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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 1, 1996
INTERNATIONAL MULTIFOODS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-6699 41-0871880
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
33 South 6th Street, Minneapolis, Minnesota 55402
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 340-3300
Not applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On February 1, 1996, International Multifoods Corporation (the "Company")
entered into a Distribution Agreement dated February 1, 1996 between the Company
and Lehman Brothers, Lehman Brothers Inc., BA Securities, Inc., BT Securities
Corporation, First Chicago Capital Markets, Inc. and J.P. Morgan Securities Inc.
pursuant to which the Company may offer from time to time its Medium-Term Notes,
Series B (the "Notes") at an aggregate initial offering price not to exceed
$150,000,000.
The Notes are the subject of a Registration Statement on Form S-3 (File No.
33-65221) filed by the Company with the Securities and Exchange Commission (the
"Registration Statement").
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits to the Registration Statement are filed
herewith:
1.1 Distribution Agreement dated February 1, 1996 between the
Company and Lehman Brothers, Lehman Brothers Inc., BA Securities,
Inc., BT Securities Corporation, First Chicago Capital Markets,
Inc. and J.P. Morgan Securities Inc., including the form of
Purchase Agreement, relating to the Notes.
4.1 Officers' Certificate and Authentication Order dated
February 1, 1996 relating to the Notes, including the forms of
Notes.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERNATIONAL MULTIFOODS CORPORATION
Date: February 1, 1996 By /s/ Duncan H. Cocroft
--------------------------------
Duncan H. Cocroft
Vice President - Finance,
Chief Financial Officer and Treasurer
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EXHIBIT INDEX
1.1 Distribution Agreement dated February 1, 1996 between the Company and
Lehman Brothers, Lehman Brothers Inc., BA Securities, Inc., BT Securities
Corporation, First Chicago Capital Markets, Inc. and J.P. Morgan Securities
Inc., including the form of Purchase Agreement, relating to the Notes.
4.1 Officers' Certificate and Authentication Order dated February 1, 1996
relating to the Notes, including the forms of Notes.
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U.S. $150,000,000
INTERNATIONAL MULTIFOODS CORPORATION
Medium-Term Notes, Series B
DISTRIBUTION AGREEMENT
February 1, 1996
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
BA Securities, Inc.
231 South LaSalle Street, 17th Floor
Chicago, Illinois 60697
BT Securities Corporation
130 Liberty Street
33rd Floor
New York, New York 10006
First Chicago Capital Markets, Inc.
One First National Plaza
Chicago, Illinois 60670-0324
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
International Multifoods Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time its Medium-Term Notes,
Series B (the "Securities") in an aggregate offering price of up to U.S.
$150,000,000, or its equivalent based on the applicable exchange rate in foreign
currencies or currency composites or currency units, and agrees with Lehman
Brothers, Lehman Brothers Inc., BA Securities, Inc., BT Securities Corporation,
First Chicago Capital Markets, Inc. and J.P. Morgan Securities Inc. (each
individually an "Agent," and collectively, the "Agents") as set forth in this
Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a
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separate agreement in the form attached hereto as Annex I or such other form as
provided herein (each a "Purchase Agreement"), relating to such sale in
accordance with Section 2(b) hereof.
The Securities will be issued under an Indenture dated as of January
1, 1990, as supplemented by the First Supplemental Indenture dated as of May 29,
1992 (as it may be further supplemented or amended from time to time, the
"Indenture"), between the Company and First Trust of New York, National
Association (successor to Morgan Guaranty Trust Company of New York), as Trustee
(the "Trustee"). The Securities shall have the maturity ranges, applicable
interest rates or interest rate formulas, if any, redemption and repayment
provisions, specified currency, issue price and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-3 in respect of the
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to such Agent
(excluding exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus included therein) has been declared
effective by the Commission in such form; and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the registration statement,
including all exhibits thereto (but excluding Form T-1) and the documents
incorporated by reference in the prospectus contained in the registration
statement, when it became effective under the Act, and as amended or
supplemented from time to time, being hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, and as amended or supplemented from time to
time, being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the Prospectus
as amended or supplemented (including by the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in relation to Securities sold pursuant
to this Agreement, in the form filed, or transmitted for filing, with the
Commission pursuant to Rule 424(b) under the Act and in accordance with Section
4(a) hereof, including any documents incorporated by reference therein as of the
date of such filing);
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(b) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations thereunder,
and none of such documents contained 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; and any further documents so filed
and incorporated by reference in the Prospectus, or any further amendment or
supplement thereto, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus as amended or supple-
mented to relate to a particular issuance of Securities; the Indenture has been
duly qualified under the Trust Indenture Act; the Indenture, including any
supplements and amendments thereto, conforms with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any decrease in
the consolidated capital stock of the Company in excess of $5,000,000 or any
increase in the consolidated long-term debt of the Company in excess of
$30,000,000 or any material adverse change in or affecting the general affairs,
management, business, properties or financial position of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus;
(e) This Agreement has been, and each Purchase Agreement when
executed and delivered pursuant to this Agreement will be, duly executed and
delivered by the Company;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has the power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(g) The authorized capital stock of the Company is as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
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(h) When the terms of the Securities have been established in
accordance with the Indenture, and the Securities are issued and delivered
pursuant to this Agreement and any Purchase Agreement, the Securities will have
been duly authorized, executed, authenticated and delivered, will be validly
issued and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture and enforceable in accordance
with their terms and the terms of the Indenture (subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles),
which will be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented to relate to such
issuance of Securities;
(i) The Company is not in violation of its corporate charter or
bylaws; the issue and sale of the Securities, the compliance by the Company with
all of the provisions of the Securities, the Indenture, this Agreement and any
Purchase Agreement, the execution and delivery of the Securities, the Indenture,
this Agreement and any Purchase Agreement and the consummation of the
transactions herein and therein contemplated have been duly authorized by all
necessary corporate action and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument 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 is subject, nor will such
action result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the Bylaws of the Company (or the charter or
bylaws of any of its subsidiaries) or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties, except for any such conflicts, breaches,
violations or defaults which, individually or in the aggregate, would not be
material to the Company and its subsidiaries, taken as whole; and no consent,
approval, authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the solicitation of offers
to purchase Securities, the issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated by this Agreement, any
Purchase Agreement or the Indenture, except such as have been, or will have been
prior to the Closing Date (as defined in Section 3 hereof), obtained under the
Act or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under any securities or Blue
Sky laws of any state or foreign jurisdiction in connection with the
solicitation by such Agent of offers to purchase Securities from the Company and
with purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(j) Other than as set forth or contemplated in the Prospectus,
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 subject which, individually or in the aggregate,
would reasonably be expected to have a material adverse effect on the business,
properties or consolidated financial position of the Company and its
subsidiaries, taken as a whole, or which is required to be disclosed in the
Registration Statement and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(k) Immediately after any sale of Securities by the Company
hereunder or under any Purchase Agreement, the aggregate amount of Securities
which shall have been issued and sold by
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the Company hereunder or under any Purchase Agreement and of any debt securities
of the Company (other than such Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount of debt
securities registered under the Registration Statement;
(l) The audited financial statements of the Company included or
incorporated by reference in each Prospectus present fairly the consolidated
financial position, results of operations and cash flows of the entities
purported to be shown thereby in conformity with generally accepted accounting
principles, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the period or periods involved, except as otherwise
set forth therein; the supporting consolidated financial statement schedule or
schedules, if any, included or incorporated by reference in each Prospectus,
when considered in relation to the basic consolidated financial statements taken
as a whole, present fairly, in all material respects, the information set forth
therein; and the unaudited financial statements of the Company, if any, and the
related notes, contained in any Form 10-Q of the Company and included or
incorporated by reference in each Prospectus present fairly the consolidated
financial position, results of operations and cash flows of the Company at the
dates and for the periods indicated in conformity with generally accepted
accounting principles (except that the unaudited financial statements are
condensed and therefore do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements) applied on a consistent basis throughout the periods shown, except
as otherwise set forth therein and subject to changes resulting from year-end
audit adjustments, and prepared in accordance with the instructions to Form 10-
Q;
(m) To the best knowledge of the Company, KPMG Peat Marwick LLP,
whose report appears in the Company's most recent Annual Report on Form 10-K,
which is incorporated by reference in each Prospectus, are independent public
accountants with respect to the Company as required by the Act and the rules and
regulations thereunder; and
(n) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the rules
and regulations promulgated thereunder, or which are required to be filed as
exhibits to any document incorporated by reference in any Prospectus by the
Exchange Act or the rules and regulations promulgated thereunder, which have not
been filed as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the rules and regulations
promulgated thereunder.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein set forth, each of the Agents hereby
agrees to use its reasonable efforts to solicit and receive offers to purchase
the Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time.
The Company agrees to pay the applicable Agent a commission, at the
time of settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent or an offer to purchase received by such Agent,
in an amount equal to the following applicable percentage of the principal
amount of such Security sold:
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Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.675%
20 years to 30 years 0.750%
The commission payable by the Company to the Agents with respect to
Securities with maturities greater than 30 years will be negotiated at the time
the Company issues such Securities. Procedural details relating to the issue
and delivery of Securities, the solicitation of offers to purchase Securities
and the payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II (except as provided
otherwise herein) as it may be amended from time to time by written agreement
between the Agents and the Company (the "Administrative Procedure"). The
provisions of the Administrative Procedure shall apply to all transactions
contemplated hereunder including those made pursuant to a Purchase Agreement,
unless otherwise set forth in such Purchase Agreement. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
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 the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed. During such period, the
Company shall not be required to comply with the provisions of Sections 4(i),
4(j) and 4(k), except as otherwise provided in Section 10. Promptly upon
advising the Agents that such solicitation may be resumed, however, the Company
shall provide the documents required to be delivered by Sections 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the Agents.
The Company reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own behalf, and, in the case of
any such sale not resulting from a solicitation made by any Agent, no commission
will be payable with respect to such sale. These provisions shall not limit
Section 4(f) hereof or any similar provision included in any Purchase Agreement.
The Company reserves the right to offer Securities for sale otherwise
than to or through an Agent; PROVIDED, HOWEVER, that so long as this Agreement
is in effect the Company will not appoint
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any other agent for the purpose of soliciting purchases of the Securities on a
continuous basis. It is understood, however, that if from time to time the
Company is approached by a prospective agent offering to solicit a specific
purchase of Securities, the Company may engage such agent with respect to such
specific purchase, provided that the Agents are given notice of such purchase
promptly, including the terms thereof and a copy of any agreement setting forth
the terms of engagement of such agent by the Company, in each case after the
purchase is agreed to.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the Company and
such Agent shall otherwise agree) a Purchase Agreement which will provide for
the sale of such Securities to, and the purchase thereof by, such Agent. A
Purchase Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent. The commitment of any Agent to
purchase Securities as principal, whether pursuant to any Purchase Agreement or
otherwise, shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Purchase Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Company for such Securities, any provisions relating
to rights of, and default by, underwriters acting together with such Agent in
the reoffering of the Securities and the time and date and place of delivery of
and payment for such Securities. Such Purchase Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Purchase Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as set forth in
the Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Purchase Agreement, the Company agrees
to pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Purchase Agreement or
in accordance with the Administrative Procedure, is referred to herein as a
"Time of Delivery."
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Purchase Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency (or if such Security
is denominated in a composite currency, in any country issuing a currency
comprising a portion of such composite currency), except as permitted by
applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Closing Date (as defined below) shall be delivered at the offices
of Skadden, Arps, Slate, Meagher & Flom, at 10:00 a.m., Chicago time, on the
date of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Purchase Agreement is executed (such time and date
being referred to herein as the "Closing Date").
