificate of the Company, signed
by an officer or officers of the Company, (x) dated the date of such
amendment, supplement or filing or (y) if such amendment, supplement or
filing was not filed during a Marketing Period, as of the first day of
the next succeeding Marketing Period, in form reasonably satisfactory to
you, of the same tenor as the certificate referred to in Section 5(d)
but modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the Commission.
(k) During each Marketing Period, (i) each time the Company files
with the Commission an Annual Report on Form 10-K or a Quarterly Report
on Form 10-Q and (ii) each time that the Registration Statement or the
Prospectus is amended or supplemented in a manner which, in the opinion
of counsel for the Agents, is material (other than by an amendment or
supplement (a) relating to any offering of Securities other than the
Notes, (b) providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other similar
terms of any Notes sold pursuant hereto or (c) setting forth or
incorporating by reference financial statements or other information as
of and for a fiscal quarter, unless, in the case of clause (c) above, in
the reasonable judgment of any of you, such financial statements or
other information are of such a material nature that an opinion of
counsel should be furnished), the Company shall, in the case of clause
(i) automatically, and, in the case of clause (ii) upon the request by
any Agent, furnish or cause to be furnished promptly to each of you a
<PAGE>
written opinion of counsel of the Company satisfactory to each of you,
(x) dated the date of such amendment, supplement or filing or (y) if
such amendment, supplement or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period, in
form satisfactory to each of you, of the same tenor as the opinion
referred to in Section 5(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement or,
in lieu of such opinion, counsel last furnishing such an opinion to you
may furnish each of you with a letter to the effect that you may rely on
such last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement).
(l) During each Marketing Period, (i) each time the Company files
with the Commission an Annual Report on Form 10-K or a Quarterly Report
on Form 10-Q and (ii) each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate amended
or supplemental financial information which, in the opinion of counsel
for the Agents, is material, the Company shall cause its independent
public accountants promptly (within 45 days after the filing of a
Quarterly Report on Form 10-Q and within 90 days after the filing of an
Annual Report on Form 10-K), in the case of clause (i) automatically,
and, in the case of clause (ii) upon the request by any Agent, to
furnish each of you a letter, (x) dated the date of such amendment,
supplement or filing or (y) if such amendment, supplement or filing was
not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, in form satisfactory to each of you, of the
same tenor as the letter referred to in Section 5(e) 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, however, that, if the Registration Statement or
the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the
scope of such letter, which shall be satisfactory in form to each of
you, to the unaudited financial statements, the related "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and any other information of an accounting, financial or
statistical nature included in such amendment or supplement, unless, in
the reasonable judgment of any of you, such letter should cover other
information or changes in specified financial statement line items.
(m) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the
prior consent of the Purchaser thereunder, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Notes being sold pursuant to such Terms Agreement).
(n) The Company confirms as of the date hereof, and each
acceptance by the Company of an offer to purchase Notes will be deemed
to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
<PAGE>
Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Securities and Exchange Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if
the information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
5. Conditions to the Obligations of the Agents. The obligations
of each Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and as of each
Closing Date, to the accuracy of the statements of the Company made in any
certificates as of the date thereof pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to each Agent the opinion of
Patricia Nachtigal, Vice President and General Counsel of the Company,
dated the Execution Time, to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of New Jersey, with corporate power and authority to own
its properties and conduct its business as described in each
Prospectus;
(ii) to the best of her knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject, other than as set forth in
the Prospectus and other than litigation incident to the kind of
business conducted by the Company and its subsidiaries which
individually and in the aggregate is not material to the Company
and its subsidiaries taken as a whole; and to the best of her
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iii) this Agreement and the Terms Agreements, if any,
with respect to the Notes have been duly authorized, executed and
delivered by the Company;
(iv) the Notes have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and
<PAGE>
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, subject to bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Notes and the Indenture conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(v) the Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(vi) the issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture,
this Agreement and the Terms Agreements, if any, with respect to
the Notes and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of the Company
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument which is material
to the Company and its subsidiaries taken as a whole and is known
to her to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company or
any of its significant subsidiaries is subject, nor will such
action result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or the By-Laws of the
Company or any statute or any order, rule or regulation known to
her of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or any such regulatory authority or other
governmental agency or body is required for the issue and sale of
the Notes or the consummation of the other transactions
contemplated by this Agreement, the Terms Agreements, if any, or
the Indenture, except such as have been obtained under the Act, the
Exchange Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Notes by the Agents; and
(vii) the Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Execution Time for the
Notes (other than the financial statements and related schedules
therein, as to which she need express no opinion) comply as to form
in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder; she
has no reason to believe that, as of the effective date of the
Registration Statement, either the Registration Statement or the
Prospectus (or, as of its date, any further amendment or supplement
thereto made by the Company prior to the Execution Time) contained
<PAGE>
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of the Execution
Time, either the Registration Statement or the Prospectus (or any
such further amendment or supplement thereto) contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
In rendering such opinion, Patricia Nachtigal may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New Jersey, the State of New York or the United States, to the
extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agent and (B) as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus in this
paragraph (b) include any supplements thereto at the date such opinion
is rendered.
(c) Each Agent shall have received from Simpson Thacher &
Bartlett, counsel for the Agents, such opinion or opinions, dated the
Execution Time, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to each Agent a certificate
or certificates of the Company, signed by an officer or officers of the
Company, dated the Execution Time, to the effect that the signers of
such certificate have examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the date hereof with the same effect as if made on the date
hereof and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied as a condition to the obligation of the Agents to solicit
offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (finan-
cial or other), earnings, business or properties of the Company and
its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
<PAGE>
(e) At the Execution Time, the independent accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
shall have furnished to each Agent a letter, dated as of the Execution
Time, of the type described in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 72 covering such
matters as the Agents may reasonably request and in form and substance
satisfactory to the Agents.
(f) Prior to the Execution Time, the Company shall have furnished
to each Agent such further information, documents, certificates and
opinions of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at
any time by the Agents. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Simpson Thacher & Bartlett, counsel for the
Agents, at 425 Lexington Avenue, New York, New York, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations
of a Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the
date of the related Terms Agreement and as of the Closing Date for such
Notes, to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed and to
the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the Purchaser
in a Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of the Company, dated as of the Closing Date,
to the effect set forth in Section 5(d) (except that references to the
Prospectus shall be to the Prospectus as supplemented as of the date of
such Terms Agreement), (ii) the opinion of Patricia Nachtigal, Vice
President and General Counsel for the Company (or such successor counsel
as the Company shall designate in a written notice to the Agents), dated
as of the Closing Date, to the effect set forth in Section 5(b),
(iii) the opinion of Simpson Thacher & Bartlett, counsel for the
Purchaser, dated as of the Closing Date, to the effect set forth in
Section 5(c), and (iv) the letter of Price Waterhouse LLP, independent
accountants for the Company, dated as of the Closing Date, to the effect
set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as
the Purchaser may reasonably request.
<PAGE>
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement and the applicable Terms Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its counsel, such
Terms Agreement and all obligations of the Purchaser thereunder and with
respect to the Notes subject thereto may be canceled at, or at any time prior
to, the respective Closing Date by the Purchaser. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to purchase and pay
for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, at the Closing Date therefor, any
condition set forth in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to purchase
and pay for any Note pursuant to a solicitation by any of the Agents shall
have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development
specified in any of Sections 9(b)(i) through (v) shall have occurred (with
the judgment of the Agent which presented the offer to purchase such Note
being substituted for any judgment of a Purchaser required therein) the
effect of which is, in the judgment of the Agent which presented the offer to
purchase such Note, so material and adverse as to make it impractical or
inadvisable to proceed with the sale and delivery of such Note (it being
understood that under no circumstance shall any such Agent have any duty or
obligation to the Company or to any such person to exercise the judgment
permitted to be exercised under this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each of you against any losses, claims, damages
or liabilities, joint or several, to which you may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus or any other prospectus relating to
the Notes, or any amendment or supplement thereto (including, without
limitation, any Pricing Supplement), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse each of you for any legal or other expenses (subject to
your providing prior written notification to the Company of the engagement of
legal counsel) reasonably incurred by you in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus or any other prospectus relating to
the Notes, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by any of you
expressly for use in the Prospectus relating to such Notes; provided further,
<PAGE>
however, that the foregoing indemnity with respect to preliminary
prospectuses shall not inure to the benefit of any Agent from whom the person
asserting any such losses, claims, damages or liabilities purchased Notes if
such untrue statement or omission made in any preliminary prospectus is
eliminated or remedied in the Prospectus relating to such Notes and if a copy
of the Prospectus relating to such Notes (excluding documents incorporated by
reference) has not been sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person provided,
however, that such Prospectus shall have been timely provided to the
applicable Agent by the Company in accordance with the procedures outlined
herein and in the Administrative Procedures.
(b) Each of you agrees, severally, to indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus or any
other prospectus relating to the Notes, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus or any other prospectus relating to the Notes, or
any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by the relevant Agent expressly
for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating
or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party, provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have been advised by its counsel that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate (whether or not such representation by the same counsel has
been proposed) under applicable standards of professional conduct due to
actual or potential differing interests between them, the indemnified party
or parties shall have the right to select separate counsel or participate in
the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party
of its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
<PAGE>
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by you in the
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and you
on the other from the offering of the Notes to which such loss, claim, damage
or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and you on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and you on the other shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total commissions
received by you. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or you on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and each of you agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even
if you 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 above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include 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 subsection (d), none
of you shall be required to contribute any amount in excess of the amount by
which the commissions received by such of you in connection with the sale of
such Notes exceeds the amount of any damages which you have 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 Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Your obligations in this subsection (d) to
contribute are several in proportion to your respective obligations with
respect to such Notes and not joint.
<PAGE>
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any of you within the meaning of the Act; and your obligations under
this Section 8 shall be in addition to any liability which each of you may
otherwise have and shall extend, upon the same terms and conditions to each
officer and director of the Company and to each person, if any, who controls
the Company within the meaning of the Act.
9. Termination. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be
terminated either by the Company as to any of you or by any of you insofar as
this Agreement relates to any of you, by giving written notice of such
termination to you or the Company, as the case may be. This Agreement shall
so terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other
party hereto, except as provided in the fourth paragraph of Section 2(a),
Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of any payment for any Note to be purchased thereunder, if prior to
such time there shall have occurred any of the following: (i) subsequent to
the agreement to purchase such Note, any change, or any development involving
a prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which is, in the judgment of the
Purchaser, so material and adverse as to make it impracticable or inadvisable
to proceed with the offering or delivery of such Note; (ii) subsequent to the
agreement to purchase such Note, any decrease in the rating of any of the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or any
notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of
the possible change; (iii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, Inc.; (iv) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (v) the outbreak or material
escalation of hostilities involving the United States or the declaration, on
or after the date hereof, by the United States of a national emergency or
war, the effect of which on financial markets is to make it, in the
reasonable judgment of the affected Agent, impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes on the terms
and in the manner contemplated in the Prospectus or the purchase of Notes
from the Company as principal pursuant to the applicable Terms Agreement, as
the case may be.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company
or its officers and of you set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by
or on behalf of you or the Company or any of the directors, officers,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of
Sections 4(h) and 8 hereof shall survive the termination or cancellation of
this Agreement. The provisions of this Agreement (including without
limitation Section 7 hereof) applicable to any purchase of a Note for which
<PAGE>
an agreement to purchase exists prior to the termination hereof shall survive
any termination of this Agreement. If at the time of termination of this
Agreement any Purchaser shall own any Notes with the intention of selling
them, the provisions of Section 4 shall remain in effect until such Notes are
sold by the Purchaser.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 200 Chestnut Ridge Road,
Woodcliff Lake, New Jersey 07675, attention of Vice President and General
Counsel.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, their respective successors, the
directors, officers, employees, agents and controlling persons referred to in
Section 8 hereof and, to the extent provided in Section 7, any person who has
agreed to purchase Notes, and no other person will have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
INGERSOLL-RAND COMPANY
By: /s/ William J. Armstrong
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
SALOMON BROTHERS INC
By: /s/ Martha D. Bailey
Title: Vice President
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: /s/ Scott Primrose
Title: Authorized Signatory
CHASE SECURITIES INC.
By: /s/ Kevin Kulak
Title: Vice President
J.P. MORGAN SECURITIES INC.
By: /s/ T. Kelley Millet, M.D.
Title: Managing Director
<PAGE>
SCHEDULE I
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, N.Y. 10017
Attn: Medium-Term Note Department
Tel: (212) 834-4421
Fax: (212) 834-6081
J.P. Morgan Securities Inc.