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4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Closing Date which shall be
reasonably disapproved by any Agent promptly after reasonable notice thereof or
(B) after the date of any Purchase Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of Delivery which
shall be reasonably disapproved by any Agent party to such Purchase Agreement or
so purchasing as principal promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such Securities
in a form previously approved by such Agent and to file such Pricing Supplement
pursuant to Rule 424 under the Act within the applicable time period specified
by Rule 424; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus (other than any Pricing Supplement, any supplement
relating to an offering of securities other than the Securities, or any periodic
report filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus) at any time prior to having afforded each Agent a reasonable
opportunity to review and comment thereon; (iv) to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such same
period to advise such Agent, promptly after the Company receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
has become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to Securities not
purchased through or by such Agent) has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; and (v)
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; PROVIDED, HOWEVER, that in connection therewith 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;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto in the form filed with the Commission, with
copies of the Prospectus as each time amended or supplemented, other than any
Pricing Supplement (except as provided in the Administrative Procedure), in the
form in which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference therein, all in
such quantities as such Agent may reasonably request from time to time; and, if
the delivery of a Prospectus is required at any time in connection with the
offering or sale of the Securities (including Securities purchased from the
Company by such Agent as principal) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus
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or to file under the Exchange Act any document to be incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify such Agent and request such Agent, in its capacity as
agent of the Company, to suspend solicitation of offers to purchase Securities
from the Company (and, if so notified, such Agent shall cease such solicitations
as soon as practicable, but in any event not later than one business day later);
and if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus as then amended or supplemented, to so advise such
Agent promptly by telephone (with confirmation in writing) and promptly to
prepare and cause to be filed with the Commission an amendment or supplement to
the Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance;
PROVIDED, HOWEVER, that if during such same period such Agent continues to own
Securities purchased from the Company by such Agent as principal or such Agent
is otherwise required to deliver a Prospectus in respect of transactions in the
Securities, the Company shall promptly prepare and file with the Commission such
an amendment or supplement;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period this Agreement is in effect with respect
to any Agent, to furnish to such Agent copies of all reports or other
communications (financial or other) furnished to stockholders, and deliver to
such Agent (i) as soon as they are available, copies of any reports and
financial statements filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as such Agent may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(f) That, from the date of any Purchase Agreement with such
Agent or other agreement by such Agent to purchase Securities as principal and
continuing to and including the earlier of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the Company
by such Agent and (ii) the related Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities, without the prior written consent of
such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Purchase Agreement), and each execution and delivery by the
Company of a Purchase Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and correct as of the
date of such acceptance or of such Purchase Agreement, as the case may be, as
though made at and as of such date, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating
to such Securities);
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(h) That each time the Company sells Securities to such Agent as
principal pursuant to a Purchase Agreement and such Purchase Agreement specifies
the delivery of an opinion or opinions by Skadden, Arps, Slate, Meagher & Flom,
counsel to the Agents, as a condition to the purchase of Securities pursuant to
such Purchase Agreement, the Company shall furnish to such counsel such
documents and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in Section 6(b)
hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each time
a document is incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal pursuant to a Purchase
Agreement and such Purchase Agreement specifies the delivery of an opinion under
this Section 4(i) as a condition to the purchase of Securities pursuant to such
Purchase Agreement, the Company shall furnish or cause to be furnished forthwith
to such Agent a written opinion of Frank W. Bonvino, Vice President and General
Counsel of the Company, or other counsel for the Company satisfactory to such
Agent, dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form satisfactory to such
Agent, to the effect that such Agent may rely on the opinion of such counsel
referred to in Section 6(c) hereof which was last furnished to such Agent to the
same extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement) and each
time that a document is incorporated by reference into the Prospectus, in either
case to set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records, and each time
the Company sells Securities to such Agent as principal pursuant to a Purchase
Agreement and such Purchase Agreement specifies the delivery of a letter under
this Section 4(j) as a condition to the purchase of Securities pursuant to such
Purchase Agreement, the Company shall cause the independent certified public
accountants who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as the case
may be, in form satisfactory to such Agent, of the same tenor as the letter
referred to in Section 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date of such
letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of
such letter; PROVIDED, HOWEVER, that, with respect to any financial information
or other matter, such letter may reconfirm as true and correct at such date as
though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each time
a document is incorporated by reference into the Prospectus, and each time the
Company sells Securities to such Agent as principal pursuant to a Purchase
Agreement and the applicable Purchase Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Purchase Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of
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such supplement, amendment, incorporation or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officer of the
Company as shall be satisfactory to such Agent, to the effect that the
statements contained in the certificate referred to in Section 6(g) hereof which
was last furnished to such Agent are true and correct at such date as though
made at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in Section 6(g) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Administrative Procedure, any condition set forth in
Section 6(a), 6(e) or 6(f) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the impracticability
or inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent with
respect to certain matters referred to in such Sections 6(a), 6(e) and 6(f), and
that such Agent shall have no duty or obligation whatsoever to exercise the
judgment permitted under such Sections 6(a), 6(e) and 6(f) on behalf of any such
person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the reasonable fees,
disbursements and expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby and any opinions to be rendered
by such counsel hereunder and under any Purchase Agreement (up to a maximum of
$60,000, to be described in a reasonably detailed statement); (iii) the cost of
printing, producing or reproducing this Agreement, any Purchase Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Company in
connection with such qualification and in connection with the Blue Sky and legal
investments surveys; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of counsel for any Trustee
or such agent in connection with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
in advance in writing by the Company; (x) the costs and fees in connection with
any listing of the Securities on any securities exchange; and (xi) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. Except as
provided in Sections 7 and 8 hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Purchase Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the
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Company herein (and, in the case of an obligation of an Agent under a Purchase
Agreement, in or incorporated in such Purchase Agreement by reference) are true
and correct at and as of the Closing Date and any applicable date referred to in
Section 4(k) hereof that is prior to such Solicitation Time or Time of Delivery,
as the case may be, and at and as of such Solicitation Time or Time of Delivery,
as the case may be, the condition that prior to such Solicitation Time or Time
of Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent;
(b) Skadden, Arps, Slate, Meagher & Flom, counsel to the Agents,
shall have furnished to such Agent (i) such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Prospectus and other related matters
as such Agent may reasonably request, and (ii) if and to the extent requested by
such Agent, with respect to each applicable date referred to in Section 4(h)
hereof that is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, an opinion or opinions, dated such applicable date, to the effect
that such Agent may rely on the opinion or opinions which were last furnished to
such Agent pursuant to this Section 6(b) to the same extent as though it or they
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion or opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in clause (i)
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel shall have
received from the Company such documents and information as they may reasonably
request to enable them to pass upon such matters;
(c) Frank W. Bonvino, Vice President and General Counsel of the
Company, or other counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent his written opinion, dated the Closing Date and each
applicable date referred to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation and has the power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) The authorized capital stock of the Company is
as set forth in the Prospectus as amended or supplemented;
(iii) To the best of such counsel's knowledge and other
than as set forth or contemplated in the Prospectus, there are no legal or
governmental proceed-
12
<PAGE>
ings 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 which, individually or in the aggregate, would reasonably be
expected to have a material adverse effect on the consolidated financial
position of the Company and its subsidiaries, taken as a whole, or which is
required to be disclosed in the Registration Statement and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) The Company has the corporate power and authority to
execute and deliver this Agreement and any Purchase Agreement and to
perform its obligations hereunder and thereunder; and this Agreement and
any applicable Purchase Agreement have been duly authorized, executed and
delivered by the Company;
(v) Assuming that at the time of the issuance, sale and
delivery of each particular Security there will not have occurred any
change in law affecting the validity, legally binding character or enforce-
ability of such Security, that the terms of the Securities have been
established in accordance with the Indenture and that the Securities are
issued and delivered by the Company in accordance with this Agreement and
any Purchase Agreement, the Securities will have been duly authorized,
executed and delivered by the Company and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture and enforceable in accordance with their terms and the terms of
the Indenture (subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles); and the
Indenture conforms and the Securities will conform, in all material re-
spects, to the descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other 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;
(vii) The issue and sale of the Securities, the compliance
by the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Purchase Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel 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 is subject, nor will such action
result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, of the Company or the Bylaws of the Company or,
to such counsel's knowledge, any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required for the
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<PAGE>
solicitation of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any applicable Purchase Agreement, or the
Indenture, except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under any securities or Blue Sky laws
of any state or foreign jurisdiction in connection with the solicitation by
the Agents of offers to purchase Securities from the Company and with
purchases of Securities by an Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(ix) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules or
other financial data therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading;
(x) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and supplements thereto
made by the Company prior to the date of such opinion (other than the
financial statements and related schedules or other financial data therein,
as to which such counsel 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; such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment or supplement thereto made by the Company prior to the
date of such opinion (other than the financial statements and related
schedules or other financial data therein, as to which such counsel need
express no opinion) contained 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 date of
such opinion, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the date of
such opinion (other than the financial statements and related schedules or
other financial data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and such counsel
does not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be incor-
porated by reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by reference or
described as required; and
(xi) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission;
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<PAGE>
(d) The independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have furnished
to such Agent a letter, dated the Closing Date and each applicable date referred
to in Section 4(j) hereof that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be, in form and substance satisfactory to such
Agent;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or supplemented,
(ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have been any decrease in
the consolidated capital stock of the Company in excess of $5,000,000 or any
increase in consolidated long-term debt of the Company in excess of $30,000,000,
the effect of which, in any such case described in clause (i) or clause (ii),
is, in the judgment of such Agent, so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such Agent of
offers to purchase Securities from the Company or the purchase by such Agent of
Securities from the Company as principal, as the case may be, on the terms and
in the manner contemplated in the Prospectus as amended or supplemented, or
(iii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have been any material
adverse change in or affecting the general affairs, management, financial
position, business, properties, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or on the Nasdaq National
Market; (ii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; (iii) the outbreak or
escalation of hostilities or the declaration by the United States of a national
emergency or war or any other substantial calamity or emergency; (iv) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act; (v) any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities; or (vi) any material adverse change in the existing financial,
political or economic conditions in the United States, including any effect of
international conditions on the financial markets in the United States, that, in
any such case described in clause (iii) or clause (vi), in the judgment of such
Agent makes it impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities or the purchase of Securities from the Company as
principal pursuant to the applicable Purchase Agreement or otherwise, as the
case may be; and
(g) The Company shall have furnished or caused to be furnished
to such Agent certificates of an officer of the Company dated the Closing Date
and each applicable date referred to in Section 4(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such form
and executed by such officers of the Company as shall be satisfactory to such
Agent, as to the accuracy of the representations and warranties of the Company
herein at and as of the Closing Date or such applicable date, as the case may
be, as to the performance by the Company in all material respects of all of
its obligations hereunder to be performed at or prior to the Closing Date or
such
15
<PAGE>
applicable date, as the case may be, as to the matters set forth in subsections
(a) and (e) of this Section 6, and as to such other matters as such Agent may
reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent from
and against any losses, claims, damages or liabilities, joint or several, and
any action in respect thereof, to which such Agent may become subject, under the
Act, the Exchange 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, the Registration Statement, the Prospectus, the Prospec-
tus as amended or supplemented or any other prospectus relating to the
Securities, 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,
and will reimburse such Agent for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon an untrue or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company from
and against any losses, claims, damages or liabilities, and any action in
respect thereof, to which the Company may become subject, under the Act, the
Exchange 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, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, 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 that extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such 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 loss, claim, damage, liability or action as such expenses are
incurred.
(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 claim or the commencement of that action; 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 claim or action shall be brought against any indemnified party and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such
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<PAGE>
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that such indemnified party shall have the right to employ a single
separate counsel if the indemnified party reasonably determines that there may
be a conflict between the positions of the indemnifying party and of the
indemnified party in conducting the defense of such action or that there may be
legal defenses available to such indemnified party different from or in addition
to those available to the indemnifying party, and in that event the fees and
expenses of such counsel shall be paid by the Company. In no event shall the
indemnifying party be liable for the fees and expenses of more than one separate
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent shall
not be unreasonably withheld, delayed or conditioned), effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is a party; PROVIDED, HOWEVER, that no consent shall be required if such
settlement includes an unconditional release of such indemnified party from all
liabilities or claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7 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 each Agent on the
other from the offering of the Securities 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 each Agent 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 each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. 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 required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent 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 Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in 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), an Agent shall not be required to contribute
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through it were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person
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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. The obligations of each of the Agents under
this subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 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 Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent 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.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Purchase
Agreement or otherwise), is acting individually and not jointly and solely as
agent for the Company and not as principal. Each Agent will make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was solicited by such Agent and
has been accepted by the Company, but such Agent shall not have any liability to
the Company in the event such purchase is not consummated for any reason. If
the Company shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be entitled in connection
with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (ii) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously
accrued, (iii) if at the time of such suspension or termination, an offer for
the purchase of Securities shall have been accepted by the Company but the
delivery of Securities relating thereto to the purchaser or his agent shall not
yet have occurred or the proviso in Section 4(c) applies, this Agreement shall
remain in full force and effect with respect to the obligations set forth in
subsection (c), (e), (f), (h), (i), (j) and (k) of Section 4 and (iv) in any
event, this Agreement shall remain in full force and effect insofar as the
second paragraph of Section 2(a), Section 4(d), Section 5, Section 7, Section 8
and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly
18
<PAGE>
confirmed in writing, and if to Lehman Brothers Inc. shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to:
Lehman Brothers, World Financial Center, New York, New York 10285, Telephone No.
(212) 526-2040, Facsimile Transmission No. (212) 528-1718, Attention: Medium
Term Note Department; if to BA Securities, Inc. shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to:
BA Securities, Inc., 231 South LaSalle Street, 17th Floor, Chicago, Illinois
60697, Facsimile Transmission No. (312) 974-0141, Attention: Andrew McCarthy;
if to BT Securities Corporation shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to BT Securities
Corporation, 130 Liberty Street, 37th Floor, New York, New York 10006, Facsimile
Transmission No. (212) 250-5426, Attention: Kate Keator; if to First Chicago
Capital Markets, Inc. shall be sufficient in all respects when delivered or sent
by facsimile or registered mail to First Chicago Capital Markets, Inc., One
First National Plaza, Mail Suite 0107, Chicago, Illinois 60670, Facsimile
Transmission No. (312) 732-4172, Attention: Credit Officer; if to J.P. Morgan
Securities Inc., shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to: J.P. Morgan Securities Inc., 60
Wall Street, New York, New York 10260, Facsimile Transmission No. (212) 648-
5909, Attention: Medium Term Note Desk; and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to: International Multifoods Corporation, 33 South 6th Street,
Minneapolis, Minnesota 55402, Facsimile Transmission No. (612) 340-6502,
Attention: Frank W. Bonvino.