60 Wall Street
New York, N.Y. 10260
Attn: Capital Markets Department
Tel: (212) 648-0741
Fax: (212) 648-5939
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, N.Y. 10281
Attn: MTN Product Management
Tel: (212) 449-7476
Fax: (212) 449-2234
Salomon Brothers Inc
Seven World Trade Center
New York, N.Y. 10048
Attn: Medium-Term Note Department
Tel: (212) 783-6848
Fax: (212) 783-2274
<PAGE>
EXHIBIT A - ADMINISTRATIVE PROCEDURES
<PAGE>
EXHIBIT A
INGERSOLL-RAND COMPANY
Medium-Term Note Administrative Procedures
November 6, 1997
The Medium-Term Notes, Series B, Due Nine Months or More from Date
of Issue (the "Notes") of Ingersoll-Rand Company (the "Company") are to be
offered on a continuing basis. Salomon Brothers Inc, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase Securities Inc.,
and J.P. Morgan Securities Inc., as agents (each an "Agent"), have agreed to
solicit purchases of Notes issued in fully registered form. The Agents will
not be obligated to purchase Notes for their own account. The Notes are
being sold pursuant to a Selling Agency Agreement between the Company and the
agents named therein (including the Agents) dated the date hereof (the
"Agency Agreement"). The Notes will rank equally with all other unsecured
and unsubordinated debt of the Company and have been registered with the
Securities and Exchange Commission (the "Commission"). The Notes will be
issued under an Indenture dated as of August 1, 1986 (as supplemented, the
"Indenture"), between the Company and The Bank of New York, as trustee
("Trustee").
The Agency Agreement provides that Notes may also be purchased by
an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under
the administrative procedures set forth below shall be performed by such
Agent acting solely as principal, unless otherwise agreed to between the
Company and such Agent acting as principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to The Bank of New York ("BONY"), as agent for
The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
Holder thereof or a Person designated by such Holder (a "Certificated Note").
An owner of a Book-Entry Note will not be entitled to receive a certificate
representing such Note.
The procedures to be followed during, and the specific terms of,
the solicitation of orders by the Agents and the sale as a result thereof by
the Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury Department.
The Company will advise the Agents and the Trustee in writing of those
persons handling administrative responsibilities with whom the Agents and the
Trustee are to communicate regarding orders to purchase Notes and the details
of their delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in
accordance with changes in DTC's operating requirements, 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 and the Notes shall be used herein as therein defined. Notes
<PAGE>
for which interest is calculated on the basis of a fixed interest rate, which
may be zero, are referred to herein as "Fixed Rate Notes". Notes for which
interest is calculated on the basis of a floating interest rate are referred
to herein as "Floating Rate Notes". To the extent the procedures set forth
below conflict with the provisions of the Notes, the Indenture, DTC's
operating requirements or the Agency Agreement, the relevant provisions of
the Notes, the Indenture, DTC's operating requirements and the Agency
Agreement shall control.
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, BONY will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and BONY to DTC dated as of the date hereof and a
Medium-Term Note Certificate Agreement between BONY and DTC 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 $200,000,000 principal amount of all such
Book-Entry Notes that have the same original
issue date, original issue discount provisions,
if any, Interest Payment Dates, Regular Record
Dates, Interest Payment Period, redemption or
repayment provisions, if any, Maturity Date,
and, in the case of Fixed Rate Notes, interest
rate, or, in the case of Floating Rate Notes,
Initial Interest Rate, Base Rate, Index
Maturity, Interest Reset Period, Interest Reset
Dates, Spread and/or Spread Multiplier, if any,
minimum interest rate, if any, and maximum
interest rate, if any, and any other terms of
such Note not inconsistent with the provisions
of the Indenture (collectively, the "Terms").
Each Global Security will be dated and issued
as of the date of its authentication by the
Trustee. Each Global Security will bear an
original issue date, which will be (i) with
respect to an original Global Security (or any
portion thereof), the original issue date
specified in such Global Security and (ii)
following a consolidation of Global Securities,
with respect to the Global Security resulting
from such consolidation, the most recent
Interest Payment Date to which interest has
been paid or duly provided for on the
predecessor Global Securities, regardless of
<PAGE>
the date of authentication of such resulting
Global Security. No Global Security will
represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of
a series of CUSIP numbers, which series
consists of approximately 900 CUSIP numbers and
relates to Global Securities representing
Book-Entry Notes and book-entry medium-term
notes issued by the Company with other series
designations. BONY, the Company and DTC have
obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers.
The Company will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global
Securities. BONY will notify the Company at
any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global
Securities, and, if it deems necessary, the
Company will reserve additional CUSIP numbers
for assignment to Global Securities. Upon
obtaining such additional CUSIP numbers, the
Company shall deliver a list of such additional
CUSIP numbers to BONY and DTC.
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global
Security will be registered in the name of CEDE
& CO., as nominee for DTC, on the securities
register for the Notes 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 Book-Entry Note in the account of
such Participants. The ownership interest of
such beneficial owner (or such participant) in
such Book-Entry Note will be recorded through
the records of such Participants or through the
separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and,
<PAGE>
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 Note.
Exchanges: BONY may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of
consolidation (a copy of which shall be
attached to the resulting Global Security
described below) specifying (i) the CUSIP
numbers of two or more outstanding Global
Securities that represent (A) Fixed Rate
Book-Entry Notes having the same Terms and for
which interest has been paid to the same date
or (B) Floating Rate 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,
obtained from the Company, to be assigned to
such replacement Global Security. Upon receipt
of such a notice, DTC will send to its
Participants (including BONY) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, BONY will deliver to
the CUSIP Service Bureau a written notice
setting forth such exchange date and such 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, BONY
will exchange such Global Securities for a
single Global Security bearing the new CUSIP
number and the CUSIP numbers of the exchanged
Global Securities will, in accordance with
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $200,000,000
in aggregate principal amount, one Global
Security will be authenticated and issued to
represent each $200,000,000 of principal amount
of the exchanged Global Securities and an
additional Global Security will be
authenticated and issued to represent any
remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities: Unless otherwise specified, each Book-Entry
Note will mature on a date not less than nine
months after the Original Issue Date (as
defined below) for such Note. A Floating Rate
<PAGE>
Book-Entry Note will mature only on an Interest
Payment Date for such Note.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any amount in excess
thereof that is an integral multiple of $1,000.
Global Securities will be denominated in
principal amounts not in excess of
$200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess
of $200,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
authenticated and issued to represent each
$200,000,000 principal amount of such
Book-Entry Note or Notes and an additional
Global Security will be authenticated and
issued to represent any remaining principal
amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities
representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry
Note will accrue from the Original Issue Date
for the first interest period or the last date
to which interest has been paid, if any, for
each subsequent interest period, on the Global
Security representing such Book-Entry Note, and
will be calculated and paid in the manner
described in such Book-Entry Note and in the
Prospectus (as defined in the Agency
Agreement), as supplemented by the applicable
Pricing Supplement. Unless otherwise specified
therein, each payment of interest on a
Book-Entry Note will include interest accrued
to but excluding the Interest Payment Date or
to but excluding Maturity (other than a
Maturity of a Fixed Rate Book-Entry Note
occurring on the 31st day of a month, in which
case such payment of interest will include
interest accrued to but excluding the 30th day
of such month). Interest payable at the
Maturity 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 (daily or
weekly) bond report published by Standard &
Poor's Corporation.
Regular Record Dates. The Regular Record Date
with respect to any Interest Payment Date shall
<PAGE>
be the date fifteen calendar days immediately
preceding such Interest Payment Date, whether
or not a Business Date.
Interest Payment Dates on Fixed Rate Book-Entry
Notes. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes will be
made semiannually on May 15 and November 15 of
each year and at Maturity; provided, however,
that if an Interest Payment 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;
provided further, that in the case of a Fixed
Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Interest payments will be
made on Floating Rate Book-Entry Notes monthly,
quarterly, semi-annually or annually. Unless
otherwise agreed upon, interest will be
payable, in the case of Floating Rate
Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each
month; with a quarterly Interest Payment
Period, on the third Wednesday of March, June,
September and December of each year; with a
semi-annual Interest Payment Period on the
third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and
with an annual Interest Payment Period, on the
third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; provided,
however, that if an Interest Payment Date for a
Floating Rate Book-Entry Note would otherwise
be a day that is not a Business Day with
respect to such Floating Rate Book-Entry Note,
such Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except in the
case of a Floating Rate Book-Entry Note for
which the Base Rate is LIBOR, if such Business
Day is in the next succeeding calendar month,
such Interest Payment Date will be the
immediately preceding Business Day; and
provided further, that in the case of a
Floating Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment
Date, the first interest payment will be made
<PAGE>
on the Interest Payment Date following the next
succeeding Regular Record Date.
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, BONY will
deliver to the Company and DTC a written list
of Regular Record Dates and Interest Payment
Dates that will occur with respect to
Book-Entry Notes during the six-month period
beginning on such first Business Day. Promptly
after each Interest Determination Date for
Floating Rate Book-Entry Notes, BONY, as
Calculation Agent, will notify Standard &
Poor's Corporation of the interest rates
determined on such Interest Determination Date.
Calculation of Interest: Fixed Rate Book-Entry Notes. 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. Interest rates
on Floating Rate Book-Entry Notes will be
determined as set forth in the form of Notes.
Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed
and a year of 360 days, except that in the case
of a Floating Rate Book-Entry Note for which
the Base Rate is Treasury Rate or CMT Rate,
interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal and Payment of Interest Only. Promptly after each
Interest: Regular Record Date, BONY will deliver to the
Company and DTC a written notice setting forth,
by CUSIP number, the amount of interest to be
paid on each Global Security on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with Maturity) and the
total of such amounts. DTC will confirm the
amount payable on each Global Security on such
Interest Payment Date by reference to the
appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation.
The Company will pay to BONY, in its capacity
as paying agent, the total amount of interest
due on such Interest Payment Date (other than
at Maturity), and BONY will pay such amount to
DTC, at the times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, BONY, in its
capacity as agent for DTC will deliver to the
<PAGE>
Company, DTC and the Trustee a written list of
principal and interest to be paid on each
Global Security maturing (at Maturity or
Redemption Date or otherwise) in the following
month. BONY, in its capacity as agent for DTC,
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 of such Global Security. On or before
Maturity, the Company will pay to BONY, in its
capacity as agent for DTC, as paying agent, the
principal amount of such Global Security,
together with interest, if any and premium, if
any due at such Maturity. BONY, in its
capacity as agent for DTC will pay such amount
to DTC at the times and in the manner set forth
below under "Manner of Payment". If any
Maturity 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 and no interest
shall accrue on such payment for the period
from and after such Maturity. Promptly after
payment to DTC of the principal and interest
due at Maturity of such Global Security, the
Trustee will cancel such Global Security in
accordance with the Indenture and so advise the
Company. On the first Business Day of each
month, BONY, in its capacity as agent for DTC
will deliver to the Trustee a written statement
indicating the total principal amount of
outstanding Global Securities as of the
immediately preceding Business Day. If the
Maturity of a 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 Maturity.
Manner of Payment. The total amount of any
principal and interest due on Global Securities
on any Interest Payment Date or at Maturity
shall be paid by the Company to BONY in
immediately available funds no later than 10:00
A.M. (New York City time) on such date. The
Company will make such payment on such Global
Securities by instructing BONY to withdraw
funds from an account maintained by the Company
at BONY or by wire transfer to BONY. The
Company will confirm any such instructions in
writing to BONY. Prior to 11:30 A.M. (New York
City time) on the date of Maturity or as soon
as possible thereafter, BONY will pay by
separate wire transfer (using Fedwire message
entry instructions in a form previously
specified by DTC) to an account at the Federal
<PAGE>
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 a Global Security on
such date. On each Interest Payment Date
(other than at Maturity), interest payments
shall be made to DTC, in funds available for
immediate use by DTC, in accordance with
existing arrangements between BONY and DTC. 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. None of
the Company (as issuer or as paying agent), the
Trustee or BONY, in its capacity as agent for
DTC shall have any direct responsibility or
liability for the payment by DTC to such
Participants of the principal of and interest
on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Note.
Procedures upon Company's Company Notice to Trustee Regarding Exercise of
Exercise of Optional Optional Redemption. Not more than 60 nor less
Redemption: than 30 calendar days prior to the date on
which it intends to redeem a Book-Entry Note,
the Company will notify the Trustee that it is
exercising such option with respect to such
Book-Entry Note on such date.
Trustee Notice to DTC Regarding Company's
Exercise of Optional Redemption. After receipt
of notice that the Company is exercising its
option to redeem a Book-Entry Note, the Trustee
will, at least 20 calendar days before the
redemption date for such Book-Entry Note, hand
deliver to DTC a notice identifying such
Book-Entry Note by CUSIP number and informing
DTC of the Company's exercise of such option
with respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with
the Trustee an amount of money sufficient to
pay the redemption price, plus interest accrued
to such redemption date, for all the Book-Entry
<PAGE>
Notes or portions thereof which are to be
repaid on such redemption date. The Trustee
will use such money to repay such Book-Entry
Notes pursuant to the terms set forth in such
Notes.
Payments of Principal and Trustee Notice to Company of Option to be
Interest upon Exercise of Repaid. Upon receipt of notice of exercise of
Optional Repayment: the option for repayment and the Global
Securities representing the Book-Entry Notes so
to be repaid as set forth in such or Notes, the
Trustee shall give notice to the Company not
less than 20 calendar days prior to each
Optional Repayment Date of such Optional
Repayment Date and of the principal amount of
Book-Entry Notes to be repaid on such Optional
Repayment Date.