12. If at any time the Company and any of the Agents shall determine
to issue and sell securities denominated in a currency or currency unit other
than U.S. Dollars, which other currency may include a composite currency, or
with respect to which an index is used to determine the amounts of payments of
principal and any premium or interest, the Company and any such Agent shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Annex III.
Such amendment shall establish, as appropriate additions and modifications that
shall apply to the sales, whether offered on an agency or principal basis, of
the Securities covered thereby. The Agents are authorized to solicit offers to
purchase Securities with respect to which an index is used to determine the
amounts of payments of principal and any premium and interest, and the Company
shall agree to any sales of such Securities (whether offered on an agency or
principal basis), only in a minimum aggregate amount of $2,500,000.
13. This Agreement and any Purchase Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Purchase Agreement. No purchaser of any of the Securities
through or from any Agent hereunder shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence in this Agreement and any Purchase
Agreement. As used herein, the term "business day" shall mean any day which is
not a Saturday or Sunday and which is not a day on which (i) banking
institutions are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed for trading.
15. This Agreement and any Purchase Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
19
<PAGE>
16. This Agreement and any Purchase Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
20
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and each of you in accordance with its terms.
Very truly yours,
International Multifoods Corporation
By:
------------------------------------
Name:
Title:
Confirmed and accepted in New York,
New York, as of the date first written
above:
Lehman Brothers Inc.
By:
--------------------------
Authorized Signatory
BA Securities, Inc.
By:
--------------------------
Authorized Signatory
BT Securities Corporation
By:
--------------------------
Authorized Signatory
First Chicago Capital Markets, Inc.
By:
--------------------------
Authorized Signatory
J.P. Morgan Securities Inc.
By:
--------------------------
Authorized Signatory
<PAGE>
ANNEX I
PURCHASE AGREEMENT
[DATE]
International Multifoods Corporation
33 South 6th Street
Minneapolis, Minnesota 55402
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of the
Securities described in the Distribution Agreement dated February 1, 1996 (as it
may be supplemented or amended from time to time, the "Distribution Agreement"):
PRINCIPAL AMOUNT: $ __________
SPECIFIED CURRENCY:
DENOMINATED AND INDEXED CURRENCIES:
INTEREST RATE: ____%
DISCOUNT: _____% of Principal Amount
AGGREGATE PRICE TO BE PAID TO COMPANY
(IN IMMEDIATELY AVAILABLE FUNDS): $ __________
SETTLEMENT DATE:
OTHER TERMS:
Terms defined in the Prospectus relating to the Securities and in the
Distribution Agreement shall have the same meaning when used herein.
In the case of Securities issued in a Specified Currency other than U.S.
dollars, payments of principal of (and premium, if any) and interest on all
Securities will be made in the applicable Specified Currency, PROVIDED, HOWEVER,
that payments of principal of (and premium, if any) and interest on Securities
denominated in other than U.S. dollars will nevertheless be made in U.S. dollars
(i) at the option of the Holders thereof, (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances beyond the
control of the Company as described below or (iii) if so specified in the
applicable Pricing Supplement.
The U.S. dollar amount to be received by a Holder of a Security denominated
in other than U.S. dollars who elects to receive payments in U.S. dollars will
be based on the highest indicated bid quotation for the purchase of U.S. dollars
in exchange for the Specified Currency obtained by the Currency Determination
Agent at approximately 11 a.m. New York City time on the second Business Day
next
<PAGE>
preceding the applicable payment date from the bank composite or
multicontributor pages of the Quoting Source for three (or two if three are not
available) major banks in The City of New York. If two such bid quotations are
not available at 11:00 a.m., New York City time, on the second Business Day
preceding the date of payment of principal (and premium, if any) or interest
with respect to any such Security, such payment will be based on the Market
Exchange Rate as of the second Business Day next preceding the applicable
payment date. If the Market Exchange Rate for such date is not then available,
such payment will be made in the Specified Currency. All currency exchange
costs associated with any payment in U.S. dollars on any such Security will be
borne by the Holder thereof by deductions from such payment.
Our obligation to purchase Securities hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance in all material respects of all
applicable covenants and agreements contained therein, including, without
limitation, your obligations pursuant to Section 7 thereof. Our obligation
hereunder is subject to further condition that we shall receive (a) the opinions
required to be delivered pursuant to Sections 6(b) and 6(c) of the Distribution
Agreement, (b) the certificate required to be delivered pursuant to Section 6(g)
of the Distribution Agreement, (c) the letter referred to in Section 6(d) of the
Distribution Agreement, in each case dated as of the Settlement Date and (d)
[insert other conditions as appropriate].
In further consideration of our agreement hereunder, you agree that between
the date hereof and the above Settlement Date, you will not offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which both mature more than 9 months after such time of delivery and are
substantially similar to the Securities without our prior written consent.
We may terminate this Agreement, immediately upon notice to you, at any
time prior to the Settlement Date, if prior thereto there shall have occurred:
(i) any material adverse change in or affecting the general affairs, management,
business, properties or financial position of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented to the date hereof; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market; (iii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; (iv) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act; (v) any such organization publicly announcing that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities; (vi) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national calamity or emergency; or
(vii) any material adverse change in the existing financial, political or
economic conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that, in any such case
described in clause (vi) or clause (vii), in the judgment of such Agent makes it
impracticable or inadvisable to proceed with the purchase of securities from the
Company as principal pursuant to this Agreement or you are unable to provide any
of the opinions, certificates or letters referred to in the second preceding
paragraph. In the event of such termination, no party shall have any liability
to the other party hereto, except as provided in Sections 5, 7 and 13 of the
Distribution Agreement.
I-2
<PAGE>
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[INSERT NAME[S] OF AGENT[S]]
By:
-----------------------------------
[Title]
ACCEPTED: , 19
---
INTERNATIONAL MULTIFOODS CORPORATION
By:
--------------------------------
[Authorized Signatory]
I-3
<PAGE>
ANNEX II
INTERNATIONAL MULTIFOODS CORPORATION
MEDIUM-TERM NOTES, SERIES B
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated February 1, 1996 (the "Distribution Agreement"),
between International Multifoods Corporation (the "Company") and Lehman
Brothers, Lehman Brothers Inc., BA Securities, Inc., BT Securities Corporation,
First Chicago Capital Markets, Inc. and J.P. Morgan Securities Inc. (together,
the "Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture as amended or supplemented. To the extent any
procedure set forth below conflicts with the provisions of the Securities, the
Indenture or the Distribution Agreement, the relevant provisions of the
Securities, the Indenture or the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Purchase Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Purchase Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons from the
Company with whom such Agent is to communicate regarding offers to purchase
Securities and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global certificate (a "Global Security") delivered to
the Trustee, as custodian for The Depository Trust Company (the "Depositary")
and recorded in the book-entry system maintained by the Depositary (a
"Book-Entry Security") or a certificate (a "Certificated Security") delivered to
a person designated by an Agent as set forth in the applicable Pricing
Supplement. An owner of a Book-Entry Security will not be entitled to receive a
certificate representing such a Security, except as provided in the Indenture or
the Prospectus as amended or supplemented.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
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 the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of January 31, 1991 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
POSTING RATES BY THE COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY THE COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO THE COMPANY BY AGENT AND SETTLEMENT
PROCEDURES:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate, initial
interest payment date, Interest Payment Dates and Regular Record
Dates;
(3) Trade Date;
(4) Settlement Date;
II-2
<PAGE>
(5) Stated Maturity;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable exchange rate for such Specified
Currency (it being understood that currently the Depositary
accepts deposits of Global Securities denominated in U.S. dollars
only) and the Exchange Rate Agent;
(7) Selected Currencies, the Base Exchange Rate and the Determination
Agent, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Percentage (% of par), and
(iii) Annual Redemption Percentage Reduction;
(12) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
II-3
<PAGE>
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by facsimile transmission or other
acceptable written means. The Trustee will assign a CUSIP number to the
Global Security from a list of CUSIP numbers previously obtained by the
Company representing such Book-Entry Security and then the Company will
advise the Selling Agent or Purchasing Agent, as the case may be, of such
CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following
settlement information to the Depositary, and the Depositary shall forward
such information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (or, in the case of Floating Rate
Securities which reset daily or weekly, the date five calendar
days immediately preceding the applicable Interest Payment Date
and, in the case of all other Book-Entry Securities, the Regular
Record Date, as defined in the Security) and, if calculable at
that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and
credit such Book-Entry Security to such Agent's participant account and
(ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal
II-4
<PAGE>
to the price of such Book-Entry Security less such Agent's commission. The
entry of such a deliver order shall constitute a representation and
warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and
(b) the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and
credit such Book-Entry Security to the participant accounts of the
Participants with respect to such Book-Entry Security and (ii) to debit the
settlement accounts of such Participants and credit the settlement account
of such Agent for an amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer
to the account of the Company maintained at First Bank National
Association, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the
amount transferred to the Trustee in accordance with Settlement Procedure
"F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as
of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the Participants for whom the Depositary has
credited Book-Entry Securities.
II-5
<PAGE>
PREPARATION OF PRICING SUPPLEMENT:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies (or one copy if sent by facsimile) of such
Pricing Supplement, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date (as defined below), or if the Company and
the purchaser agree to settlement on the Business Day following the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will file, or arrange to have filed, the Pricing Supplement with the
Commission not later than the close of business of the Commission on the fifth
Business Day following the date on which such Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
DATE OF SETTLEMENT:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another Business Day which shall be no earlier
than the next Business Day after the Trade Date.
SETTLEMENT PROCEDURE TIMETABLE:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
II-6
<PAGE>
SETTLEMENT
PROCEDURE TIME
- --------- ----
A 11:00 a.m. on the Business Day following the Trade Date
B 1:00 p.m. on the Business Day following the Trade Date
C 2:00 p.m. on the second Business Day immediately preceding
the Settlement Date
D 3:00 p.m. on the Business Day immediately preceding
Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If a sale is to be settled one Business Day after the Trade Date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but no later than 11:00 a.m., 1:00 p.m. and 2:00 p.m. on the Trade Date. If the
initial interest rate for a Floating Rate Book-Entry Security 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 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date. Settlement Procedure "H" is subject to extension
in accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately preceding
the scheduled Settlement Date.
FAILURE TO SETTLE:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security 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 Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but
II-7
<PAGE>
not all, of the Book-Entry Securities represented by a Global Security, the
Trustee will exchange such Global Security for two Global Securities, one of
which shall represent such Book-Entry Security or Securities and shall be
canceled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities 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 Security is not timely paid to the
Participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such Participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such Participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) 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 solely as a result of a default by the
applicable Agent to perform its obligations in all material respects hereunder
or under the Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary 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 Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
POSTING RATES BY COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
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<PAGE>
Each Agent also may make offers to the Company to purchase Certificated Securi-
ties as a Purchasing Agent. The Company will have the sole right to accept
offers to purchase Certificated Securities and may reject any such offer in
whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO COMPANY BY AGENT:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate, initial
interest payment date, Interest Payment Dates and Regular Record
Dates;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable exchange rate for such Specified
Currency and the Exchange Rate Agent;
(7) Selected Currencies, the Base Exchange Rate and the Determination
Agent, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following as
are applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Percentage (% of par), and
(iii) Annual Redemption Percentage Reduction;
(12) If a Floating Rate Certificated Security, such of the following
as are applicable:
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(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Certificated Security; and
(16) Selling Agent or Purchasing Agent.
PREPARATION OF PRICING SUPPLEMENT BY COMPANY:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies (or one copy if sent by facsimile) of
such Pricing Supplement, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will file, or arrange to have filed,
the Pricing Supplement with the Commission not later than the close of business
of the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing
II-10
<PAGE>
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the confir-
mation of sale or (b) the Certificated Security.
DATE OF SETTLEMENT:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such offer or (b) with respect to
an offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
INSTRUCTION FROM COMPANY TO TRUSTEE FOR PREPARATION OF CERTIFICATED SECURITIES:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent (as the case may be), but no later than 3:00 p.m. on the Business Day
immediately preceding the Settlement Date, the Company will communicate such
Sale Information to the Trustee by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 12 noon, New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 9:00 a.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
PREPARATION AND DELIVERY OF CERTIFICATED SECURITIES BY TRUSTEE AND RECEIPT OF
PAYMENT THEREFOR:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction at or
prior to 12 noon, New York City time, on the Settlement Date.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 12 noon, New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. At or prior to 2:15 p.m., New York
City time, on the Settlement Date the Selling Agent will deliver payment for
such Certificated Securities in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Securities less the Selling
Agent's commission; provided that the Selling Agent reserves the right to
withhold payment for which it has not received funds from the purchaser. The
Company shall not use any proceeds advanced by a Selling Agent to acquire
securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
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FAILURE OF PURCHASER TO PAY SELLING AGENT:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount of immediately available
funds equal to the amount previously paid to the Company in respect of such
Certificated Security. Such returns will be made on the Settlement Date, if
possible, and in any event not later than 12 noon, New York City time, on the
Business Day following the Settlement Date. The Company will reimburse the
Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
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<PAGE>
ANNEX III
[INDEXED NOTE]
AMENDMENT NO. __
TO DISTRIBUTION AGREEMENT DATED _________ __, 19__, AS AMENDED
[Insert Title of the Denominated
and Indexed Currencies]
The undersigned hereby agree that for the purpose of the issue and sale of
Notes denominated in [title of currency or currency unit] (the "Denominated
Currency") and indexed to [title of currency or currency unit] (the "Indexed
Currency") pursuant to the Distribution Agreement, dated _________ __, 19__, as
it may be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Distribution Agreement of all Notes denominated in the Denominated Currency and
indexed to the Indexed Currency, whether offered on an agency or principal
basis, but shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Applicable Foreign Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement shall have the same meanings as in the
Distribution Agreement. The term[s] Agent [or Agents], as used in the
Distribution Agreement, shall be deemed to refer [only] to the undersigned
Agent[s], for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
, 19
- ------------------------- ---
[NAME OF COMPANY]
By:
----------------------------
Name:
Title:
[NAME(S) OF AGENT(S) PARTICIPATING
IN THE OFFERING OF THE INDEXED NOTES]
By:
----------------------------
Name:
Title:
<PAGE>
INTERNATIONAL MULTIFOODS CORPORATION
OFFICERS' CERTIFICATE AND AUTHENTICATION ORDER
FOR MEDIUM-TERM NOTES, SERIES B
Pursuant to the Indenture, dated as of January 1, 1990, as
supplemented by the First Supplemental Indenture, dated as of May 29, 1992 (as
so supplemented, the "Indenture"), between International Multifoods Corporation
(the "Company") and First Trust of New York, National Association (successor to
Morgan Guaranty Trust Company of New York), as trustee (the "Trustee"), and
resolutions adopted by the Board of Directors of the Company on December 15,
1995, this Officers' Certificate and Authentication Order is being delivered to
the Trustee to establish the terms of a series of Securities in accordance with
Section 301 of the Indenture, to establish the forms of the Securities of such
series in accordance with Section 201 of the Indenture and to establish
procedures for the authentication and delivery of specific Securities of such
series from time to time pursuant to Section 303 of the Indenture.
Capitalized terms used but not defined herein and defined in the
Indenture shall have the respective meanings ascribed to them in the Indenture.
All conditions precedent provided for in the Indenture relating to the
establishment of (i) a series of Securities, (ii) the forms of such series of
Securities and (iii) the procedures for the authentication and delivery of such
series of Securities have been complied with.
A. ESTABLISHMENT OF SERIES PURSUANT TO SECTION 301 OF INDENTURE.
There is hereby established pursuant to Section 301 of the Indenture a
series of Securities which shall have the following terms (the numbered clauses
set forth below correspond to the numbered subsections of Section 301 of the
Indenture):
(1) The series of Securities hereby being authorized shall be known
and designated as the "Medium-Term Notes, Series B" (referred to herein as the
"Notes").
(2) The aggregate principal amount of the Notes of such series
which may be authenticated and delivered under the Indenture and pursuant to
this Officers' Certificate is limited to $150,000,000 or the equivalent thereof
in foreign currencies or composite currencies as specified (the "Specified
Currency") in the applicable Authentication Certificate (as defined in Section C
below) or, in the case of Original Issue Discount Notes (as defined below), such
principal amount as will result in an aggregate initial offering price as
specified in the applicable Authentication Certificate not to exceed such
amount, (except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes of such series
pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture).
<PAGE>
(3) Unless previously redeemed or repaid, the principal of each
Note will be payable on the date from 9 months or more from its date of issue,
as specified in such Note and in the applicable Authentication Certificate (the
"Stated Maturity").
(4) Each Note (other than a Zero Coupon Note (as defined below))
will bear interest from its Original Issue Date, or from and including the most
recent Interest Payment Date to which interest on such Note has been paid or
duly provided for, until the principal thereof is paid or made available for
payment. The Authentication Certificate relating to each Note will indicate
whether interest shall accrue on any overdue principal and on any overdue
installment of interest (to the extent that the payment of such interest is
legally enforceable) and at what rate any such interest will accrue. Unless
otherwise set forth in the applicable Authentication Certificate, interest will
be payable on each Interest Payment Date and at Maturity. "Maturity" means the
date on which the principal of a Note becomes due and payable in full in
accordance with its terms and the terms of the Indenture, whether at Stated
Maturity, upon acceleration, redemption, repayment or otherwise. Interest
(other than defaulted interest which may be paid on a special record date) will
be payable to the Holder at the close of business on the Regular Record Date
next preceding such Interest Payment Date; PROVIDED, HOWEVER, that interest
payable at Maturity will be payable to the person to whom principal shall be
payable. The first payment of interest on any Note originally issued between a
Regular Record Date and the next Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Regular Record Date to the
Holder on such next succeeding Regular Record Date.
Unless otherwise indicated in the applicable Authentication Certificate,
the Interest Payment Dates and the Regular Record Dates for Fixed Rate Notes (as
defined below) shall be as described below under "Fixed Rate Notes." The
Interest Payment Dates for Floating Rate Notes (as defined below) shall be as
indicated in the applicable Authentication Certificate, and unless otherwise
indicated in the applicable Authentication Certificate, each Regular Record Date
for a Floating Rate Note will be the fifteenth day (whether or not a Business
Day) preceding each Interest Payment Date.
The Authentication Certificate relating to each Note will specify (i) the
price (expressed as a percentage of the aggregate principal amount thereof) at
which such Note will be issued (the "Issue Price"); (ii) the date on which such
Note will be issued (the "Original Issue Date"); (iii) the Stated Maturity; (iv)
whether such Note is a Fixed Rate Note or a Floating Rate Note; (v) if such Note
is a Fixed Rate Note, the rate per annum at which such Note will bear interest,
if any, and the interest payment date or dates, if different from those set
forth below under "Fixed Rate Notes"; (vi) if such Note is a Floating Rate Note,
the Initial Interest Rate, the Interest Rate Basis, the Interest Reset Dates,
the Interest Payment Dates, the Index Maturity, the maximum interest rate, if
any, the minimum interest rate, if any, the Spread, if any, the Spread
Multiplier, if any (all as defined below), and any other terms relating to the
particular method of calculating the interest rate for such Note; (vii)
whether such Note is an Original Issue Discount Note, and if so, the yield to
maturity; (viii)
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<PAGE>
whether such Note is a Currency Indexed Note or a Commodity Indexed Note
(each as defined below), and if so, the specific terms thereof; (ix) whether
such Note is an Amortizing Note (as defined below), and if so, the basis or
formula for the amortization of principal and/or interest and the payment
dates for such periodic principal payments; and (x) the regular record date
or dates (a "Regular Record Date") if other than as set forth below.
The applicable Authentication Certificate may provide that payments of
principal and interest on a Note shall be made in installments over the life of
the Note ("Amortizing Notes"). Interest on each Amortizing Note will be
computed as set forth in the applicable Authentication Certificate or in such
Amortizing Note. Unless otherwise provided in such Authentication Certificate or
in such Amortizing Note, payments with respect to Amortizing Notes will be
applied first to interest due and payable thereon and then to the reduction of
the unpaid principal amount thereof.
All percentages resulting from any calculation with respect to any Notes
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and
all dollar amounts used in or resulting from such calculation on any Notes will
be rounded to the nearest cent with one half cent being rounded upward.
As used herein, "Business Day" means, unless otherwise specified in the
applicable Authentication Certificate, 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, with respect to Notes as to which LIBOR (as defined below) is an
applicable Base Rate (as defined below), is also a London Business Day (as
defined below); PROVIDED, HOWEVER, that with respect to any Note denominated in
a currency or currency unit other than U.S. dollars (a "Foreign Currency Note"),
such day is also not a day on which banking institutions are authorized or
required by law, regulation or executive order to close in the principal
financial center of the country of such Specified Currency (or, in the case of
ECUs, is not a day designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payments on ECUs shall not be made). As used herein, "London
Business Day" means any day (i) if the Designated LIBOR Currency (as defined
below) is other than the ECU, on which dealings in deposits in such Designated
LIBOR Currency are transacted in the London interbank market or (ii) if the
Designated LIBOR Currency is the ECU, that is not designated as an ECU Non-
Settlement Day by the ECU Banking Association in Paris or otherwise generally
regarded in the ECU interbank market as a day on which payments on ECUs shall
not be made.
Unless otherwise indicated in the applicable Authentication Certificate,
each Note will bear interest at either (i) a fixed rate (a "Fixed Rate Note"),
which may be zero in the case of certain Notes issued at a price representing a
discount from the principal amount payable at Stated Maturity (a "Zero Coupon
Note") or (ii) a
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<PAGE>
floating rate (a "Floating Rate Note") determined by reference to an Interest
Rate Basis which may be adjusted by a Spread and/or Spread Multiplier (each term
as defined below). Any Floating Rate Note may also have either or both of the
following: (i) a maximum numerical interest rate limitation, or ceiling, on the
rate of interest which may accrue during any interest period, and (ii) a minimum
numerical interest rate limitation, or floor, on the rate of interest which may
accrue during any interest period. The applicable Authentication Certificate
relating to each Note will designate either a fixed rate of interest per annum
on the applicable Fixed Rate Note or one of the following Interest Rate Bases as
applicable to the relevant Floating Rate Note: (i) the Commercial Paper Rate, in
which case such Note will be a "Commercial Paper Rate Note," (ii) the CD Rate,
in which case such Note will be a "CD Rate Note," (iii) the Federal Funds Rate,
in which case such Note will be a "Federal Funds Rate Note," (iv) the CMT Rate,
in which case such Note will be a "CMT Rate Note," (v) the 11th District Cost of
Funds Rate, in which case such Note will be an "11th District Cost of Funds Rate
Note," (vi) the Kenny Rate, in which case such Note will be a "Kenny Rate Note,"
(vii) LIBOR, in which case such Note will be a "LIBOR Note," (viii) the Prime
Rate, in which case such Note will be a "Prime Rate Note," (ix) the Treasury
Rate, in which case such Note will be a "Treasury Rate Note," or (x) such other
Interest Rate Basis as is set forth in such Authentication Certificate.
Notwithstanding the determination of the interest rate as provided below,
the interest rate on the Notes 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 in the applicable Authentication Certificate. The interest rate
on the Notes 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.
FIXED RATE NOTES
Each Fixed Rate Note (other than a Zero Coupon Note) will bear interest
from its Original Issue Date at the annual rate stated on the face thereof, as
specified in the applicable Authentication Certificate. Payments of interest on
any Fixed Rate Note with respect to any Interest Payment Date will include
interest accrued from and including the Original Issue Date, or from and
including the next preceding Interest Payment Date, to but excluding the
applicable Interest Payment Date or Maturity. Fixed Rate Notes may bear one or
more annual rates of interest during the periods or under the circumstances
specified therein and in the applicable Authentication Certificate. Interest on
Fixed Rate Notes will be computed and paid on the basis of a 360-day year of
twelve 30-day months.
Unless otherwise specified in the applicable Authentication Certificate,
the Interest Payment Dates for Fixed Rate Notes (other than Amortizing Notes)
will be either semiannually on each March 15 and September 15 or annually on
March 15 and the Regular Record Dates will be each March 1 and November 1 or
March 1, as the case may be (whether or not a Business Day). Unless otherwise
specified in the applicable Authentication Certificate, payments of principal
and interest on Fixed
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Rate Amortizing Notes will be made either quarterly on each March 15, June 15,
September 15 and December 15, semiannually on each March 15 and September 15 or
annually on each March 15, as set forth in the applicable Authentication
Certificate, and at Maturity. Unless otherwise specified in the applicable
Authentication Certificate, Regular Record Dates with respect to Fixed Rate
Amortizing Notes will be the 15th day (whether or not a Business Day) next
preceding each Interest Payment Date. If the Interest Payment Date or Maturity
for any Fixed Rate Note is a day that is not a Business Day, all payments to be
made on such day will be made on the next succeeding Business Day with the same
force and effect as if made on the due date, and no additional interest shall be
payable as a result of such delayed payment.