Deposit of Repayment Price. On or prior to any
Optional Repayment Date, the Company shall
deposit with such Trustee an amount of money
sufficient to pay the optional repayment price,
and accrued interest thereon to such date, of
all the Book-Entry Notes or portions thereof
which are to be repaid on such date. Such
Trustee will use such money to repay such
Book-Entry Notes pursuant to the terms set
forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from
Setting and Posting: time to time the aggregate principal amount of,
the issuance price of, and the interest rates
to be borne by, Book-Entry Notes that may be
sold as a result of the solicitation of orders
by the Agents. If the Company decides to set
prices of, and rates borne by, any Book-Entry
Notes in respect of which the Agents are to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or
if the Company decides to change prices or
rates previously posted by it, it will promptly
advise the Agents of the prices and rates to be
posted.
Acceptance and Rejection Unless otherwise instructed by the Company,
of Orders: each Agent will advise the Company promptly by
telephone of all orders to purchase Book-Entry
Notes received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless
otherwise agreed by the Company and the Agents,
the Company has the right to accept orders to
purchase Book-Entry Notes and may reject any
such orders in whole or in part.
Preparation of Pricing If any order to purchase a Book-Entry Note is
Supplement: accepted by or on behalf of the Company, the
<PAGE>
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the applicable
interest rates and other terms of such
Book-Entry Note and will arrange to have a copy
thereof filed with the Commission in accordance
with the applicable paragraph of Rule 424(b)
under the Act and will supply at least ten
copies thereof (and additional copies if
requested) to the Agent which presented the
order (the "Presenting Agent") at the following
address: if to Merrill Lynch & Co., to:
Tritech Services, 44B Colonial Drive,
Piscataway, New Jersey 08854, Attention:
Prospectus Operations/Nachman Kimerling, (732)
885-2768, telecopier: (732) 885-2774/5/6;
if to Salomon Brothers Inc: 8800 Hidden
River Parkway, Tampa, Florida 33637,
Attention: Enrique Castro, (813) 558-7165,
telecopier: (813) 558-4128; if to Chase
Securities Inc.: 270 Park Avenue, 8th Floor,
New York, New York, 1001, Attn: Medium-Term Note
Department, (212) 834-4421, telecopier:
(212) 834-6081; and if to J.P. Morgan Securities
Inc.: [Name] [Address] [Phone] [Fax]. The
Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements (other
than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its sole
Solicitation; Amendment discretion, to instruct the Agents to suspend
or Supplement: at any time, for any period of time or
permanently, the solicitation of orders to
purchase Book-Entry Notes. Upon receipt of
such instructions, the Agents will forthwith
suspend solicitation until such time as the
Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there shall
be any orders outstanding for settlement, the
Company will promptly advise the Agents, the
Trustee and BONY, in its capacity as agent for
DTC whether such orders may be settled and
whether copies of the Prospectus as in effect
at the time of the suspension, together with
the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not
<PAGE>
be settled or that copies of such Prospectus
may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement (as defined in the
Agency Agreement) or the Prospectus, it will
promptly advise the Agents and furnish the
Agents with the proposed amendment or
supplement and with such certificates and
opinions as are required, all to the extent
required by and in accordance with the terms of
the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company
may file with the Commission any such
supplement to the Prospectus relating to the
Notes. The Company will provide the Agents,
the Trustee and BONY, in its capacity as agent
for DTC with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Procedures For Rate When the Company has determined to change the
Changes: interest rates of Book-Entry Notes being
offered, it will promptly advise the Agents and
the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the
Company with recommendations as to the changed
interest rates. At such time as the Company
has advised the Agents of the new interest
rates, the Agents may resume solicitation of
orders. Until such time only "indications of
interest" may be recorded.
Delivery of Prospectus: A copy of the Prospectus, a Pricing Supplement
and any other supplements or amendments to the
Prospectus relating to a Book-Entry Note must
accompany or precede the earliest of any
written offer of such Book-Entry Note,
confirmation of the purchase of such Book-Entry
Note and payment for such Book-Entry Note by
its purchaser. If notice of a change in the
terms of the Book-Entry Notes is received by
the Agents between the time an order for a
Book-Entry Note is placed and the time written
confirmation thereof is sent by the Presenting
Agent to a customer or his agent, such
confirmation shall be accompanied by a
Prospectus and Pricing Supplement and any other
supplements or amendments to the prospectus
setting forth the terms in effect when the
order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above,
the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by it.
The Company will make such delivery if such
<PAGE>
Book-Entry Note is sold directly by the Company
to a purchaser (other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
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 Book-Entry
Note shall constitute "settlement" with respect
to such Book-Entry Note. All orders accepted
by the Company will be settled on the third
Business Day following the date of sale of such
Book-Entry Note 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 following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate
Book-Entry Note, the interest rate
or, in the case of a Floating Rate
Book-Entry Note, the Base Rate,
Initial Interest Rate (if known at
such time), Index Maturity, Interest
Reset Period, Interest Reset Dates,
Spread and/or Spread Multiplier (if
any), Minimum Interest Rate (if any)
and Maximum Interest Rate (if any).
4. Interest Payment Dates and the
Interest Payment Period.
5. Redemption or repayment provisions,
if any.
6. Settlement date.
7. Price.
<PAGE>
8. Presenting Agent's commission,
determined as provided in Section 2
of the Agency Agreement.
9. Whether such Book-Entry Note is
issued at an original issue discount
and, if so, the total amount of OID,
the yield to maturity and the initial
accrual period OID.
B. The Company will assign a CUSIP number to
the Global Security representing such
Book-Entry Note and then advise BONY and
the Presenting Agent by telephone
(confirmed in writing at any time on the
same date) or electronic transmission of
the information set forth in Settlement
Procedure "A" above, such CUSIP number and
the name of the Presenting Agent. The
Company will also notify the Presenting
Agent by telephone of such CUSIP number as
soon as practicable. Each such
communication by the Company shall
constitute a representation and warranty
by the Company to BONY, in its capacity as
agent of DTC, the Trustee and the
Presenting Agent that (i) such Note is
then, and at the time of issuance and sale
thereof will be, duly authorized for
issuance and sale by the Company, (ii)
such Note, and the Global Security
representing such Note, will conform with
the terms of the Indenture for such Note,
and (iii) upon authentication and delivery
of such Global Security, the aggregate
initial offering price of all Notes issued
under the Indenture will not exceed
$750,000,000, or such greater amount of
Notes are issued at an original issue
discount as shall result in aggregate
gross proceeds to the Company of
$750,000,000 (except for Book-Entry Notes
represented by Global Securities
authenticated and delivered in exchange
for or in lieu of Global Securities
pursuant to the Indenture and except for
Certificated Notes authenticated and
delivered upon registration of transfer
of, in exchange for, or in lieu of
Certificated Notes pursuant to the
Indenture).
C. BONY, in its capacity as agent for DTC
will enter a pending deposit message
through DTC's Participant Terminal System
providing the following settlement
information to DTC (which shall route such
<PAGE>
information to Standard & Poor's
Corporation), the Presenting Agent and,
upon request, the Trustee:
1. The information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for
such Book-Entry Note, number of days
by which such date succeeds the
related Regular Record Date and
amount of interest payable on such
Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
D. To the extent the Company has not already
done so, the Company will deliver to the
Trustee a Global Security in a form that
has been approved by the Company, the
Agents and the Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set
forth thereon, and authenticate the Global
Security representing such Book-Entry
Note.
F. DTC will credit such Book-Entry Note to
BONY's participant account at DTC.
G. BONY will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such
Book-Entry Note to BONY's participant
account and credit such Book-Entry Note to
the Presenting Agent's participant account
and (ii) debit the Presenting Agent's
settlement account and credit BONY's
settlement account for an amount equal to
the price of such Book-Entry Note less the
Presenting Agent's commission. The entry
of such a deliver order shall constitute a
representation and warranty by BONY to DTC
that (i) the Global Security representing
<PAGE>
such Book-Entry Note has been issued and
authenticated and (ii) BONY is holding
such Global Security pursuant to the
Medium-Term Note Certificate Agreement
between BONY and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Book-Entry Note to the
Presenting Agent's participant account and
credit such Book-Entry Note to the
participant accounts of the Participants
with respect to such Book-Entry Note and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of the Presenting Agent
for an amount equal to the price of such
Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures
in effect on the settlement date.
J. BONY will, upon receipt of funds from the
Presenting Agent in accordance with
Settlement Procedure "G" and as directed
by the Company, credit to an account of
the Company maintained at BONY or wire
transfer to an account of the Company
maintained at another bank specified in
such direction by the Company, funds
available for immediate use in the amount
transferred to BONY in accordance with
Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such
Book-Entry Note a confirmation order or
orders through DTC's institutional
delivery system or by mailing a written
confirmation to such purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by any
Timetable: Agent and accepted by the Company for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through
"K" set forth above shall be completed as soon
as possible but not later than the respective
times (New York City time) set forth below:
<PAGE>
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 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 3:45 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 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. and 12:00 Noon on the first Business Day
after the sale date and no later than 2:00 P.M.
on the Business Day before the settlement date,
respectively. If the initial interest rate for
a Floating Rate Book-Entry Note has not been
determined at the time that Settlement
Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M.,
respectively, on the Business Day before the
settlement date. Settlement Procedure "I" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in
the other events specified in SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, BONY will deliver to
DTC, through DTC's Participant Terminal System,
a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement
date.
Failure to Settle: If BONY fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "G", BONY may deliver to
DTC, through DTC's Participant Terminal System,
as soon as practicable, a withdrawal message
instructing DTC to debit such Book-Entry Note
to BONY's participant account. DTC will
process the withdrawal message, provided that
BONY's participant account contains a principal
amount of the Global Security representing such
Book-Entry Note that is at least equal to the
principal amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a
<PAGE>
Global Security, the Trustee will cancel such
Global Security in accordance with the
Indenture and so advise the Company and BONY,
and BONY will make appropriate entries in its
records. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal
message is processed with respect to one or
more, but not all, of the Book-Entry Notes
represented by a Global Security, BONY will
exchange such Book-Entry Note for two Global
Securities, one of which shall represent such
Book-Entry Notes and shall be cancelled
immediately after issuance and the other of
which shall represent the other Book-Entry
Notes previously represented by the surrendered
Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such 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 Presenting Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and "G",
respectively. Thereafter, BONY will deliver
the withdrawal message and take the related
actions described in the preceding paragraph.
If such failure shall have occurred for any
reason other than a default by the Presenting
Agent in the performance of its obligations
hereunder and under the Agency Agreement, then
the Company will reimburse the Presenting Agent
or BONY, as applicable, on an equitable basis
for the loss of the use of the funds during the
period when they were credited to the account
of the Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note,
DTC may take any actions in accordance with its
SDFS operating procedures then in effect. In
the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes to have been represented by a Global
Security, BONY will provide, in accordance with
Settlement Procedure "E", for the
authentication and issuance of a Global
Security representing the other Book-Entry
Notes to have been represented by such Global
Security and will make appropriate entries in
its records.
<PAGE>
Trustee and BONY, in its Nothing herein shall be deemed to
capacity as agent of DTC require the Trustee or BONY to
Not to Risk Funds: risk or expend its own funds in connection with
any payment to the Company, DTC, the Agents or
the purchaser, it being understood by all
parties that payments made by the Trustee or
BONY to the Company, DTC, the Agents or the
purchaser shall be made only to the extent that
funds are provided to the Trustee or BONY in
its capacity as agent of DTC for such purpose.
Authenticity of The Company will cause the Trustee to furnish
Signatures: BONY and the Agents from time to time with the
specimen signatures of each of the Trustee's
officers, employees or agents who has been
authorized by the Trustee to authenticate
Book-Entry Notes, but no Agent will have any
obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of
the Company or the Trustee on any Book-Entry
Note.
Payment of Expenses: Each Agent shall forward to the Company, on a
quarterly basis, a statement of the
out-of-pocket expenses incurred by such Agent
during that quarter that are reimbursable to it
pursuant to the terms of the Agency Agreement.
The Company will remit payment to the Agents
currently on a quarterly basis.
Advertising Costs: The Company will determine with the Agents the
amount of advertising that may be appropriate
in soliciting offers to purchase the Book-Entry
Notes. Advertising expenses will be paid by
the Company.
Periodic Statements from Periodically, BONY will send to the Company a
BONY: statement setting forth the principal amount of
Book-Entry Notes Outstanding as of that date
and setting forth a brief description of any
sales of Book-Entry Notes which the Company has
advised BONY but which have not yet been
settled.
<PAGE>
PART II
Administrative Procedures for Certificated Notes
BONY will serve as registrar and transfer agent in
connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by the
Trustee. Each Certificated Note will bear an
Original Issue Date, which will be (i) with
respect to an original Certificated Note (or
any portion thereof), its original issuance
date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or
in lieu of a destroyed, lost or stolen
Certificated Note, the Original Issue 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 for A Certificated Note may be presented for
Exchanges: transfer or exchange at the principal corporate
trust office in the City of New York of BONY.