FLOATING RATE NOTES
The interest rate on each Floating Rate Note will be equal to the interest
rate calculated by reference to the specified Interest Rate Basis (i) plus or
minus the Spread, if any, and/or (ii) 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 in the applicable Authentication
Certificate as being applicable to such Note, and the "Spread Multiplier" is the
percentage specified in the applicable Authentication Certificate as being
applicable to such Note. The applicable Authentication Certificate will specify
the Interest Rate Basis and the Spread and/or Spread Multiplier, if any, and the
maximum or minimum interest rate limitation, if any, applicable to each Floating
Rate Note. In addition, such Authentication Certificate will specify 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 in the applicable Authentication Certificate (the "Initial
Interest Rate"), Interest Determination Dates, Interest Payment Dates, Regular
Record Dates and Interest Reset Dates with respect to such Note.
Except as provided below or in the applicable Authentication Certificate,
interest on Floating Rate Notes, including Floating Rate Amortizing Notes, will
be payable, (i) in the case of Floating Rate Notes that reset daily, weekly or
monthly, on the third Wednesday of each month or on the third Wednesday of
March, June, September and December of each year, as specified on the face
thereof and in the applicable Authentication Certificate; (ii) in the case of
Floating Rate Notes, including Floating Rate Amortizing Notes, that reset
quarterly, on the third Wednesday of March, June, September and December of each
year; (iii) in the case of Floating Rate Notes, including Floating Rate
Amortizing Notes, that reset semiannually, on the third Wednesday of each of two
months of each year specified on the face thereof and in the applicable
Authentication Certificate; and (iv) in the case of Floating Rate Notes,
including Floating Rate Amortizing Notes, that reset annually, on the third
Wednesday of one month of each year specified on the face thereof and in the
applicable Authentication Certificate (each such day being an "Interest Payment
Date") and, in each case, at Maturity. If any Interest Payment Date, other than
Maturity, for any Floating Rate 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 in the case of a LIBOR Note, if such Business Day
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<PAGE>
is in the next succeeding calendar month, such Interest Payment Date shall be
the immediately preceding London Business Day). If the Maturity for any
Floating Rate Note falls on a day that is not a Business Day, payment of
principal, premium, if any, and interest with respect to such 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 additional interest shall be payable as a result of such
delayed payment.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, 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 in the applicable Authentication
Certificate. The Interest Reset Date will be, in the case of Floating Rate
Notes which reset daily, each Business Day; in the case of Floating Rate Notes
(other than Treasury Rate Notes) which reset weekly, the Wednesday of each week;
in the case of Treasury Rate Notes which reset weekly, the Tuesday of each week,
except as provided below; in the case of Floating Rate Notes which reset
monthly, the third Wednesday of each month (with the exception of monthly reset
11th District Cost of Funds Rate Notes, which will reset on the first calendar
day of the month); in the case of Floating Rate Notes which reset quarterly, the
third Wednesday of each March, June, September and December; in the case of
Floating Rate Notes which reset semiannually, the third Wednesday of the two
months of each year specified in the applicable Authentication Certificate; and
in the case of Floating Rate Notes which reset annually, the third Wednesday of
one month of each year specified in the applicable Authentication Certificate;
PROVIDED, HOWEVER, that the interest rate in effect from the Original Issue Date
to the first Interest Reset Date with respect to a Floating Rate Note will be
the Initial Interest Rate (as set forth in the applicable Authentication
Certificate). If any Interest Reset Date for any Floating Rate Note would
otherwise be a day that is not a Business Day, the Interest Reset Date for such
Floating Rate Note shall be postponed to the next day that is a Business Day,
except that in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding 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 Maturity, 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 in the applicable Authentication
Certificate, the "Interest Determination Date" pertaining to an Interest Reset
Date for (i) a Commercial Paper Rate Note (the "Commercial Paper Interest
Determination Date"), (ii) a CD Rate Note (the "CD Interest Determination
Date"), (iii) a Federal Funds Rate Note (the "Federal Funds Interest
Determination Date"), (iv) a CMT Rate Note (the "CMT Interest Determination
Date"), (v) a Kenny Rate Note (the "Kenny Rate Interest Determination Date"), or
(vi) a Prime Rate Note (the "Prime Interest Determination Date") will be the
second Business Day prior to such Interest Reset Date. Unless otherwise
specified in the applicable Authentication Certificate, the Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note (the "11th District Interest Determination Date")
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will be the last Business Day of the month immediately preceding such Interest
Reset Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of
San Francisco") publishes the Index (as defined below). Unless otherwise
specified in the applicable Authentication Certificate, the Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Note (the
"LIBOR Interest Determination Date") will be the second London Business Day
immediately preceding each Interest Reset Date. Unless otherwise specified in
the applicable Authentication Certificate, 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. If, as a
result of a legal holiday, an auction is 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 in the applicable Authentication Certificate, 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.
"Index Maturity" means, with respect to a Floating Rate Note, the period to
maturity of the instrument or obligation on which the interest rate formula is
based, as specified in the applicable Authentication Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
interest on Floating Rate Notes will accrue from and including the Original
Issue Date 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 Maturity, as the case may be.
With respect to Floating Rate Notes, accrued interest shall be calculated by
multiplying the face amount of the Note by an accrued interest factor. Such
accrued interest factor is computed by adding the interest factors calculated
for each day from the Original Issue Date, 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 (unless otherwise specified
in the applicable Authentication Certificate) 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, 11th District Cost of Funds
Rate Notes, LIBOR Notes and Prime Rate Notes, or by 365 days in the case of
Kenny Rate Notes or by the actual number of days in the year, in the case of CMT
Rate Notes or Treasury Rate Notes.
The Calculation Agent shall calculate the interest rate on the Floating
Rate Notes, as provided below. The Calculation Agent's determination of any
interest rate shall be final and binding in the absence of manifest error.
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COMMERCIAL PAPER RATE NOTES
Each Commercial Paper Rate Note will bear interest at the interest rate
(calculated with reference to the Commercial Paper Rate and the Spread and/or
Spread Multiplier, if any) specified in the Commercial Paper Rate Note and in
the applicable Authentication Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"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 specified
in the applicable Authentication Certificate 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." 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 specified in the applicable Authentication Certificate 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 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 in the
applicable Authentication Certificate 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:
Money Market Yield = D X 360
-----------------------------
360 - (D X M) X 100
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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.
CD RATE NOTES
Each CD Rate Note will bear interest at the interest rate (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any)
specified in the CD Rate Note and in the applicable Authentication Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"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
specified in the applicable Authentication Certificate 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 specified in the applicable Authentication Certificate 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
designated in the applicable Authentication Certificate 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.
CMT RATE NOTES
Each CMT Rate Note will bear interest at the interest rate (calculated with
reference to the CMT Rate and the Spread and/or Spread Multiplier, if any)
specified in the CMT Rate Note and in the applicable Authentication Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"CMT Rate" means, with respect to any CMT Interest Determination Date, the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Interest Determination Date and (ii) if the
Designated CMT
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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 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
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the third preceding sentence have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified in the applicable Authentication Certificate (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
purpose of displaying Treasury Constant Maturities as published in H.15(519).
If no such page is specified in the applicable Authentication Certificate, 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 in the applicable Authentication Certificate with respect to
which the CMT Rate will be calculated. If no such maturity is specified in the
applicable Authentication Certificate, the Designated CMT Maturity Index shall
be two years.
FEDERAL FUNDS RATE NOTES
Each Federal Funds Rate Note will bear interest at the interest rate
(calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any) specified in the Federal Funds Rate Note and in the
applicable Authentication Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"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 with respect to such Federal Funds Interest Determination
Date 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 (each as
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.
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11TH DISTRICT COST OF FUNDS RATE NOTES
Each 11th District Cost of Funds Rate Note will bear interest at the
interest rate (calculated with reference to the 11th District Cost of Funds Rate
and the Spread and/or Spread Multiplier, if any) specified in the 11th District
Cost of Funds Rate Note and in the Authentication Certificate.
Unless otherwise specified in the applicable Authentication Certificate,
"11th District Cost of Funds Rate" means, with respect to any 11th District
Interest Determination Date, the rate equal to the monthly weighted average cost
of funds for the calendar month preceding such 11th District Cost of Funds Rate
Interest Determination Date as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such 11th District
Interest Determination Date. If such rate does not appear on Telerate Page 7058
on any related 11th District Interest Determination Date, the 11th District Cost
of Funds Rate for such 11th District Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month preceding the date of such announcement. If the FHLB of San Francisco
fails to announce such rate for the calendar month next preceding such 11th
District Interest Determination Date, then the 11th District Cost of Funds Rate
for such 11th District Interest Determination Date will be the 11th District
Cost of Funds Rate then in effect on such 11th District Interest Determination
Date.
KENNY RATE NOTES
Each Kenny Rate Note will bear interest at the interest rate (calculated
with reference to the Kenny Rate and the Spread and/or Spread Multiplier, if
any) specified in the applicable Kenny Rate Note and in the Authentication
Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"Kenny Rate" means, with respect to any Kenny Rate Interest Determination Date,
the high grade weekly index (the "Weekly Index") on such date made available by
Kenny Information Systems ("Kenny") to the Calculation Agent. The Weekly Index
is, and shall be, based upon 30 day yield evaluations at par of bonds, the
interest on which is exempt from Federal income taxation under the Internal
Revenue Code of 1986, as amended, of not less than five high grade component
issuers selected by Kenny which shall include, without limitation, issuers of
general obligation bonds. The specific issuers included among the component
issuers may be changed from time to time by Kenny in its discretion. The bonds
on which the Weekly Index is based shall not include any bonds on which the
interest is subject to a minimum tax or similar tax under the Internal Revenue
Code of 1986, as amended, unless all tax-exempt bonds are subject to such tax.
In the event Kenny ceases to make available such Weekly Index, a successor
indexing agent will be selected by the Calculation Agent, such index to reflect
the prevailing rate for bonds rated in the highest short-term rating category by
Moody's Investors Service, Inc. and Standard & Poor's Corporation in respect of
issuers most closely resembling the high grade component
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issuers selected by Kenny for its Weekly Index, the interest on which is (i)
variable on a weekly basis, (ii) exempt from Federal income taxation under the
Internal Revenue Code of 1986, as amended, and (iii) not subject to a minimum
tax or similar tax under the Internal Revenue Code of 1986, as amended, unless
all tax-exempt bonds are subject to such tax. If such successor indexing agent
is not available, the rate for any Kenny Rate Interest Determination Date shall
be 67% of the rate determined if the Treasury Rate option had been originally
selected.
LIBOR NOTES
Each LIBOR Note will bear interest at the interest rate (calculated with
reference to LIBOR and the Spread and/or Spread Multiplier, if any) specified in
the LIBOR Note and in the applicable Authentication Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"LIBOR" means, with respect to any LIBOR Interest Determination Date, the rate
determined 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 in the Note and the
applicable Authentication Certificate, 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 having the Index
Maturity designated in the Note and the applicable Authentication
Certificate, commencing on the second London Business Day immediately
following the LIBOR Interest Determination Date, which appear on the
Designated LIBOR Page specified in the Note and the applicable
Authentication Certificate 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 in the Note and the
applicable Authentication Certificate, the rate for deposits in the
Designated LIBOR Currency having the Index Maturity designated in the Note
and the applicable Authentication Certificate, commencing on the second
London Business Day immediately following such LIBOR Interest Determination
Date, which appears on the Designated LIBOR Page specified in the Note and
the applicable Authentication Certificate 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.
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(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 case 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 for the period of the Index Maturity designated in the Note and
the applicable Authentication Certificate, 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 Principal Financial Center (as defined below), on such LIBOR
Interest Determination Date by three major banks in such Principal
Financial Center selected by the Calculation Agent for loans in the
Designated LIBOR Currency to leading banks, having the Index Maturity
designated in the Note and the applicable Authentication Certificate in a
principal amount that is representative for a single transaction in such
Designated LIBOR Currency in such market at such time; PROVIDED, HOWEVER,
that if the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined on such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means, as with respect to any LIBOR Note, the
currency (including a composite currency), if any, designated in the Note and
the applicable Authentication Certificate as the Designated LIBOR Currency. If
no such currency is designated in the Note and the applicable Authentication
Certificate, the Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (i) the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank rates of
major banks for the applicable Designated LIBOR Currency (if "LIBOR Reuters" is
designated in the Note and the applicable Authentication Certificate), or (ii)
the display on the Dow Jones Telerate Service for the purpose of displaying the
London interbank rates of major banks for the applicable designated LIBOR
Currency (if "LIBOR Telerate" is designated in the Note and the applicable
Authentication Certificate). If neither LIBOR Reuters nor LIBOR Telerate is
specified in the Note and applicable Authentication Certificate, LIBOR for the
applicable Designated LIBOR Currency will be determined as if LIBOR Telerate
(and, if the U.S. dollar is the Designated LIBOR Currency, page 3750) had been
chosen.
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"Principal Financial Center" means, with respect to any LIBOR Note, unless
otherwise specified in the Note and the applicable Authentication Certificate,
the capital city of the country that issues as its legal tender the Designated
LIBOR Currency of such Note, except that with respect to U.S. dollars and ECUs,
the Principal Financial Center shall be The City of New York and Brussels,
respectively.
PRIME RATE NOTES
Each Prime Rate Note will bear interest at the interest rate (calculated
with reference to the Prime Rate and the Spread and/or Spread Multiplier, if
any) specified in the Prime Rate Note and in the applicable Authentication
Certificate.
Unless otherwise indicated in the applicable Authentication Certificate,
"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 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 NYMF 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 NYMF Page for the Prime
Interest Determination Date, the Prime Rate with respect to such Prime Interest
Determination Date shall be the arithmetic mean of the prime rates quoted on the
basis of the actual number of days in the year divided by 360 as of the close of
business on such Prime Interest Determination Date by at least two of the three
major money center banks in The City of New York selected by the Calculation
Agent. 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 NYMF Page" means the display designated as page "NYMF" on the Reuters
Monitor Money Rate Service (or such other page as may replace the NYMF page on
the service for the purpose of displaying the prime rate or base lending rate of
major banks).
TREASURY RATE NOTES
Each Treasury Rate Note will bear interest at the interest rate (calculated
with reference to the Treasury Rate and the Spread and/or Spread Multiplier, if
any) specified in the Treasury Rate Note and in the applicable Authentication
Certificate.
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<PAGE>
Unless otherwise indicated in the applicable Authentication Certificate,
"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 in the applicable
Authentication Certificate 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 United States 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, or if no such
auction is held in a particular week, then the Treasury Rate with respect to
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 in the applicable Authentication
Certificate; 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.
(5) Unless otherwise specified in the applicable Authentication
Certificate, payments of interest and, in the case of Amortizing Notes,
principal with respect to any Certificated Note (other than interest and, in the
case of Amortizing Notes, principal payable at Stated Maturity) will be made by
mailing a check to the Holder at the address of such Holder appearing on the
Security Register for the Notes on the applicable Regular Record Date.
Notwithstanding the foregoing, at the option of the Company, all payments of
interest (and, in the case of Amortizing Notes, principal) on any Certificated
Note may be made by wire transfer of immediately available funds to an account
at a bank located within the United States as designated by each Holder not less
than 15 calendar days prior to the applicable Interest Payment Date. A Holder
of $10,000,000 or more in aggregate principal amount of Certificated Notes of
like tenor and terms with the same Interest Payment Date may demand payment by
wire transfer 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. In the event that payment is so made in accordance with
instructions of the Holder, such wire transfer shall be deemed to constitute
full and complete payment of such interest and principal on the Notes. Payment
of the principal of (and premium, if any) and any interest due with respect to
any Certificated Note at Maturity will be made in immediately available funds
upon surrender of such Note at the Corporate Trust Office of the Trustee in The
City of New York accompanied by wire transfer instructions, provided that the
Certificated Note is presented to the Trustee in time
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<PAGE>
for the Trustee to make such payments in such funds in accordance with its
normal procedures.
Unless otherwise specified in the applicable Authentication Certificate,
payments of principal (and premium, if any) and any interest with respect to any
Foreign Currency Note will be made by wire transfer to such account with a bank
located in the country issuing the Specified Currency (or, with respect to
Foreign Currency Notes denominated in ECUs, Brussels) or other jurisdiction
acceptable to the Company and the Trustee as shall have been designated at least
15 days prior to the Interest Payment Date or Maturity, as the case may be, by
the Holder of such Foreign Currency Note on the relevant Regular Record Date or
at Maturity, provided that, in the case of payment of principal of (and premium,
if any) and any interest due at Maturity, the Foreign Currency Note is presented
to the Paying Agent in time for the Paying Agent to make such payments in such
funds in accordance with its normal procedures. Such designation shall be made
by filing the appropriate information with the Trustee at its Corporate Trust
Office, and, unless revoked, any such designation made with respect to any
Foreign Currency Note by a Holder will remain in effect with respect to any
further payments with respect to such Foreign Currency Note payable to such
Holder. If a payment with respect to any such Foreign Currency 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 any tax, assessment or governmental
charge imposed upon payments will be borne by the Holders of the Foreign
Currency Notes in respect of which such payments are made.
Payment of principal of and any premium and interest on Book-Entry Notes
represented by any Global Security will be made to the Depositary or its
nominee, as the case may be, as the sole registered owner and the sole Holder of
the Book-Entry Notes represented thereby for all purposes under the Indenture.
(6) The Notes will be redeemable at the option of the Company prior
to the Stated Maturity only if an Initial Redemption Date is specified in the
applicable Authentication Certificate ("Initial Redemption Date"). If so
specified, the Notes will be subject to redemption at the option of the Company
on any date on and after the applicable Initial Redemption Date in whole or from
time to time in part in increments of $1,000 or the minimum denomination
specified in such Authentication Certificate (provided that any remaining
principal amount thereof shall be at least $1,000 or such minimum denomination),
at the applicable Redemption Price (as defined below) on notice given not more
than 60 nor less than 30 days prior to the date of redemption and in accordance
with the provisions of the Indenture. "Redemption Price," with respect to a
Note, means an amount equal to the sum of (i) the Initial Redemption Percentage
specified in such Authentication Certificate (as adjusted by the Annual
Redemption Percentage Reduction, if applicable (as specified in such
Authentication Certificate)) multiplied by the unpaid
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<PAGE>
principal amount or the portion to be redeemed plus (ii) accrued interest to the
date of redemption. The Initial Redemption Percentage, if any, applicable to a
Note shall decline at each anniversary of the Initial Redemption Date by an
amount equal to the applicable Annual Redemption Percentage Reduction, if any,
until the Redemption Price is equal to 100% of the unpaid principal amount
thereof or the portion thereof to be redeemed.
(7) Unless otherwise specified in the applicable Authentication
Certificate, the Notes will not be subject to any sinking fund. The
Authentication Certificate relating to each Note will specify whether such Note
can be repaid prior to Stated Maturity or whether such Note will be repayable at
the option of the Holder on a date or dates specified prior to Stated Maturity
at a price or prices set forth in the applicable Authentication Certificate,
together with accrued interest to the date of repayment.
In order for a Note that 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 60 days prior to the repayment date (i) the Note with the form
entitled "Option to Elect Repayment" on the reverse of the Note duly completed
or (ii) a telegram, telex, 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 setting forth the name of the Holder of the Note, the
principal amount of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of the Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed will be received by the
Paying Agent not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter and such Note and form duly completed
are received by the Paying Agent by such Business Day. Unless otherwise
specified in the applicable Authentication Certificate, exercise of the
repayment option by the Holder of a Note shall be irrevocable. The repayment
option may be exercised by the Holder of a Note for less than the entire
principal amount of the Note, provided that the principal amount of the Note
remaining outstanding after such repayment is of an authorized denomination.
While the Book-Entry Notes are represented by the Global Securities held by
or on behalf of the Depositary, and registered in the name of the Depositary or
the Depositary's nominee, the option for repayment may be exercised by the
applicable participant that has an account with the Depositary, on behalf of the
beneficial owners of the Global Security or Securities representing such Book-
Entry Notes, by delivering a written notice substantially similar to the above
mentioned form to the Trustee at its Corporate Trust Office (or such other
address of which the Company shall from time to time notify the Holders), not
more than 60 nor less than 30 days prior to the date of repayment. Notices of
election from participants on behalf of beneficial owners of the Global Security
or Securities representing such Book-Entry Notes to exercise their option to
have such Book-Entry Notes repaid must be received by the Trustee by 5:00 P.M.,
New York City time, on the last day for giving such notice. All
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<PAGE>
notices shall be executed by a duly authorized officer of such participant (with
signatures guaranteed) and shall be irrevocable. In addition, beneficial owners
of the Global Security or Securities representing Book-Entry Notes shall effect
delivery at the time such notices of election are given to the Depositary by
causing the applicable participant to transfer such beneficial owner's interest
in the Global Security or Securities representing such Book-Entry Notes, on the
Depositary's records, to the Trustee.
(8) Unless otherwise specified in the applicable Authentication
Certificate, any Note denominated in U.S. dollars will be issued in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. The
authorized denominations of any Note denominated in other than U.S. dollars will
be specified in the applicable Authentication Certificate.
(9) Notwithstanding anything herein to the contrary, unless
otherwise specified in the applicable Authentication Certificate, if a Note is
an Original Issue Discount Note, the amount payable on such Note in the event
the principal thereof is declared to be due and payable immediately upon an
Event of Default as described in the Indenture, or in the event of the
redemption or repayment thereof prior to its Stated Maturity, shall be the
Amortized Face Amount of such Note as of the date of declaration, redemption or
repayment, as the case may be. The "Amortized Face Amount" of an Original Issue
Discount Note shall be the amount equal to (i) the principal amount of such Note
multiplied by the Issue Price set forth in the applicable Authentication
Certificate plus (ii) the portion of the difference between the dollar amount
determined pursuant to the preceding clause (i) and the principal amount of such
Note that has accreted at the yield to maturity set forth in the Authentication
Certificate (computed in accordance with generally accepted United States bond
yield computation principles) to such date of declaration, redemption or
repayment, but in no event shall the Amortized Face Amount of an Original Issue
Discount Note exceed its principal amount.
"Original Issue Discount Note" means, (i) a Note that has a stated
redemption price at Maturity that exceeds its Issue Price (as defined for U.S.
federal income tax purposes) by at least 0.25% of its stated redemption price at
Maturity multiplied by the number of full years from the Original Issue Date to
the Stated Maturity for such Notes and (ii) any other Note designated by the
Company as issued with original issue discount for U.S. federal income tax
purposes.
For purposes of determining whether Holders of the requisite principal
amount of Notes outstanding under the Indenture have made a demand or given a
notice or waiver or taken any other action, the outstanding principal amount of
Original Issue Discount Notes shall be deemed to be the amount of the principal
that would be due and payable upon declaration of acceleration of the Stated
Maturity thereof as of the date of such determination.
(10) Unless otherwise specified in the applicable Authentication
Certificate, the Notes will be denominated in U.S. dollars and principal of (and
premium, if any) and any interest on the Notes will be payable in U.S. dollars.
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<PAGE>
(11) If so specified in the applicable Authentication Certificate,
except as provided below, payments of principal (and premium, if any) and any
interest with respect to any Foreign Currency Note will be made in U.S. dollars
if the Holder of such Foreign Currency Note on the relevant Regular Record Date
or at Maturity, as the case may be, has transmitted a written request for such
payment in U.S. dollars to the Paying Agent at its principal office on or prior
to such Regular Record Date or the date 15 days prior to Maturity, as the case
may be. Such request may be delivered by mail, by hand or by cable, telex or
any other form of facsimile transmission. Any such request made with respect to
any Foreign Currency Note by a Holder will remain in effect with respect to any
further payments of principal (and premium, if any) and any interest with
respect to such Foreign Currency Note payable to such Holder, unless such
request is revoked by written notice received by the Paying Agent on or prior to
the relevant Regular Record Date or the date 15 days prior to Maturity, as the
case may be (but no such revocation may be made with respect to payments made on
any such Foreign Currency Note if an Event of Default has occurred with respect
thereto or upon the giving of a notice of redemption).
The U.S. dollar amount to be received by a Holder of a Foreign Currency
Note who elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from the
bank composite or multicontributor pages of the Quoting Source for three (or two
if three are not available) major banks in The City of New York. The first
three (or two) such banks selected by the Currency Determination Agent which are
offering quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business Day next preceding the applicable payment date, such payment will be
based on the Market Exchange Rate as of the second Business Day next preceding
the applicable payment date. If the Market Exchange Rate (as defined below) for
such date is not then available, such payment will be made in the Specified
Currency. As used herein, the "Quoting Source" means Reuters Monitor Foreign
Exchange Service, or if the Currency Determination Agent determines that such
service is not available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on any such
Foreign Currency Note will be borne by the Holder thereof by deductions from
such payment. The currency determination agent (the "Currency Determination
Agent") with respect to any Foreign Currency Notes will be specified in the
applicable Authentication Certificate for such Foreign Currency Notes.
If payment in respect of a Foreign Currency Note is required to be made in
any currency unit and such currency unit is unavailable, in the good faith
judgment of the Company, due to the imposition of exchange controls or other
circumstances
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<PAGE>
beyond the Company's control, then all payments in respect of such Foreign
Currency Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on Holders of Foreign Currency
Notes.
(12) Notes may be issued with the principal amount payable at
Maturity, or the amount of interest payable on an Interest Payment Date, to be
determined by reference to a currency exchange rate, composite currency,
commodity price or other financial or non-financial index as set forth in the
applicable Authentication Certificate.