Certificated Notes will be exchangeable for
other Certificated Notes having identical terms
but different authorized denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date
not less than nine months after the settlement
date for such Note. A Floating Rate
Certificated Note will mature only on an
Interest Payment Date for such Note.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum
of $1,000 or any amount in excess thereof that
is an integral multiple of $1,000.
Interest: General. Interest, if any, on each
Certificated Note will accrue from the original
issue date for the first interest period or the
last date to which interest has been paid, if
any, for each subsequent interest period, and
will be calculated and paid in the manner
described in such Note and in the Prospectus,
as supplemented by the applicable Pricing
Supplement. Unless otherwise specified
therein, each payment of interest on a
Certificated Note will include interest accrued
to but excluding the Interest Payment Date or
<PAGE>
to but excluding Maturity (other than a
Maturity of a Fixed Rate Certificated Note
occurring on the 31st day of a month, in which
case such payment of interest will include
interest accrued to but excluding the 30th day
of such month).
Regular Record Dates. The Regular Record Dates
with respect to any Interest Payment Date shall
be the date fifteen calendar days immediately
preceding such Interest Payment Date, whether
or not a Business Day.
Fixed Rate Certificated Notes. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on Fixed
Rate Certificated Notes will be made
semiannually on May 15 and November 15 of each
year and at Maturity; provided, however, that
if any Interest Payment 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;
provided further, that in the case of a Fixed
Rate Certificated Note issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Floating Rate Certificated Notes. Interest
payments will be made on Floating Rate
Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be
payable, in the case of Floating Rate
Certificated Notes with a monthly Interest
Payment Period, on the third Wednesday of each
month; with a quarterly interest Payment
Period, on the third Wednesday of March, June,
September and December of each year; with a
semi-annual Interest Payment Period, on the
third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and
with an annual Interest Payment Period, on the
third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; provided,
however, that if an Interest Payment Date for a
Floating Rate Certificated Note would otherwise
be a day that is not a Business Day with
respect to such Floating Rate Certificated
Note, such Interest Payment Date will be the
next succeeding Business Day with respect to
such Floating Rate Certificated Note, except in
the case of a Floating Rate Certificated Note
for which the Base Rate is LIBOR, if such
<PAGE>
Business Day is in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding London Business Day; and
provided further, that in the case of a
Floating Rate Certificated Note issued between
a Regular Record Date and an Interest Payment
Date, the first interest payment will be made
on the Interest Payment Date following the next
succeeding Regular Record Date.
Calculation of Interest: Fixed Rate Certificated Note. 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. Interest
rates on Floating Rate Certificated Notes will
be determined as set forth in the form of
Notes. Interest on Floating Rate Certificated
Notes, except as otherwise set forth therein,
will be calculated on the basis of actual days
elapsed and a year of 360 days, except that in
the case of a Floating Rate Certificated Note
for which the Base Rate is Treasury Rate or CMT
Rate, interest will be calculated on the basis
of the actual number of days in the year.
Payments of Principal and Interest, if any, on each Certificated Note
Interest: will be calculated and paid in the manner
described in such Note and in the Prospectus,
as supplemented by the applicable Pricing
Supplement. Unless otherwise provided in the
Indenture or the Certificated Note, the first
payment of interest on any Certificated Note
originally issued between a Record Date and an
Interest Payment Date will be made on the next
succeeding Interest Payment Date. Interest
payable at the Maturity of a Certificated Note
will be payable to the Person to whom the
principal of such Note is payable. Unless
other arrangements are made, all interest
payments (excluding interest payments made on
the Maturity Date) will be made by check mailed
to the person entitled thereto as provided
above; provided, however, that the holder of
$10,000,000 or more of Certificated Notes with
the same tenor and terms will be entitled to
receive payment by wire transfer in U.S.
dollars.
Within 10 calendar days following each Record
Date, the Trustee will inform the Company of
the total amount of the interest payments to be
made by the Company on the next succeeding
Interest Payment Date. The Trustee will
provide monthly to the Company a list of the
<PAGE>
principal and interest to be paid on
Certificated Notes maturing in the next
succeeding month.
BONY will be responsible for withholding taxes
on interest paid on Certificated Notes as
required by applicable law.
If the Maturity 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 Maturity.
Procedures upon Company's Company Notice to Trustee Regarding Exercise of
Exercise of Optional Optional Redemption. Not more than 60 nor less
Redemption: than 30 calendar days prior to the date on
which it intends to redeem a Certificated Note,
the Company will notify the Trustee that it is
exercising such option with respect to such
Certificated Note on such date.
Trustee Notice to Holders Regarding Company's
Exercise of Optional Redemption. After receipt
of notice that the Company is exercising its
option to redeem a Certificated Note, the
Trustee will, at least 20 calendar days before
the redemption date for such Certificated Note,
mail a notice, first class, postage prepaid, to
the Holder of such Certificated Note informing
such Holder of the Company's exercise of such
option with respect to such Certificated Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with
such Trustee an amount of money sufficient to
pay the redemption price, plus interest accrued
to such redemption date, for all the
Certificated Notes or portions thereof and
which are to be repaid on such redemption date.
Such Trustee will use such money to repay such
Certificated Notes pursuant to the terms set
forth in such Notes.
Payments of Principal and Trustee Notice to Company of Option to be
Interest Upon Exercise of Repaid. Upon receipt of notice of exercise of
Optional Repayment: the option for repayment and the Certificated
Notes so to be repaid, the Trustee shall give
notice to the Company not less than 20 calendar
days prior to each Optional Repayment Date of
such Optional Repayment Date and of the
principal amount of Certificated Notes to be
repaid on such Optional Repayment Date.
Deposit of Repayment Price. On or prior to any
Optional Repayment Date, the Company shall
deposit with the Trustee an amount of money
<PAGE>
sufficient to pay the optional repayment price,
and accrued interest thereon to such date, of
all the Certificated Notes or portions thereof
which are to be repaid on such date. The
Trustee will use such money to repay such
Certificated Notes pursuant to the terms set
forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from
Setting and Posting: time to time the aggregate principal amount of,
the issuance price of, and the interest rates
to be borne by, Notes that may be sold as a
result of the solicitation of orders by the
Agents. If the Company decides to set prices
of, and rates borne by, any Notes in respect of
which the Agents are to solicit orders (the
setting of such prices and rates to be referred
to herein as "posting") or if the Company
decides to change prices or rates previously
posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
Acceptance and Rejection Unless otherwise instructed by the Company,
of Orders: each Agent will advise the Company promptly by
telephone of all orders to purchase
Certificated Notes received by such Agent,
other than those rejected by it in whole or in
part in the reasonable exercise of its
discretion. Unless otherwise agreed by the
Company and the Agents, the Company has the
sole right to accept orders to purchase
Certificated Notes and may reject any such
orders in whole or in part. Before accepting
any order to purchase a Certificated Note to be
settled in less than three Business Days, the
Company shall verify that the Trustee will have
adequate time to prepare and authenticate such
Note.
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 interest
rates and other terms of such Certified Note
and will arrange to have a copy thereof filed
with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the
Act and will supply at least ten copies thereof
(and additional copies if requested) to the
Agent which presented the order (the
"Presenting Agent"). The Presenting Agent will
cause a Prospectus and Pricing Supplement to be
delivered to the purchaser of such Certificated
Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
<PAGE>
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements (other
than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its sole
Solicitation; Amendment discretion, to instruct the Agents to suspend
or Supplement: at any time for any period of time or
permanently, the solicitation of orders to
purchase Certificated Notes. Upon receipt of
such instructions, the Agents will forthwith
suspend solicitation until such time as the
Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there shall
be any orders outstanding for settlement, the
Company will promptly advise the Agents, the
Trustee and BONY, whether such orders may be
settled and whether copies of the Prospectus as
in effect at the time of the suspension,
together with the appropriate Pricing
Supplement, may be delivered in connection with
the settlement of such orders. The Company
will have the sole responsibility for such
decision and for any arrangements that may be
made in the event that the Company determines
that such orders may not be settled or that
copies of such Prospectus may not be so
delivered.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus,
it will promptly advise the Agents and furnish
the Agents with the proposed amendment or
supplement and with such certificates and
opinions as are required, all to the extent
required by and in accordance with the terms of
the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company
may file with the Commission any supplement to
the Prospectus relating to the Notes. The
Company will provide the Agents, the Trustee
and BONY with copies of any such supplement,
and confirm to the Agents that such supplement
has been filed with the Commission pursuant to
the applicable paragraph of Rule 424(b).
Procedure for Rate When the Company has determined to change the
Changes: interest rates of Certificated Notes being
offered, it will promptly advise the Agents and
the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the
Company with recommendations as to the changed
interest rates. At such time as the Company
has advised the Agents of the new interest
<PAGE>
rates, the Agents may resume solicitation of
orders. Until such time only "indications of
interest" may be recorded.
Delivery of Prospectus: A copy of the Prospectus and a Pricing
Supplement relating to a Certificated Note must
accompany or precede the earliest of any
written offer of such Certificated Note,
confirmation of the purchase of such
Certificated Note and payment for such
Certificated Note by its purchaser. If notice
of a change in the terms of the Certificated
Notes is received by the Agents between the
time an order for a Certificated Note is placed
and the time written confirmation thereof is
sent by the Presenting Agent to a customer or
his agent, such confirmation shall be
accompanied by a Prospectus and Pricing
Supplement setting forth the terms in effect
when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement" above, the Presenting Agent will
deliver a Prospectus and Pricing Supplement as
herein described with respect to each
Certificated Note sold by it. The Company will
make such delivery if such Certificated Note is
sold directly by the Company to a purchaser
(other than any Agent).
Confirmation: For each order to purchase a Certificated Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's
delivery of such Certificated Note against
receipt of immediately available funds shall,
with respect to such Certificated Note,
constitute "settlement". All orders accepted
by the Company will be settled on the third
Business Day following the date of sale
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 following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company through
any Agent, as agent, shall be as follows:
<PAGE>
A. The Presenting Agent will advise the
Company by telephone of the following
settlement information, in time for the
Trustee to prepare and authenticate the
required Note:
1. Name in which such Certificated 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
or, in the case of a Floating Rate
Certificated Note, the Initial
Interest Rate (if known at such
time), Base Rate, Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread and/or Spread
Multiplier (if any), Minimum Interest
Rate (if any) and Maximum Interest
Rate (if any).
7. Interest Payment Dates and the
Interest Payment Period.
8. Redemption or repayment provisions,
if any.
9. Settlement date.
10. Price (including currency).
11. Presenting Agent's commission,
determined as provided in Section 2
of the Agency Agreement.
12. Whether such Certificated Note is
issued at an original issue discount,
and, if so, the total amount of OID,
the yield to maturity and the initial
accrual period OID.
B. The Company will advise BONY by telephone
(confirmed in writing at any time on the
sale date) or electronic transmission of
the information set forth in Settlement
<PAGE>
Procedure "A" above and the name of the
Presenting Agent.
C. The Company will deliver to BONY a
preprinted four-ply packet for such
Certificated Note, which packet will
contain the following documents in forms
that have been approved by Company, the
Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such
Certificated Note and will authenticate
such Certificated Note and deliver it
(with the confirmation) and Stubs One and
Two to the Presenting Agent, all in
accordance with the written directions (or
oral instructions confirmed in writing on
the next Business Day) of the Company, and
the Presenting Agent will acknowledge
receipt of the Note by stamping or
otherwise marking Stub One and returning
it to the Trustee. Such delivery will be
made only against such acknowledgment of
receipt. In the event that the
instructions given by the Presenting Agent
for payment to the account of the Company
are revoked, the Company will as promptly
as possible wire transfer to the account
of the Presenting Agent an amount of
immediately available funds equal to the
amount of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation)
to the customer against payment in
immediately payable funds. The Presenting
Agent will obtain the acknowledgement of
receipt of such Certificated Note by
retaining Stub Two.
F. BONY will send Stub Three to the Company
by first-class mail.
Settlement Procedures For orders of Certificated Notes solicited by
Timetable: any Agent, as agent, and accepted by the
Company, Settlement Procedures "A" through "F"
set forth above shall be completed on or before
<PAGE>
the respective times (New York City time) set
forth below:
Settlement
Procedure Time
A 3:45 P.M. on the day before
settlement
B-C 3:00 P.M. on the day before
settlement
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
Presenting Agent will notify the Company and
BONY by telephone and return such Certificated
Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Presenting Agent
an amount equal to the amount previously
credited to the account of Company in respect
of such Certificated 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 the Presenting Agent in
the performance of its obligations hereunder
and under the Agency Agreement, then the
Company will reimburse the Presenting Agent or
BONY, as appropriate, on an equitable basis for
its loss of the use of the funds during the
period when they were credited to the account
of the Company. Immediately upon receipt of
the Certificated Note in respect of which such
failure occurred, the Trustee will cancel such
Certificated Note in accordance with the
Indenture and so advise the Company and BONY,
and BONY will make appropriate entries in its
records.
Trustee and BONY Not to Nothing herein shall be deemed to
Risk Funds: require the Trustee or BONY to
risk or expend its own funds in connection with
any payment to the Company, the Agents or the
purchaser, it being understood by all parties
that payments made by the Trustee or BONY to
the Company, the Agents or the purchaser shall
be made only to the extent that funds are
provided to the Trustee or BONY for such
purpose.
Authenticity of The Company will cause the Trustee to
Signatures: furnish the Agents from time to time with the
specimen signatures of each of the Trustee's
<PAGE>
officers, employees or agents who has been
authorized by the Trustee to authenticate
Certificated Notes, but neither BONY nor any
Agent will have any obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee
on any Certificated Note.
Payment of Expenses: Each Agent shall forward to the Company, on a
monthly basis, a statement of the out-of-pocket
expenses incurred by such Agent during that
month that are reimbursable to it pursuant to
the terms of the Agency Agreement. The Company
will remit payment to the Agents currently on a
quarterly basis.
Advertising Costs: The Company will determine with the Agents the
amount of advertising that may be appropriate
in soliciting orders to purchase the
Certificated Notes. Advertising expenses will
be paid by the Company.
Periodic Statements from Periodically, BONY will send to
BONY: the Company a statement setting forth the
principal amount of Certificated Notes
Outstanding as of that date and setting forth a
brief description of any sales of Certificated
Notes which the Company has advised BONY but
which have not yet been settled.
<PAGE>
EXHIBIT B - AGENT DISCOUNT
INGERSOLL-RAND COMPANY
Medium-Term Notes, Series B
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following
percentage of the aggregate principal amount of Notes:
Term Commission Rate
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to 30 years .750%
More than 30 years to be negotiated at time of
sale
<PAGE>
EXHIBIT C- FORM OF TERMS AGREEMENT
Ingersoll-Rand Company
Medium-Term Notes
Series B,
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
_______ __, 199_
Ingersoll-Rand Company
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Attention: [Name]
[Title]
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated November __, 1997 among Salomon
Brothers Inc, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities Inc. and J.P. Morgan Securities Inc. and Ingersoll-Rand Company
(the "Company"), the undersigned agrees to purchase the Notes described below
of the Company.
Aggregate Principal Amount: $___________
Purchase Price: __% of Principal Amount
Discount or Commission: __% of Principal Amount [plus
accrued interest from ______ __,
199_]
Issue Price:
Interest Rate or
Method of Determining:
Date of Maturity:
Interest Payment Dates: May 15, November 15, except as
provided in Pricing Supplement
Interest Reset Dates:
Redemption:
<PAGE>
Closing Date:
Method of Payment:
Trustee, Registrar,
Authenticating and
Paying Agent: The Bank of New York
Modification, if any,
in the requirements to
deliver the documents
specified in Sections
5(b), (d) or (e) of
the Agreement:
Other terms: The Notes shall have such
additional terms as are specified
in the form of Pricing
Supplement, attached hereto as
Annex A
<PAGE>
[NAME OF AGENT]
By:________________________
Title:
Accepted:
INGERSOLL-RAND COMPANY
By: _________________________
[name]
[title]
CUSIP NO.____ INGERSOLL-RAND COMPANY
REGISTERED NO. FX__ MEDIUM-TERM NOTE, SERIES B PRINCIPAL AMOUNT: $_______
(Fixed Rate)
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the Depositary,
this note is a global Note and the following legend is applicable: 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.
The following summary of terms is subject to the information set
forth on the reverse hereof:
ORIGINAL ISSUE DATE: OPTIONAL REDEMPTION: / / YES / / NO
STATED MATURITY: INITIAL REDEMPTION DATE:
AUTHORIZED DENOMINATIONS: REDEMPTION PRICE: Initially __% of
Principal Amount and declining by __% of
FORM: / / BOOK ENTRY the Principal Amount on each anniversary
/ / CERTIFICATED of the Initial Redemption Date until the
Redemption Price is 100% of the
Principal Amount.
INTEREST RATE: OPTION TO ELECT REPAYMENT: / / YES / / NO
INTEREST PAYMENT DATE[S]: OPTIONAL REPAYMENT DATES:
REGULAR RECORD DATE[S]: OPTIONAL REPAYMENT PRICES:
/ / YES / / NO
DEPOSITARY:
AMORTIZING NOTES: / / YES / /
NO
OTHER PROVISIONS:
If this Security was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended,
the following shall be completed:
<PAGE>
ORIGINAL ISSUE TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as
DISCOUNT SECURITY: a percentage of aggregate
principal amount):
/ / YES / / NO
YIELD TO MATURITY: SHORT ACCRUAL PERIOD METHOD USED TO DETERMINE
OID: YIELD FOR SHORT ACCRUAL
PERIOD:
N/A
/ / Approximate / / Exact
INGERSOLL-RAND COMPANY, a corporation duly organized and
existing under the laws of New Jersey (herein called the "Company" which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to CEDE & Co., or
registered assigns, the principal sum set forth above on the Stated Maturity
shown above, and to pay interest thereon from the Original Issue Date shown
above or from and including the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for, as
the case may be. (Continued on next page.)
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATION OF INGERSOLL-RAND COMPANY
AUTHENTICATION
This is one of the Securities of By: ___________________________
the series designated herein and Its: ____________________________
referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK By: ___________________________
as Trustee Its: ____________________________
By:__________________________
Authorized Signatory
<PAGE>
(Continued from previous page.)
Interest will be paid on the interest payment date or dates
shown above (each, an "Interest Payment Date"), commencing with the first
such Interest Payment Date next succeeding the Original Issue Date shown
above (except as provided below), at the rate per annum specified above,
until the principal hereof is paid or made available for payment and on
Stated Maturity, and, if specified above, interest shall accrue on any
overdue principal and on any overdue installment of interest (to the extent
that the payment of such interest shall be legally enforceable) at the
overdue rate per annum set forth above. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, 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
Regular Record Date set forth above next preceding such Interest Payment
Date, which shall be the fifteenth calendar day next preceding such Interest
Payment Date. The first payment of interest on any Note originally issued
between a Regular Record Date and an Interest Payment Date will be made on
the Interest Payment Date following the next succeeding Regular Record Date
to the registered owner on such succeeding Regular Record Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Note (or one or more predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof to be given to Holders of Notes
of this series not less than 10 calendar days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes of this series
may be listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
Payments of interest (to be paid in U.S. dollars) will be
made by mailing a check to the Holder at the address of the Holder appearing
in the Security Register as of the applicable Regular Record Date.
Notwithstanding the foregoing, at the option of the Company, all payments of
interest and principal on this Note may be made by wire transfer of
immediately available funds as designated by the Holder not less than 15
calendar days prior to the Interest Payment Date. If a Holder holds
$10,000,000 or more in aggregate principal amount of Notes of like tenor and
terms (including the same Interest Payment Date), such Holder shall be
entitled to receive payments of interest (other than at Stated Maturity or
upon earlier redemption or repayment) in U.S. dollars by wire transfer of
immediately available funds, but only if appropriate payment instructions
have been received in writing by the Trustee not less than 15 calendar days
prior to the applicable Interest Payment Date. If such a payment with
respect to this Note cannot be made by wire transfer because the required
designation has not been received by the Trustee on or before the requisite
date or for any other reason, a notice will be mailed to the Holder at its
registered address requesting a designation pursuant to which such wire
transfer can be made and, upon the Trustee's receipt of such a designation,
such payment will be made within 15 days of such receipt. The Company will
pay any administrative costs imposed by banks in connection with making
payments by wire transfer, but not any tax, assessment or governmental charge
imposed upon the Holder of this Note. In the event that payment is so made
in accordance with the instructions of the Holder, such wire transfer shall
<PAGE>
be deemed to constitute full and complete payment of such interest and
principal on this Note.
If this is not a global Note, payment of the principal,
premium, if any, and interest payable at Stated Maturity in respect of this
Note will be paid in immediately available funds upon surrender of this Note
accompanied by wire instructions at the principal office of the Trustee,
provided that the Note is presented in time for the Trustee to make such
payments in such funds in accordance with its normal procedures. If the
Holder of this Note (as indicated above) is the Depositary or a nominee of
the Depositary, this Note is a global Note and the following legend is
applicable except as specified on the reverse hereof: THIS GLOBAL NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR.
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 Trustee referred to on the reverse hereof, directly or
through an Authenticating Agent, by manual signature of an authorized
signatory, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
<PAGE>
[Reverse of Note]
INGERSOLL-RAND COMPANY
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized
issue of Securities of the Company (herein called the "Notes"), issued and to
be issued in one or more series under an Indenture, dated as of August 1,
1986 (as supplemented, the "Indenture"), between the Company and The Bank of
New York, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), 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 thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Note is one of the Securities of the series designated on the face hereof.
The Notes may bear different dates, mature at different times, bear interest
at different rates, be subject to different redemption provisions and may
otherwise vary, all as provided in the Indenture. The Notes are limited to
an aggregate initial offering price of up to $750,000,000 or such greater
amount if Notes are issued at an original issue discount, as shall result in
aggregate gross proceeds to the Company of $750,000,000.
SECTION 2. Payments. Interest on this Note will be payable
on the Interest Payment Date or Interest Payment Dates as specified on the
face hereof and, in either case, at Stated Maturity or earlier redemption or
repayment.
Interest payments on each Interest Payment Date for this
Note will include accrued interest from the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the
case may be, to, but excluding, such Interest Payment Date or the date of
Maturity, as the case may be. Interest payments for this Note shall be
computed and paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note
is specified on the face hereof as an Amortizing Note, payments with respect
to this Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. If this Note is
specified on the face hereof as an Amortizing Note, a table setting forth
repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
All percentages resulting from any calculations under this
Note will be rounded, if necessary, to the nearest one hundred thousandth of
a percentage point (with five one-millionths of a percentage point being
rounded upward) and all currency or currency unit or dollar amounts used in
or resulting from any such calculation in respect of the Notes will be
rounded to the nearest one-hundredth of a unit (with five one-thousandths
being rounded upward) or nearest cent, as the case may be.
"Maturity" means the date on which the principal of this
Note becomes due and payable in full in accordance with the terms hereof and
<PAGE>
the terms of the Indenture, whether at Stated Maturity, upon acceleration,
redemption, repayment or otherwise.
SECTION 3. Redemption. If so specified on the face hereof,
the Company may at its option redeem this Note in whole or from time to time
in part on or after the date designated as the Initial Redemption Date on the
face hereof at the redemption price specified on the face hereof, together
with accrued and unpaid interest to the date of redemption, but interest
installments whose Stated Maturity is on or prior to the date of redemption
will be payable to the Holder of this Note of record at the close of business
on the relevant Regular Record Date referred to on the face hereof, all as
provided in the Indenture. The Company may exercise such option by causing
the Trustee to mail a notice of such redemption at least 30 but not more than
60 calendar days prior to the date of redemption, subject to all the
conditions and provisions of the Indenture. In the event of redemption of
this Note in part only, a new Note or Notes for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation
hereof.
SECTION 4. Repayment. If so specified on the face hereof,
this Note will be repayable prior to Stated Maturity at the option of the
Holder on the Optional Repayment Dates shown on the face hereof at the
Optional Repayment Prices shown on the face hereof together with interest
accrued and unpaid thereon to the date of repayment. In order for this Note
(if it is repayable at the option of the Holder) to be repaid prior to Stated
Maturity, the Paying Agent must receive at least 30 but not more than 45
calendar days prior to an Optional Repayment Date (i) this Note with the form
below entitled "Option to Elect Repayment" duly completed or (ii) a hand
delivery, facsimile transmission or letter (first class, postage prepaid)
from a member of a national securities exchange or the National Association
of Securities Dealers, Inc. or a commercial bank or trust company in the
United States of America setting forth the name of the Holder of this Note,
the principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Note
with the form below entitled "Option to Elect Repayment" duly completed will
be received by the Paying Agent not later than five Business Days after the
date of such hand delivery, facsimile transmission or letter (first class,
postage prepaid). If the procedure described in clause (ii) of the preceding
sentence is followed, this Note with such form duly completed must be,
received by the Trustee by such fifth Business Day. Exercise of the
repayment option by the Holder of this Note shall be irrevocable, except that
a Holder who has tendered this Note for repayment may revoke any such tender
for repayment by written notice to the Paying Agent received prior to the
close of business on the tenth calendar day prior to the repayment date. The
repayment option may be exercised by the Holder of this Note for less than
the entire principal amount of the Note provided that the principal amount of
the Note remaining outstanding after repayment is an authorized denomination.
Upon such partial repayment this Note shall be cancelled and a new Note or
Notes for the remaining principal amount hereof shall be issued in the name
of the Holder of this Note.
SECTION 5. Sinking Fund. This Note will not be subject to
any sinking fund.