CURRENCY INDEXED NOTES
The applicable Authentication Certificate may provide that the principal
amount payable at Maturity and/or the interest rate of a Note shall be
determined by a formula which makes reference to the rate of exchange between
one currency ("Currency I") and another currency ("Currency II"; together with
Currency I, the "Selected Currencies," both as specified in the applicable
Authentication Certificate), neither of which need be the Specified Currency of
such Notes (the "Currency Indexed Notes"). Unless otherwise specified in the
applicable Authentication Certificate, Holders of Currency Indexed Notes will be
entitled to receive (i) an amount in respect of principal equal to the principal
amount of the Currency
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<PAGE>
Indexed Notes plus an adjustment, which may be negative or positive, based on
the change in the relationship between Selected Currencies or (ii) an amount of
interest calculated at the stated rate of interest on the Currency Indexed Note
plus an adjustment, which may be negative or positive, based on the change in
the relationship between the Selected Currencies, in each case determined as
described below. As specified in the Authentication Certificate, the exchange
rate designated as the base exchange rate (the "Base Exchange Rate") will be the
initial rate at which Currency I can be exchanged for Currency II and from which
the change in such exchange rate will be measured.
Unless otherwise specified in the applicable Authentication Certificate,
the payment of principal at Maturity and interest on each Interest Payment Date
(until the payment thereof is paid or made available for payment) with respect
to a Currency Indexed Note will be payable in the Specified Currency in amounts
calculated in the manner described below.
Unless otherwise specified in the applicable Authentication Certificate,
principal at Maturity, if indexed, will be payable in an amount equal to the
principal amount of the Currency Indexed Note, plus or minus an amount
determined by reference to the difference between the Base Exchange Rate
specified in the applicable Authentication Certificate and the rate at which
Currency I can be exchanged for Currency II on the second Business Day prior to
the Maturity (the "Determination Date") of such Currency Indexed Note, as
determined by the determination agent specified in the applicable Authentication
Certificate (the "Determination Agent"). Unless otherwise specified in the
applicable Authentication Certificate, the interest payable on any Interest
Payment Date, if indexed, will be payable in an amount equal to the stated
interest rate of the Currency Indexed Note, plus or minus a rate adjustment
determined by reference to the difference between the Base Exchange Rate
specified in the applicable Authentication Certificate and the rate at which
Currency I can be exchanged for Currency II on the second Business Day prior to
the Interest Payment Date (the "Indexed Interest Determination Date") of such
Currency Indexed Note, as determined by the Determination Agent, applied to the
average principal amount outstanding of such Note for the period being measured.
For the purpose of this determination, such rate of exchange on the
Determination Date or the Indexed Interest Determination Date, as the case may
be, will be the average of quotations for settlement on the Maturity date or the
relevant Interest Payment Date, as the case may be, obtained by the
Determination Agent from three Reference Dealers in The City of New York at
approximately 11:00 A.M., New York City time, on either the Determination Date
or the relevant Indexed Interest Determination Date, as the case may be.
The formulas to be used by the Determination Agent to determine the
principal amount and/or the stated interest rate of a Currency Indexed Note
payable at Maturity or any Interest Payment Date will be specified in the
applicable Authentication Certificate by reference to the appropriate formula
and will be as follows:
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<PAGE>
PRINCIPAL
(i) If principal is to increase when the Spot Rate (as defined below)
exceeds the Base Exchange Rate, and if principal is to decrease when the Spot
Rate is less than the Base Exchange Rate, the formula to determine the principal
amount of a Currency Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x F x [Spot Rate -- Base Exchange Rate])
------------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference Dealer's
quotation will be the rate at which such Reference Dealer will sell Currency I
in exchange for a single unit of Currency II.
(ii) If principal is to increase when the Base Exchange Rate exceeds the
Spot Rate, and if principal is to decrease when the Base Exchange Rate is less
than the Spot Rate, the formula to determine the principal amount of a Currency
Indexed Note payable at Maturity shall equal:
Principal Amount + (Principal Amount x F x [Base Exchange Rate -- Spot Rate])
------------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference Dealer's
quotation will be the rate at which such Reference Dealer will purchase Currency
I in exchange for a single unit of Currency II.
INTEREST
(i) If interest is to increase when the Spot Rate exceeds the Base
Exchange Rate, and if interest is to decrease when the Spot Rate is less than
the Base Exchange Rate, the formula to determine the interest rate payable on
any Interest Payment Date on a Currency Indexed Note shall equal:
Stated Interest Rate + (F x [Spot Rate--Base Exchange Rate])
----------------------------
Spot Rate
To determine the "Spot Rate" for use in this formula, each Reference Dealer's
quotation will be the rate at which such Reference Dealer will sell Currency I
in exchange for a single unit of Currency II.
(ii) If interest is to increase when the Base Exchange Rate exceeds the
Spot Rate, and if interest is to decrease when the Base Exchange Rate is less
than the Spot Rate, the formula to determine the interest rate payable on any
Interest Payment Date on a Currency Indexed Note shall equal:
Stated Interest Rate + (F x [Base Exchange Rate--Spot Rate])
----------------------------
Spot Rate
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<PAGE>
To determine the "Spot Rate" for use in this formula, each Reference Dealer's
quotation will be the rate at which such Reference Dealer will purchase Currency
I in exchange for a single unit of Currency II.
In each of the above formulas "F" will be the leverage factor, if any,
used in such formula.
COMMODITY INDEXED NOTES
The applicable Authentication Certificate may provide that the
principal amount payable at Maturity and/or the interest rate of a Note shall be
determined by a formula which makes reference to a commodity price and/or
commodity index, as specified in the applicable Authentication Certificate (a
"Commodity Indexed Note"). The Authentication Certificate relating to a
Commodity Indexed Note will set forth the method by which the amount of interest
payable, and the amount of principal payable at Maturity, in respect of such
Commodity Indexed Note will be determined.
(13) Unless otherwise specified in the applicable Authentication
Certificate, Sections 1009, 1010, 1011, 1012 and 1013 of the Indenture shall be
applicable in their entirety to the Notes.
(14) Each Note will be represented by either a Global Security
registered in the name of the Depositary or its nominee (each Note represented
by a Global Security being herein referred to as a "Book-Entry Note") or a
certificate issued in definitive form (a "Certificated Note"), as set forth in
the applicable Authentication Certificate. Unless otherwise specified in the
applicable Authentication Certificate, The Depository Trust Company will act as
Depositary.
(15) Subject to the terms of the Indenture and the resolutions and
authorizations referred to in the first paragraph hereof, the Notes shall have
such other terms (which may be in addition to or different from the terms set
forth herein) as are specified in the applicable Authentication Certificate.
B. ESTABLISHMENT OF NOTE FORMS PURSUANT TO SECTION 201 OF
INDENTURE.
It is hereby established pursuant to Section 201 of the Indenture that
Notes denominated in U.S. dollars (whether Book-Entry Notes or Certificated
Notes) shall be substantially in the forms attached as Exhibits A and B hereto,
unless a different form is provided in the applicable Authentication Certificate
(which Authentication Certificate shall be an "Officers' Certificate" satisfying
the requirements of Section 201 of the Indenture). The Notes shall have such
additional terms as shall be set forth in the applicable Authentication
Certificate and delivered to the Trustee or its authenticating agent. Upon
receipt (including by facsimile) of such an Authentication Certificate, the
Trustee or its authenticating agent is hereby instructed to insert such terms on
the face of the Notes relating thereto.
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<PAGE>
C. ESTABLISHMENT OF PROCEDURES FOR AUTHENTICATION AND DELIVERY OF
NOTES PURSUANT TO SECTION 303 OF INDENTURE.
It is hereby ordered pursuant to Section 303 of the Indenture that
Notes may be authenticated from time to time by the Trustee and issued in an
aggregate principal amount not to exceed the amount set forth in Section A(2)
above, in accordance with the Administrative Procedure attached hereto as
Exhibit C (the "Administrative Procedure") and upon receipt by the Trustee
(including by facsimile) of an Authentication Certificate supplemental to this
Officers' Certificate and Authentication Order, in substantially the form
attached as Exhibit D hereto (an "Authentication Certificate"), setting forth
the information specified or contemplated therein for the particular Notes to be
authenticated and issued.
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<PAGE>
D. CERTIFICATION PURSUANT TO SECTION 102 OF INDENTURE.
The undersigned have read the pertinent sections of the Indenture
including the related definitions contained therein. The undersigned have
examined the resolutions adopted by the Board of Directors of the Company on
December 15, 1995. In the opinion of the undersigned, the undersigned have made
such examination or investigation as is necessary to enable the undersigned to
express an informed opinion as to whether or not the conditions precedent to the
establishment of (i) a series of Securities, (ii) the forms of such Securities
and (iii) authentication of such series of Securities contained in the Indenture
have been complied with. In the opinion of the undersigned, such conditions
have been complied with.
Dated: February 1, 1996
INTERNATIONAL MULTIFOODS
CORPORATION
By /s/ Duncan H. Cocroft
------------------------
Duncan H. Cocroft
Vice President-Finance,
Chief Financial Officer and
Treasurer
By /s/ Anthony T. Brausen
------------------------
Anthony T. Brausen
Assistant Treasurer
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<PAGE>
EXHIBIT A
REGISTERED REGISTERED
INTERNATIONAL MULTIFOODS CORPORATION Principal Amount:
No. BA- Medium-Term Note, Series B $
(Fixed Rate Note) CUSIP
No.
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC, AS DEPOSITARY FOR
THIS SERIES OF SECURITIES (THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: REDEMPTION TERMS:
OTHER TERMS: REPAYMENT TERMS:
International Multifoods Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________________ or
registered assigns, the principal sum of _____________________________ United
States Dollars ($_________) on the Maturity Date shown above or, together with
any premium thereon, upon any applicable Redemption Date or Repayment Date shown
above, and to pay interest thereon from the Original Issue Date shown above or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, on each March 15 and September 15 in each year or such other
dates, if any, as are specified under "Other Terms" above (the "Interest
<PAGE>
Payment Dates"), and on the Maturity Date, commencing with the Interest Payment
Date immediately following the Original Issue Date, at the rate per annum equal
to the Interest Rate shown above, until the principal hereof is paid or made
available for payment, and (if specified under "Other Terms" above and to the
extent that the payment of such interest shall be legally enforceable) at the
rate per annum equal to the Interest Rate shown above on any overdue principal
and on any overdue installment of interest; PROVIDED, HOWEVER, that if the
Original Issue Date is after a Regular Record Date and on or before the
immediately following Interest Payment Date interest payments will commence on
the Interest Payment Date following the next succeeding Regular Record Date.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall,
unless otherwise specified under "Other Terms" above, be the March 1 and
September 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date; PROVIDED, HOWEVER, that interest payable on the
Maturity Date of this Note or any applicable Redemption Date or Repayment Date
that is not an Interest Payment Date shall be payable to the Person to whom
principal shall be payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the registered 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
shall be given to the Holder of this Note not less than 10 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
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
If an Initial Redemption Date or periods within which Redemption Dates may
occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption, in whole or in part, at the option of the
Company prior to the Maturity Date upon not less than 30 nor more than 60 days'
notice.
Payment of any interest due on any Note of this series (that is not a
Global Security) will be made by mailing a check to the Holder at the address of
such Holder appearing on the Security Register for the Notes on the applicable
Regular Record Date. Notwithstanding the foregoing, at the option of the
Company, all payments of interest and principal on any Note of this series (that
is not a Global Security) may be made by wire transfer of immediately available
funds to an account at a bank located within the United States as designated by
each Holder not less than 15 calendar days prior to the applicable Interest
Payment Date. A Holder of $10,000,000 or more in aggregate principal amount of
Notes of this series (that is not a Global Security) of like tenor and terms
with the same Interest Payment Date may demand payment by
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<PAGE>
wire transfer 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. In the event that payment is so made in accordance with
instructions of the Holder, such wire transfer shall be deemed to constitute
full and complete payment of such interest and principal on the Notes. Payment
of the principal of (and premium, if any) and any interest due with respect to
any Note of this series (that is not a Global Security) at Maturity will be made
in immediately available funds upon surrender of such Note at the Corporate
Trust Office of the Trustee in The City of New York accompanied by wire transfer
instructions, provided that such Note is presented to the Trustee in time for
the Trustee to make such payments in such funds in accordance with its normal
procedures.
Payment of principal of (and premium, if any) and interest due on any
Global Security will be made to the Depositary or its nominee, as the case may
be, as the sole registered owner and the sole Holder of the Global Security for
all purposes under the Indenture.