SECTION 6. Original Issue Discount Notes. Notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
<PAGE>
Note, the amount payable in the event of redemption or repayment prior to the
Stated Maturity hereof in lieu of the principal amount due at the Stated
Maturity hereof shall be the Amortized Face Amount of this Note as of the
redemption date or the date of repayment, as the case may be. The "Amortized
Face Amount" of this Note shall be the amount equal to (a) the Issue Price
(as set forth on the face hereof) plus (b) that portion of the difference
between the Issue Price and the principal amount hereof that has accrued at
the yield to maturity (as set forth on the face hereof) (computed in
accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated
but in no event shall the Amortized Face Amount of this Note exceed its
principal amount.
SECTION 7. Events of Default. If any Event of Default with
respect to Notes of this series shall occur and be continuing, the principal
of the Notes of this series may be declared due and payable in the manner and
with the effect provided in the Indenture; provided, however, that
notwithstanding anything herein to the contrary, if this Note is an Original
Issue Discount Note, the amount so declared due and payable shall be the
Amortized Face Amount of this Note as of the date of such declaration.
SECTION 8. Modifications and Waivers; Obligation of the
Company Absolute. The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than 66 2/3% in
principal amount of the outstanding Securities of all series affected by such
modification (voting as one class), to modify the Indenture or the rights of
the Holders of the Securities pursuant to a supplemental indenture, except
that no such modification shall, without the consent of the Holder of each
Security so affected, (i) change the stated maturity of the principal of, or
any instalment of principal of or interest, if any, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to the Indenture, or change the
place of payment of, or the coin or currency in which, any Security 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 stated maturity
thereof, (ii) reduce the percentage of Securities, the consent of the Holder
of which is required for any such modification or for certain waivers under
the Indenture or (iii) modify certain provisions of the Indenture relating to
the modification of the Indenture, waiver of past defaults or waiver of
certain covenants, except for certain permitted modifications.
No reference herein to the Indenture and 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, and
premium, if any, and interest on this Note at the times, places and rates,
and in the coin or currency, herein prescribed.
SECTION 9. Defeasance and Covenant Defeasance. The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Events of Default, upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Note.
<PAGE>
SECTION 10. Authorized Denominations. Unless otherwise
noted on the face hereof, the Notes of this series are issuable only in
global or certificated registered form, without coupons, in denominations of
$1,000 and any integral multiple of $1,000 in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth and to the
limitations described below, if applicable, Notes of this series are
exchangeable for a like aggregate principal amount of Notes of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
SECTION 11. Registration of Transfer. As provided in the
Indenture and subject to certain limitations therein set forth and to the
limitations described below, if applicable, the transfer of this Note is
registerable in the securities register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar (which shall initially
be the Trustee, 101 Barclay Street, 21st Floor, New York, New York 10286,
(Attention: Corporate Trust Trustee Administration) or at such other address
as it may designate as its principal corporate trust office in The City of
New York) duly executed by, the Holder hereof or the Holder's attorney duly
authorized in writing, and thereupon one or more new Notes of this series and
of like tenor, of authorized denominations and for the same Stated Maturity
and aggregate principal amount, will be issued to the designated transferee
or transferees.
If this Note is a global Note (as specified on the face
hereof), this Note is exchangeable only if (x) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for this
global Note or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (y) the
Company in its sole discretion determines that this Note shall be
exchangeable for certificated Notes in registered form or (z) an Event of
Default, or an event which with the passage of time or the giving of notice
would become an Event of Default, with respect to the Notes represented
hereby has occurred and is continuing, provided that the definitive Notes so
issued in exchange for this permanent global Note shall be in denominations
of $1,000 and any integral multiple of $1,000 in excess thereof and be of
like aggregate principal amount and tenor as the portion of this permanent
global Note to be exchanged, and provided further that, unless the Company
agrees otherwise, Notes of this series in certificated registered form will
be issued in exchange for this permanent global Note, or any portion hereof,
only if such Notes in certificated registered for were requested by written
notice to the Trustee or the Securities Registrar by or on behalf of a person
who is the beneficial owner of an interest hereof given through the Holder
hereof. Except as provided above, owners of beneficial interests in this
permanent global Note will not be entitled to receive physical delivery of
Notes in certificated registered form and will not be considered the Holders
thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
<PAGE>
SECTION 12. Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Company, the Trustee or any such agent shall be
affected by notice to the contrary.
SECTION 13. Governing Law. The Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State
of New York, without regard to principles of conflicts of laws.
SECTION 14. Defined Terms. All terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them
in the Indenture; and all references in the Indenture to "Security" or
"Securities" shall be deemed to include the Notes. "Business Day" means any
Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or portion hereof
below designated at (i) the applicable Optional Repayment Price indicated on
the face hereof, together with interest accrued and unpaid thereon to the
date of repayment, if this Note is to be repaid pursuant to Section 4 of this
Note. Specify the denomination or denominations (which shall be $1,000 or an
integral multiple of $1,000 in excess thereof) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in
the absence of any specification, one such Note will be issued for the
portion not being repaid):
___________________________________
Dated:_____________________________ __________________________________
Signature
Sign exactly as name appears on
the front of this Note.
Principal amount to be repaid if Indicate address where check is to
amount to be repaid is less than be sent, if repaid:
the entire principal amount of this
Note (principal amount remaining __________________________________
must be an authorized denomination)
__________________________________
$__________________________________
(which shall be an integral SOCIAL SECURITY OR OTHER TAXPAYER
multiple of $1,000 (or, if no such ID NUMBER
reference is made, an amount equal
to the minimum Authorized __________________________________
Denomination)).
<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 POSTAL ZIP CODE OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing _________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _________________ Signature________________________________
Sign exactly as name appears on the front
of this Note
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
CUSIP NO.
REGISTERED NO. FLC_ PRINCIPAL AMOUNT: $___________
INGERSOLL-RAND COMPANY
MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
If the registered owner of this Note (as indicated below) is
The Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this note is a global Note and the following legend is
applicable: 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.
<PAGE>
The following summary of terms is subject to the information
set forth on the reverse hereof:
OPTIONAL REDEMPTION: / / YES / / NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: REDEMPTION PRICE: Initially __% of
Principal Amount and declining by __%
AUTHORIZED DENOMINATIONS: of the Principal Amount on each
anniversary of the Initial Redemption
Date until the Redemption Price is 100%
of the Principal Amount.
FORM: / / BOOK ENTRY OPTION TO ELECT
/ / CERTIFICATED REPAYMENT: / / YES / / NO
INTEREST RATE BASIS: OPTIONAL REPAYMENT DATES:
INDEX MATURITY: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATES: OTHER PROVISIONS:
INITIAL INTEREST RATE:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
SPREAD:
SPREAD MULTIPLIER:
INTEREST RESET PERIOD:
INTEREST RESET DATES:
INTEREST DETERMINATION DATE:
INTEREST PAYMENT DATES:
<PAGE>
CALCULATION AGENT:
AMORTIZING NOTE: / / YES / / NO
Depositary:
If this Security was issued with "original issue discount"
for purposes of Section 1273 of the Internal Revenue Code of 1986, as
amended, the following shall be completed:
ORIGINAL ISSUE TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
DISCOUNT SECURITY: as percentage of aggregate
principal amount):
/ / Yes / / No
YIELD TO MATURITY: SHORT ACCRUAL PERIOD OID: METHOD USED TO DETERMINE
YIELD FOR SHORT ACCRUAL
PERIOD:
/ / Approximate / / Exact
INGERSOLL-RAND COMPANY, a corporation duly organized and
existing under the laws of New Jersey (herein called the "Company," which
term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
_____________________________________________________________ or registered
assigns, the principal sum set forth above on the Stated Maturity shown
above, and to pay interest thereon from the Original Issue Date shown above
or from and including the most recent Interest Payment Date (as hereinafter
defined) to which interest has been paid or duly provided for, as the case
may be.
Interest will be paid on the Interest Payment Dates shown
above ("Interest Payment Dates"), at the rate per annum determined in
accordance with the provisions on the reverse hereof, depending on the
Interest Rate Basis specified above, commencing with the first such Interest
Payment Date next succeeding the Original Issue Date shown above (except as
provided below) until the principal hereof is paid or made available for
payment and on Stated Maturity, and, if specified above, interest shall
accrue on any overdue principal and on any overdue installment of interest
(to the extent that the payment of such interest shall be legally
enforceable) at the Overdue Rate per annum set forth above. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will, as provided in such Indenture, 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 Regular Record Date set forth above next preceding such
Interest Payment Date, which shall be the fifteenth calendar day next
preceding such Interest Payment Date. The first payment of interest on any
Note originally issued between a Regular Record Date and an Interest Payment
Date will be made on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such succeeding Regular Record
Date. Except as otherwise provided in the Indenture, any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at
the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof to be given to
<PAGE>
Holders of Notes of this series not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payments of principal, interest and premium, if any, (each
to be paid in U.S. dollars) will be made by mailing a check to the Holder at
the address of the Holder appearing in the Security Register as of the
applicable Regular Record Date. Notwithstanding the foregoing, at the option
of the Company, all payments of interest and principal on this Note may be
made by wire transfer of immediately available funds as designated by the
Holder not less than 15 calendar days prior to the Interest Payment Date. If
a Holder holds $10,000,000 or more in aggregate principal amount of Notes of
like tenor and terms (including the same Interest Payment Date), such Holder
shall be entitled to receive payments of interest (other than at Stated
Maturity or upon earlier redemption or repayment) in U.S. dollars by wire
transfer of immediately available funds, but only if appropriate payment
instructions have been received in writing by the Trustee not less than 15
calendar days prior to the applicable Interest Payment Date. The Company
will pay any administrative costs imposed by banks in connection with making
payments by wire transfer, but not any tax, assessment or governmental charge
imposed upon the Holder of this Note. In the event that payment is so made
in accordance with the instructions of the Holder, such wire transfer shall
be deemed to constitute full and complete payment of such interest and
principal on this Note. If this is not a global Note, payment of the
principal, premium, if any, and interest payable at Maturity in respect of
this Note will be paid in immediately available funds upon surrender of this
Note accompanied by wire instructions at the principal office of the Trustee,
provided that the Note is presented in time for the Trustee to make such
payments in such funds in accordance with its normal procedures.
If the Holder of this Note (as indicated above) is the
Depositary or a nominee of the Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof:
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
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 Trustee referred to on the reverse hereof, directly or
through an Authenticating Agent, by manual signature of an authorized
signatory, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
INGERSOLL-RAND COMPANY
By: _________________________________
Its: _____________________________________
By: __________________________________
Its: _____________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:___________________________________
Authorized Signatory
<PAGE>
[Reverse of Note]
INGERSOLL-RAND COMPANY
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized
issue of Securities of the Company (herein called the "Notes"), issued and to
be issued in one or more series under an Indenture, dated as of August 1,
1986 (as supplemented, the "Indenture"), between the Company and The Bank of
New York, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), 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 thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Note is one of the Securities of the series designated on the face hereof.
The Notes may bear different dates, mature at different times, bear interest
at different rates, be subject to different redemption provisions and may
otherwise vary, all as provided in the Indenture. The Notes are limited to
an aggregate initial offering price of up to $750,000,000 or such greater
amount if Notes are issued at an original issue discount, as shall result in
aggregate gross proceeds to the Company of $750,000,000.
SECTION 2. Interest Rate Calculations; Payments. Unless
otherwise specified on the face hereof, the interest rate on this Note will
be equal to either (i) the interest rate calculated by reference to the
specified Interest Rate Basis plus or minus the Spread, if any, or (ii) the
interest rate calculated by reference to the specified Interest Rate Basis
multiplied by the Spread Multiplier, if any. The "Spread" is the number of
basis points (one basis point equals one-hundredth of a percentage point)
specified on the face hereof as being applicable to this Note, and the
"Spread Multiplier" is the percentage specified on the face hereof as being
applicable to this Note. Set forth on the face hereof is the Interest Rate
Basis and the Spread or Spread Multiplier, if any, and the maximum or minimum
interest rate limitation, if any, applicable to this Note. Set forth on the
face hereof are particulars as to the Calculation Agent (unless specified
otherwise, The Bank of New York (in such capacity, the "Calculation Agent")),
Index Maturity, Original Issue Date, the interest rate in effect for the
period from the Original Issue Date to the first Interest Reset Date set
forth on the face hereof (the "Initial Interest Rate"), Interest
Determination Dates, Interest Payment Dates, Regular Record Dates and
Interest Reset Dates with respect to this Note.
Unless otherwise specified on the face hereof, if this Note
is specified on the face hereof as an Amortizing Note, payments with respect
to this Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. If this Note is
specified on the face hereof as an Amortizing Note, a table setting forth
repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
Except as provided below, interest on this Note will be
payable (i) if this Note resets daily, weekly or monthly, on the third
Wednesday of each month or on the third Wednesday of March, June, September
<PAGE>
and December of each year, as specified on the face hereof; (ii) if this Note
resets quarterly, on the third Wednesday of March, June, September and
December of each year; (iii) if this Note resets semiannually, on the third
Wednesday of each of two months of each year specified on the face hereof;
and (iv) if this Note resets annually, on the third Wednesday of one month of
each year specified on the face hereof (each such day being an "Interest
Payment Date"), and in each case at Maturity. If any Interest Payment Date,
other than Maturity, for this Note would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be postponed to the next day
that is a Business Day, except that if this Note is a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date shall be the immediately preceding London Business Day. If the Maturity
for this Note falls on a day that is not a Business Day, payment of
principal, premium, if any, and interest with respect to this Note will be
made on the next succeeding Business Day with the same force and effect as if
made on the due date, and no interest shall be payable on the date of payment
for the period from and after the due date.
Unless otherwise specified on the face hereof, the rate of
interest on this Note will be reset daily, weekly, quarterly, semiannually or
annually (such period being the "Reset Period" for such Note, and the first
day of each Reset Period being an "Interest Reset Date"), as specified on the
face hereof. The Interest Reset Date will be, if this Note resets daily,
each Business Day; if this Note resets weekly (unless the Interest Rate Basis
on the face hereof is the Treasury Rate), the Wednesday of each week; if this
Note resets weekly and the Interest Rate Basis on the face hereof is the
Treasury Rate, the Tuesday of each week; if this Note resets monthly, the
third Wednesday of each month; if this Note resets quarterly, the third
Wednesday of each March, June, September and December; if this Note resets
semiannually, the third Wednesday of the two months of each year specified on
the face hereof; and if this Note resets annually, the third Wednesday of one
month of each year specified on the face hereof; provided, however, that the
interest rate in effect from the date of issue to the first Interest Reset
Date will be the Initial Interest Rate specified on the face hereof. If the
Interest Reset Date would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that is a Business
Day, except that if the Interest Rate Basis on the face hereof is LIBOR, if
such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding London Business Day. Each
adjusted rate shall be applicable on and after the Interest Reset Date to
which it relates to, but not including, the next succeeding Interest Reset
Date or until Stated Maturity or the date of redemption or repayment, as the
case may be.
The interest rate for each Reset Period will be the rate
determined by the Calculation Agent on the Calculation Date (as defined
below) pertaining to the Interest Determination Date pertaining to the
Interest Reset Date for such Reset Period. Unless otherwise specified on the
face hereof, the "Interest Determination Date" pertaining to an Interest
Reset Date for (a) a Commercial Paper Rate Note (the "Commercial Paper
Interest Determination Date"), (b) a Federal Funds Rate Note (the "Federal
Funds Interest Determination Date"), (c) a CD Rate Note (the "CD Interest
Determination Date'), (d) a Prime Rate Note (the "Prime Interest
Determination Date"), or (e) a CMT Rate Note (the "CMT Interest Determination
Date") will be the second Business Day prior to such Interest Reset Date.
Unless otherwise specified on the face hereof, the Interest Determination
Date pertaining to an Interest Reset Date for a LIBOR Note (the "LIBOR
<PAGE>
Interest Determination Date") will be the second London Business Day
immediately preceding each Interest Reset Date. Unless otherwise specified
on the face hereof, the Interest Determination Date pertaining to an Interest
Reset Date for a Treasury Rate Note (the "Treasury Interest Determination
Date") will be the day of the week in which such Interest Reset Date falls on
which Treasury bills would normally be auctioned. Treasury bills are usually
sold at auction on Monday of each week, unless that day is a legal holiday,
in which case the auction is usually held on the following Tuesday, except
that such auction may be held on the preceding Friday. If, as a result of a
legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Treasury Interest Determination Date pertaining to the Reset
Period commencing in the next succeeding week, if an auction date shall fall
on any Interest Reset Date for a Treasury Rate Note, then such Interest Reset
Date shall instead be the first Business Day immediately following such
auction date. Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to any Interest Determination Date shall be the
earlier of (i) the tenth calendar day after the 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, as the case may be.
As used herein, "Business Day" means, unless otherwise
specified on the face hereof, any Monday, Tuesday, Wednesday, Thursday or
Friday that in The City of New York is not a day on which banking
institutions are authorized or required by law, regulation or executive order
to close and, if the Interest Rate Basis of this Note is LIBOR, is also a
London Business Day. As used herein, "London Business Day" means any day on
which dealings in deposits denominated in U.S. Dollars are transacted in the
London interbank market.
Unless otherwise indicated on the face hereof, interest on
this Note will accrue from and including the date of issue or from and
including the immediately preceding Interest Payment Date in respect of which
interest has been paid or duly provided for, as the case may be, to but
excluding the Interest Payment Date or the Maturity, as the case may be.
Accrued interest is calculated by multiplying the face amount of this Note by
an accrued interest factor. This accrued interest factor is computed by
adding the interest factors calculated for each day from the date of issue,
or from the last date to which interest has been paid, to the date for which
accrued interest is being calculated. The interest factor for each such day
is computed by dividing the interest rate applicable to such day by 360, in
the case of Commercial Paper Rate Notes, CD Rate Notes, Federal Funds Rate
Notes, LIBOR Notes and Prime Rate Notes, or by the actual number of days in
the year, in the case of Treasury Rate Notes or CMT Rate Notes.
Unless otherwise indicated on the face hereof, the
Calculation Agent shall calculate the interest rate on this Note, as provided
below. The Calculation Agent will, upon the request of the Holder of this
Note, provide the interest rate then in effect and, if then determined, the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to
this Note. The Trustee shall act as the initial Calculation Agent for the
Notes. For purposes of calculating the rate of interest payable on this
Note, the Company will enter into an agreement with the Calculation Agent.
The Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
<PAGE>
Notwithstanding the determination of the interest rate as
provided below, the interest rate on this Note for any interest period 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 interest
rate on this Note will in no event be higher than the maximum rate permitted
by New York or other applicable law, as the same may be modified by United
States law of general application.
"Maturity" means the date on which the principal of this
Note becomes due and payable in full in accordance with the terms hereof and
the terms of the Indenture, whether at Stated Maturity, upon acceleration,
redemption, repayment or otherwise.
Determination of Commercial Paper Rate. If the Interest Rate Basis specified
on the face hereof is Commercial Paper Rate, the interest rate determined
with respect to the Commercial Paper Rate Interest Determination Date shall
be the Commercial Paper Rate plus or minus the Spread, if any, or multiplied
by the Spread Multiplier, if any, as specified on the face hereof, as
determined on such Commercial Paper Rate Interest Determination Date.
"Commercial Paper Rate" means, with respect to any
Commercial Paper Interest Determination Date, the Money Market Yield
(calculated as described below) of the rate on such date for commercial paper
having the Index Maturity designated on the face hereof as published by the
Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication of the Board
of Governors ("H.15(519)") under the heading "Commercial Paper --
Nonfinancial." In the event that such rate is not published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such
Commercial Paper Interest Determination Date, then the Commercial Paper Rate
with respect to such Commercial Paper Interest Determination Date shall be
the Money Market Yield of the rate on such Commercial Paper Interest
Determination Date for commercial paper having the Index Maturity designated
on the face hereof as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Commercial Paper." If by 3:00 P.M., New York City time,
on such Calculation Date such rate is not yet published in either H.15(519)
or Composite Quotations, then the Commercial Paper Rate for such Commercial
Paper Interest Determination Date shall be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the
offered rates (quoted on a bank discount basis) as of 11:00 A.M., New York
City time, on such Commercial Paper Interest Determination Date, of three
leading dealers of commercial paper in The City of New York selected by the
Calculation Agent for commercial paper having the Index Maturity designated
on the face hereof placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized securities rating agency;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be the Commercial Paper Rate in effect immediately
prior to such Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a
percentage rounded, if necessary, to the nearest one hundred-thousandth of a
percent) calculated in accordance with the following formula:
<PAGE>
D x 360
Money Market Yield = _____________ x 100
360 - (D x M)
where "D" refers to the 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 period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to the CD
Interest Determination Date shall be the CD Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CD Interest Determination Date.
"CD Rate" means, with respect to any CD Interest
Determination Date, the rate on such date for negotiable certificates of
deposit having the Index Maturity designated on the face hereof as published
in H.15(519) under the heading "CDs (Secondary Market)." In the event that
such rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such CD Interest Determination Date, then the
CD Rate with respect to such CD Interest Determination Date shall be the rate
on such CD Interest Determination Date for negotiable certificates of deposit
having the Index Maturity designated on the face hereof as published in
Composite Quotations under the heading "Certificates of Deposit." If by 3:00
P.M., New York City time, on such Calculation Date such rate is not published
in either H.15(519) or Composite Quotations, then the CD Rate on such CD
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the secondary market offered rates as of
10:00 A.M., New York City time, on such CD Interest Determination Date of
three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money market banks
(in the market for negotiable certificates of deposit) with a remaining
maturity closest to the Index Maturity specified on the face hereof in a
denomination of $5,000,000; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date
will be the CD Rate in effect immediately prior to such CD Interest
Determination Date.
Determination of CMT Rate. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to the CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread,
if any, or multiplied by the Spread Multiplier, if any, as specified on the
face hereof, as determined on such CMT Interest Determination Date.
"CMT Rate" means, with respect to any CMT Interest
Determination Date, the rate displayed in the Designated CMT Telerate Page
(as defined below) under the caption ". . . Treasury Constant Maturities . .
. Federal Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.,"
under the column for the Designated CMT Maturity Index (as defined below) for
(i) if the Designated CMT Telerate Page is 7055, the rate on such CMT
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week, or the month, as applicable, ended immediately preceding the
week in which the applicable CMT Interest Determination Date occurs. If such
rate is no longer displayed on the relevant page, or if not displayed by 3:00
<PAGE>
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or if not published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CMT Interest
Determination Date, then the CMT Rate for such CMT Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the Board of Governors
of the Federal Reserve System or the United States Department of the Treasury
that the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the relevant
H.15(519). If such information is not provided by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such CMT Interest Determination
Date, then the CMT Rate for the CMT Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent cannot obtain three such Treasury Note quotations,
the CMT Rate for such CMT Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of approximately 3:30 P.M.,
New York City time, on the CMT Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated
CMT Maturity Index and a remaining term to maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100,000,000. If three or
four (and not five) of such Reference Dealers are quoting as described above,
then the CMT Rate will be based on the arithmetic mean of the offer prices
obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT
Rate will be the CMT Rate in effect on such CMT Interest Determination Date.
If two Treasury Notes with an original maturity as described in the second
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service on the page specified on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as published in H.15(519)), for the purposes of
<PAGE>
displaying Treasury Constant Maturities as published in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the Treasury Notes (either one, two, three, five, seven, ten,
twenty or thirty years) specified on the face hereof with respect to which
the CMT Rate will be calculated. If no such maturity is specified on the
face hereof, the Designated CMT Maturity Index shall be two years.
Determination of Federal Funds Rate. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with
respect to the Federal Funds Interest Determination Date shall be the Federal
Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on such
Federal Funds Interest Determination Date.
"Federal Funds Rate" means, with respect to any Federal
Funds Interest Determination Date, the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)." In the
event that such rate is not published prior to 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Federal Funds Interest
Determination Date, then the Federal Funds Rate shall be the rate on such
Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If by 3:00
P.M., New York City time, on such Calculation Date such rate is not published
in either H.15(519) or Composite Quotations, then the Federal Funds Rate with
respect to such Federal Funds Interest Determination Date shall be calculated
by the Calculation Agent and shall be the arithmetic mean (rounded, if
necessary, to the nearest one hundred-thousandth of a percent) of the rates
as of 9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City
of New York selected by the Calculation Agent; provided, however, that if the
brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate with respect to such
Federal Funds Interest Determination Date will be the Federal Funds Rate in
effect immediately prior to such Federal Funds Interest Determination Date.
Determination of LIBOR. If the Interest Rate Basis specified on the face
hereof is LIBOR, the interest rate determined with respect to the LIBOR
Interest Determination Date shall be LIBOR plus or minus the Spread, if any,
or multiplied by the Spread Multiplier, if any, specified on the face hereof,
as determined on such LIBOR Interest Determination Date.
LIBOR will be determined by the Calculation Agent in
accordance with the following provisions:
(i) With respect to any LIBOR Interest
Determination Date, LIBOR will be either: (a) if "LIBOR
Reuters" is specified on the face hereof, the arithmetic
mean of the offered rates (unless the specified designated
LIBOR Page (as defined below) by its terms provides only for
a single rate, in which case such single rate shall be used)
for deposits in the Designated LIBOR Currency (as defined
below) having the Index Maturity designated on the face
hereof, commencing on the second London Business Day
<PAGE>
immediately following the LIBOR Interest Determination Date,
which appear on the Designated LIBOR Page specified on the
face hereof as of 11:00 A.M., London time, on that LIBOR
Interest Determination Date, if at least two such offered
rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR
Telerate" is specified on the face hereof, the rate for
deposits denominated in U.S. Dollars (as defined below)
having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, which
appears on the Designated LIBOR page specified on the face
hereof as of 11:00 A.M. London time on that LIBOR Interest
Determination Date. Notwithstanding the foregoing, if fewer
than two offered rates appear on the Designated LIBOR Page
with respect to LIBOR Reuters (unless the specified
Designated LIBOR Page with respect to LIBOR Reuters by its
terms provides only for a single rate, in which case such
single rate shall be used), or if no rate appears on the
Designated LIBOR Page with respect to LIBOR Telerate,
whichever may be applicable, LIBOR in respect of the related
LIBOR Interest Determination Date will be determined as if
the parties had specified the rate described in clause (ii)
below.
(ii) With respect to any LIBOR Interest
Determination Date on which fewer than two offered rates
appear on the Designated LIBOR Page with respect to LIBOR
Reuters (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which cases such single
rate shall be used), or if no rate appears on the designated
LIBOR Page with respect to LIBOR Telerate, as the case may
be, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank
market selected by the Calculation Agent to provide the
Calculation Agent with its offered rate quotation for
deposits in the Designated LIBOR Currency (as defined below)
for the period of the Index Maturity specified on the face
hereof, commencing on the second London Business Day
immediately following such LIBOR Interest Determination
Date, to prime banks in the London interbank market as of
11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is
representative for a single transaction in such Designated
LIBOR Currency in such market at such time. If at least two
such quotations are provided, LIBOR determined on such LIBOR
Interest Determination Date will be the arithmetic mean of
such quotations. If fewer than two quotations are provided,
LIBOR determined on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted as of 11:00
A.M. in the applicable major banks in New York (as defined
below), on such LIBOR Interest Determination Date by three
major banks in New York selected by the Calculation Agent
for loans in U.S. Dollars to leading banks, having the Index
Maturity designated on the face hereof in a principal amount
that is representative for a single transaction in such
Designated LIBOR Currency in such market at such time;
<PAGE>
provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined on such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR
Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a
composite currency), if any, designated on the face hereof as the Designated
LIBOR Currency. If no such currency is designated in on the face hereof, the
Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for U.S. Dollar Deposits (if "LIBOR Reuters"
is designated on the face hereof), or (b) the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank rates of
major banks for U.S. Dollar Deposits (if "LIBOR Telerate" is designated on
the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is specified
on the face hereof, LIBOR for the applicable Designated LIBOR Currency will
be determined as if LIBOR Telerate page 3750 had been chosen.
Determination of Treasury Rate. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to
the Treasury Interest Determination Date shall be the Treasury Rate plus or
minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
specified on the face hereof, as determined on such Treasury Interest
Determination Date.
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for 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 P.M., New York City time, on the Calculation Date pertaining to such
Treasury Interest Determination Date, the average auction rate (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 U.S. Department
of the Treasury. In the event that such rate is not available by 3:00 P.M.,
New York City time, on such Treasury Interest Determination Date 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) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Interest Determination Date, of three leading primary
U.S. government securities dealers selected by the Calculation Agent for the
issue of Treasury bills with a remaining maturity closest to the Index
Maturity designated on the face hereof; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate with respect to such Treasury
Interest Determination Date will be the Treasury Rate in effect immediately
prior to such Treasury Interest Determination Date.
Determination of Prime Rate. If the Interest Rate Basis specified on the
face hereof is the Prime Rate, the interest rate determined with respect to
the Prime Interest Determination Date shall be the Prime Rate plus or minus
the Spread, if any, or Spread Multiplier, if any, specified on the face
hereof, as determined on such Prime Interest Determination Date.
<PAGE>
"Prime Rate" means, with respect to any Prime Interest
Determination Date, the rate set forth on such date in H.15(519) under the
heading "Bank Prime Loan." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such Prime Rate Interest Determination Date, then the Prime Rate with respect
to such Prime Interest Determination Date shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the Reuters
Screen USPRIME1 Page as such bank's prime rate or base lending rate as in
effect for that Prime Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 Page for the Prime Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by
a 360-day year as of the close of business on such Prime Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than two quotations are
provided, the Prime Rate with respect to such Prime Interest Determination
Date shall be determined on the basis of the rates furnished 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, 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 provide such rate or rates; provided,
however, that if the bank or trust company selected as aforesaid is not
quoting as mentioned in this sentence, the Prime Rate with respect to such
Prime Interest Determination Date will be the Prime Rate in effect
immediately prior to such Prime Interest Determination Date. "Reuters Screen
USPRIME1 Page" means the display designated as page "USPRIME1" on the Reuters
Monitor Money Rate Service (or such other page as may replace the USPRIME1
page on the service for the purpose of displaying the prime rate or base
lending rate of major banks).
The Calculation Agent shall calculate the interest rate on
this Note in accordance with the foregoing as soon as practicable after the
Interest Determination Date.
All percentages resulting from any calculations under this
Note will be rounded, if necessary, to the nearest one hundred thousandth of
a percentage point (with five one-millionths of a percentage point being
rounded upward) and all currency or currency unit or dollar amounts used in
or resulting from any such calculation in respect of the Notes will be
rounded to the nearest one-hundredth of a unit (with five one-thousandths
being rounded upward) or nearest cent, as the case may be.
SECTION 3. Redemption. If so specified on the face hereof,
the Company may at its option redeem this Note in whole or from time to time
in part on or after the date designated as the Initial Redemption Date on the
face hereof at the redemption price specified on the face hereof, together
with accrued and unpaid interest to the date of redemption, but interest
installments whose Stated Maturity is on or prior to the date of redemption
will be payable to the Holder of this Note of record at the close of business
on the relevant Regular Record Date referred to on the face hereof, all as
provided in the Indenture. The Company may exercise such option by causing
the Trustee to mail a notice of such redemption at least 30 but not more than
60 calendar days prior to the date of redemption. In the event of redemption
of this Note in part only, a new Note or Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
<PAGE>
SECTION 4. Repayment. If so specified on the face hereof,
this Note will be repayable prior to Stated Maturity at the option of the
Holder on the Optional Repayment Dates shown on the face hereof at the
Optional Repayment Prices shown on the face hereof together with interest
accrued and unpaid thereon to the date of repayment. In order for this Note
(if it is repayable at the option of the Holder) to be repaid prior to Stated
Maturity, the Paying Agent must receive at least 30 but not more than 45
calendar days prior to an Optional Repayment Date (i) this Note with the form
below entitled "Option to Elect Repayment" duly completed or (ii) a hand
delivery, facsimile transmission or letter (first class, postage prepaid)
from a member of a national securities exchange or the National Association
of Securities Dealers, Inc. or a commercial bank or trust company in the
United States of America setting forth the name of the Holder of this Note,
the principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Note
with the form below entitled "Option to Elect Repayment" duly completed will
be received by the Paying Agent not later than five Business Days after the
date of such handle delivery, facsimile transmission or letter (first class,
postage prepaid). If the procedure described in clause (ii) of the preceding
sentence is followed, this Note with such form duly completed must be
received by the Trustee by such fifth Business Day. Exercise of the
repayment option by the Holder of this Note shall be irrevocable, except that
a Holder who has tendered this Note for repayment may revoke any such tender
for repayment by written notice to the Paying Agent received prior to the
close of business on the tenth calendar day prior to the repayment date. The
repayment option may be exercised by the Holder of this Note for less than
the entire principal amount of the Note provided that the principal amount of
the Note remaining outstanding after repayment is an authorized denomination.
Upon such partial repayment this Note shall be cancelled and a new Note or
Notes for the remaining principal amount hereof shall be issued in the name
of the Holder of this Note.
SECTION 5. Sinking Fund. This Note will not be subject to
any sinking fund.
SECTION 6. Original Issue Discount Notes. Notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount payable in the event of redemption or repayment prior to the
Stated Maturity hereof in lieu of the principal amount due at the Stated
Maturity hereof shall be the Amortized Face Amount of this Note as of the
redemption date or the date of repayment, as the case may be. The "Amortized
Face Amount" of this Note shall be the amount equal to (a) the Issue Price
(as set forth on the face hereof) plus (b) that portion of the difference
between the Issue Price and the principal amount hereof that has accreted at
the yield to maturity (as set forth on the face hereof) (computed in
accordance with generally accepted United States bond yield computation
principles) at the date as of which the Amortized Face Amount is calculated
but in no event shall the Amortized Face Amount of this Note exceed its
principal amount.
SECTION 7. Events of Default. If any Event of Default with
respect to Notes of this series shall occur and be continuing, the principal
of the Notes of this series may be declared due and payable in the manner and
with the effect provided in the Indenture; provided, however, that
notwithstanding anything herein to the contrary, if this Note is an Original
<PAGE>
Issue Discount Note, the amount so declared due and payable shall be the
Amortized Face Amount of this Note as of the date of such declaration.
SECTION 8. Modifications and Waivers; Obligation of the
Company Absolute. The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than 66 2/3% in
principal amount of the outstanding Securities of all series affected by such
modification (voting as one class), to modify the Indenture or the rights of
the Holders of the Securities pursuant to a supplemental indenture, except
that no such modification shall, without the consent Holder of each Security
so affected, (i) change the stated maturity of the principal of, or any
instalment of principal of or interest, if any, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to the Indenture, or change the
place of payment of, or the coin or currency in which, any Security 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 stated maturity
thereof, (ii) reduce the percentage of Securities, the consent of the Holder
of which is required for any such modification or for certain waivers under
the Indenture or (iii) modify certain provisions of the Indenture relating to
the modification of the Indenture, waiver of past defaults or waiver of
certain covenants, except for certain permitted modifications.
No reference herein to the Indenture and 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, and
premium, if any, and interest on this Note at the times, places and rates,
and in the coin or currency, herein prescribed.
SECTION 9. Defeasance and Covenant Defeasance. The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Events of Default, upon compliance by the Company
with certain conditions set forth therein, which provisions apply to this
Note.
SECTION 10. Authorized Denominations. Unless otherwise
noted on the face hereof, the Notes of this series are issuable only in
global or certified registered form, without coupons, in denominations of
$1,000 and any integral multiple of $1,000 in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth and to the
limitations described below, if applicable, Notes of this series are
exchangeable for a like aggregate principal amount of Notes of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
SECTION 11. Registration of Transfer. As provided in the
Indenture and subject to certain limitations therein set forth and to the
limitations described below, if applicable, the transfer of this Note is
registerable in the Security Register upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar (which shall initially
be the Trustee, 101 Barclay Street, 21st Floor, New York, New York
<PAGE>
(Attention: Corporate Trust Trustee Administration) or at such other address
as it may designate as its principal corporate trust office in The City of
New York) duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Notes of this series and of like
tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
If this Note is a global Note (as specified on the face
hereof), this Note is exchangeable only if (x) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for this
global Note or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (y) the
Company in its sole discretion determines that this Note shall be
exchangeable for certificated Notes in registered form or (z) an Event of
Default, or an event which with the passage of time or the giving of notice
would become an Event of Default, with respect to the Notes represented
hereby has occurred and is continuing, provided that the definitive Notes so
issued in exchange for this permanent global Notes shall be in denominations
of $1,000 and any integral multiple of $1,000 in excess thereof and be of
like aggregate principal amount and tenor as the portion of this permanent
global Note to be exchanged, and provided further that, unless the Company
agrees otherwise, Notes of this series in certificated registered form will
be issued in exchange for this permanent global Note, or any portion hereof,
only if such Notes in certificated registered form were requested by written
notice to the Trustee or the Security Registrar by or on behalf of a person
who is beneficial owner of an interest hereof given through the Holder
hereof. Except as provided above, owners of beneficial interests in this
permanent global Note will not be entitled to receive physical delivery of
Notes in certificated registered form and will not be considered the Holders
thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
SECTION 12. Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Company, the Trustee or any such agent shall be
affected by notice to the contrary.
SECTION 13. Governing Law. The Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State
of New York, without regard to principles of conflicts of laws.
SECTION 14. Defined Terms. All terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them
in the Indenture; and all references in the Indenture to "Security" or
"Securities" shall be deemed to include the Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or portion hereof
below designated at (i) the applicable Optional Repayment Price indicated on
the face hereof, together with interest accrued and unpaid thereon to the
date of repayment, if this Note is to be repaid pursuant to Section 4 of this
Note. Specify the denomination or denominations (which shall be $1,000 or an
integral multiple of $1,000 in excess thereof) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in
the absence of any specification, one such Note will be issued for the
portion not being repaid):
_____________________________
Dated:_______________________ ________________________________
Signature
Sign exactly as name appears on the
front of this Note.
Principal amount to be repaid Indicate address where check is to
if amount to be repaid is less be sent, if repaid:
than the entire principal
amount of this Note (principal ________________________________
amount remaining must be an
authorized denomination) ________________________________
$____________________________
(which shall be an integral SOCIAL SECURITY OR OTHER TAXPAYER ID
multiple of $1,000 or, if no NUMBER
such reference is made, an
amount equal to the minimum ________________________________
Authorized Denomination).
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as through 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 POSTAL ZIP CODE OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing ________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _________________ Signature________________________________
Sign exactly as name appears on the front
of this Note
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