Payment of the principal of (and premium, if any) and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Note set forth
below, 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 or on
behalf of the Trustee referred to below, 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.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] INTERNATIONAL MULTIFOODS CORPORATION
By
------------------------------
Title:
Attest:
- ------------------------------
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By
------------------------------
Authorized Signatory
-4-
<PAGE>
INTERNATIONAL MULTIFOODS CORPORATION
Medium-Term Note, Series B
(Fixed Rate Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued or to be issued in one or more series
under an Indenture, dated as of January 1, 1990, as amended and supplemented by
the First Supplemental Indenture thereto, dated as of May 29, 1992 (the
Indenture, as so amended and supplemented, being herein called the "Indenture"),
between the Company and First Trust of New York, National Association (successor
to Morgan Guaranty Trust Company 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
(as defined below) and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as
Medium-Term Notes, Series B (the "Notes"). By the terms of the Indenture,
Securities, which may vary as to date, amount, Maturity Date, interest rate or
method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
Unless otherwise set forth under "Other Terms" above, the Notes of this
series are issuable only in registered form without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. The Notes of this
series may be issued, in whole or in part, in the form of one or more Global
Securities bearing the legend specified in the Indenture regarding certain
restrictions on registration of transfer and exchange and issued to the
Depositary or its nominee and registered in the name of the Depositary or such
nominee. As provided in the Indenture, and subject to certain limitations
(including, if this Note is a Global Security, certain additional limitations)
therein set forth, Notes of this series in definitive registered form 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.
Payments of interest hereon with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date. Interest
hereon shall be computed on the basis of a 360-day year of twelve 30-day months.
In the event that any Interest Payment Date or the Maturity Date or any
applicable Redemption Date or Repayment Date is not a Business Day, the interest
and, with respect to the Maturity Date or any applicable Redemption Date or
Repayment Date, principal (and premium, if any) otherwise payable on such date
will be made on the next Business Day as if it were made on the date such
payment
-5-
<PAGE>
was due, and no interest will accrue on the amount so payable for the period
from and after such Interest Payment Date or the Maturity Date or any applicable
Redemption Date or Repayment Date.
If an Initial Redemption Date or periods within which Redemption Dates may
occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption prior to the Maturity Date, on any Redemption
Date so specified or occurring within any period so specified, as a whole or in
part, at the election of the Company, at the applicable Redemption Price so
specified, together in the case of any such redemption with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to such Redemption Date will be payable in the
case of any such redemption to the Holder of this Note (or one or more
predecessor Notes) at the close of business on the relevant Regular Record Dates
referred to above, all as provided in the Indenture. Notice of redemption will
be given by mail to the Holder of this Note not less than 30 nor more than 60
days prior to the date fixed for redemption, all as provided in the Indenture.
In the event of redemption of this Note in part only, a new Note of this series
and of like tenor of an authorized denomination for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
Unless otherwise specified under "Other Terms" above, this Note will not be
subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (expressed as percentages of the principal amount
of this Note) are set forth above under "Repayment Terms", this Note is subject
to repayment at the option of the Holder hereof prior to the Maturity Date upon
such terms as are set forth above under "Repayment Terms". In the event of
repayment of this Note in part only, a new Note of this series and of like tenor
of an authorized denomination for the portion hereof not repaid will be issued
in the name of the Holder hereof upon the cancellation hereof.
If an 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.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
-6-
<PAGE>
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note or Notes issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
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 rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations (including,
if this Note is a Global Security, the limitations set forth on the first page
hereof) therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the Corporate Trust Office of the Trustee in the City of New York, or such other
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by, the Holder hereof or such
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 aggregate principal amount, will be issued to the designated transferee or
transferees.
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.
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 neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms". Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
-7-
<PAGE>
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
-8-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription above, 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 Gift to Minors Act
----------------------------------------
(State)
Additional abbreviations may be used though not in the above list.
-9-
<PAGE>
ASSIGNMENT
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 Typewrite Name and Address
Including Postal Zip Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
------------------------------------------------------------------
- -------------------------------------------------------------------------------
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
----------------------------
Signature Guaranteed
- ----------------------------------- ---------------------------------------
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of the within
Note in every particular,
without alteration or
enlargement or any change whatever.
-10-
<PAGE>
OPTION TO ELECT REPAYMENT
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY --- In order for a Note
that is repayable at the option of the Holder to be repaid prior to Stated
Maturity, the option for repayment must be exercised by the applicable
participant that has an account with the Depositary, on behalf of the beneficial
owner of the Note, by delivering a written notice substantially similar to this
form to the Trustee at its Corporate Trust Office (or such other address of
which the Company shall from time to time notify the Holders), not more than 60
nor less than 30 days prior to the Repayment Date. Notices of election from
participants on behalf of beneficial owners of the Note to exercise their option
to have such Note repaid must be received by the Trustee by 5:00 P.M., New York
City time, on the last day for giving such notice. All notices shall be
executed by a duly authorized officer of such participant (with signatures
guaranteed) and shall be irrevocable. In addition, beneficial owners of the
Note shall effect delivery at the time such notice of election is given to the
Depositary by causing the applicable participant to transfer such beneficial
owner's interest in the Note, on the Depositary's records, to the Trustee.]
[INSERT IF THE SECURITY IS NOT A GLOBAL SECURITY --- In order for a Note
that 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 60 days
prior to the Repayment Date (i) the Note with the information required below
duly completed or (ii) a telegram, telex, 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 setting forth the name of the Holder of the
Note, the principal amount of the Note, the principal amount of the Note to be
repaid, the certificate number or a description of the tenor and terms of the
Note, a statement that the option to elect repayment is being exercised thereby
and a guarantee that the Note to be repaid with the information required below
duly completed will be received by the Paying Agent not later than five Business
Days after the date of such telegram, telex, facsimile transmission or letter
and such Note and information duly completed are received by the Paying Agent by
such Business Day. Unless otherwise specified above, exercise of the repayment
option by the Holder of a Note shall be irrevocable. The repayment option may
be exercised by the Holder of a Note for less than the entire principal amount
of the Note, provided that the principal amount of the Note remaining
outstanding after such repayment is of an authorized denomination.]
-11-
<PAGE>
The undersigned hereby irrevocably requests and instructs the Company to repay
the within Note (or portion thereof specified below) pursuant to its terms at
the applicable Repayment Price, together with interest to the Repayment Date, to
the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of the Undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof which the undersigned elects to have repaid:
- ------------------------------------------------------------------------------;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the undersigned
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
- ------------------------------.
Dated:
---------------------------- ---------------------------------------
---------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-12-
<PAGE>
EXHIBIT B
REGISTERED REGISTERED
INTERNATIONAL MULTIFOODS CORPORATION Principal Amount:
No. BB- Medium-Term Note, Series B $
(Floating Rate Note) CUSIP
No.
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC, AS DEPOSITARY FOR
THIS SERIES OF SECURITIES (THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]
ORIGINAL ISSUE DATE: MATURITY DATE:
INITIAL INTEREST RATE: SPREAD:
INTEREST RATE BASIS: SPREAD MULTIPLIER:
[ ] COMMERCIAL PAPER RATE REDEMPTION TERMS:
[ ] CD RATE
[ ] CMT RATE
DESIGNATED CMT TELERATE PAGE: REPAYMENT TERMS:
DESIGNATED CMT MATURITY INDEX:
[ ] FEDERAL FUNDS RATE
[ ] 11TH DISTRICT COST OF FUNDS RATE
[ ] KENNY RATE CALCULATION AGENT:
[ ] LIBOR
DESIGNATED LIBOR CURRENCY:
DESIGNATED LIBOR PAGE:
[ ] PRIME RATE
[ ] TREASURY RATE
[ ] OTHER (SEE "OTHER TERMS") OTHER TERMS:
INDEX MATURITY:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
INTEREST RESET DATES:
INTEREST PAYMENT DATES:
<PAGE>
International Multifoods Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________________ or
registered assigns, the principal sum of _____________________________ United
States Dollars ($_________) on the Maturity Date shown above or, together with
any premium thereon, upon any applicable Redemption Date or Repayment Date shown
above, and to pay interest thereon from the Original Issue Date shown above or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, on each Interest Payment Date shown above, and on the
Maturity Date, commencing with the Interest Payment Date immediately following
the Original Issue Date, at the rate per annum determined in accordance with the
provisions below relating to the applicable Interest Rate Basis specified above,
until the principal hereof is paid or made available for payment, and (if
specified under "Other Terms" above and to the extent that the payment of such
interest shall be legally enforceable) at the rate per annum equal to the
Interest Rate shown above on any overdue principal and on any overdue
installment of interest; PROVIDED, HOWEVER, that if the Original Issue Date is
after a Regular Record Date and on or before the immediately following Interest
Payment Date, interest payments will commence on the Interest Payment Date
following the next succeeding Regular Record Date. 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 for such interest, which shall, unless otherwise specified
under "Other Terms" above, be the fifteenth calendar day (whether or not a
Business Day (as defined below)) next preceding such Interest Payment Date;
PROVIDED, HOWEVER, that interest payable on the Maturity Date of this Note or
any applicable Redemption Date or Repayment Date that is not an Interest Payment
Date shall be payable to the Person to whom principal shall be payable. Except
as otherwise provided in the Indenture, any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the registered
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 shall be given to the Holder of this
Note not less than 10 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 may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
If an Initial Redemption Date or periods within which Redemption Dates may
occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption, in whole or in part, at the option of the
Company prior to the Maturity Date upon not less than 30 nor more than 60 days'
notice.
-2-
<PAGE>
Payment of any interest due on any Note of this series (that is not a
Global Security) will be made by mailing a check to the Holder at the address of
such Holder appearing on the Security Register for the Notes on the applicable
Regular Record Date. Notwithstanding the foregoing, at the option of the
Company, all payments of interest and principal on any Note of this series (that
is not a Global Security) may be made by wire transfer of immediately available
funds to an account at a bank located within the United States as designated by
each Holder not less than 15 calendar days prior to the applicable Interest
Payment Date. A Holder of $10,000,000 or more in aggregate principal amount of
Notes of this series (that are not Global Securities) of like tenor and terms
with the same Interest Payment Date may demand payment by wire transfer 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. In the event that payment is so made in accordance with instructions of
the Holder, such wire transfer shall be deemed to constitute full and complete
payment of such interest and principal on the Notes. Payment of the principal
of (and premium, if any) and any interest due with respect to any Note of this
series (that is not a Global Security) at Maturity will be made in immediately
available funds upon surrender of such Note at the Corporate Trust Office of the
Trustee in The City of New York accompanied by wire transfer instructions,
provided that such Note is presented to the Trustee in time for the Trustee to
make such payments in such funds in accordance with its normal procedures.
Payment of principal of (and premium, if any) and interest due on any
Global Security will be made to the Depositary or its nominee, as the case may
be, as the sole registered owner and the sole Holder of the Global Security for
all purposes under the Indenture.
Payment of the principal of (and premium, if any) and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Note set forth
below, 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 or on
behalf of the Trustee referred to below, 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.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] INTERNATIONAL MULTIFOODS CORPORATION
By
---------------------------------
Title:
Attest:
- ------------------------
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By
------------------------
Authorized Signatory
-4-
<PAGE>
INTERNATIONAL MULTIFOODS CORPORATION
Medium-Term Note, Series B
(Floating Rate Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued or to be issued in one or more series
under an Indenture dated as of January 1, 1990, as amended and supplemented by
the First Supplemental Indenture thereto, dated as of May 29, 1992 (the
Indenture, as so amended and supplemented, being herein called the "Indenture"),
between the Company and First Trust of New York, National Association (successor
to Morgan Guaranty Trust Company 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
(as defined below) and the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as
Medium-Term Notes, Series B (the "Notes"). By the terms of the Indenture,
Securities, which may vary as to date, amount, Maturity Date, interest rate or
method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
Unless otherwise set forth under "Other Terms" above, the Notes of this
series are issuable only in registered form without coupons, in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. The Notes of this
series may be issued, in whole or in part, in the form of one or more Global
Securities bearing the legend specified in the Indenture regarding certain
restrictions on registration of transfer and exchange and issued to the
Depositary or its nominee and registered in the name of the Depositary or such
nominee. As provided in the Indenture, and subject to certain limitations
(including, if this Note is a Global Security, certain additional limitations)
therein set forth, Notes of this series are in definitive registered form
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.
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 in the case of
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 such 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 additional interest shall be payable as a
result of such delayed payment.
-5-
<PAGE>
REDEMPTION AND REPAYMENT PROVISIONS
If an Initial Redemption Date or periods within which Redemption Dates may
occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption prior to the Maturity Date, on any Redemption
Date so specified or occurring within any period so specified, as a whole or in
part, at the election of the Company, at the applicable Redemption Price so
specified, together in the case of any such redemption with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to such Redemption Date will be payable in the
case of any such redemption to the Holder of this Note (or one or more
predecessor Notes) at the close of business on the relevant Regular Record Dates
referred to above, all as provided in the Indenture. Notice of redemption will
be given by mail to the Holder of this Note not less than 30 nor more than 60
days prior to the date fixed for redemption, all as provided in the Indenture.
In the event of redemption of this Note in part only, a new Note of this series
and of like tenor of an authorized denomination for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
Unless otherwise specified under "Other Terms" above, this Note will not be
subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (expressed as percentages of the principal amount
of this Note) are set forth above under "Repayment Terms", this Note is subject
to repayment at the option of the Holder hereof prior to the Maturity Date upon
such terms as are set forth above under "Repayment Terms". In the event of
repayment of this Note in part only, a new Note of this series and of like tenor
of an authorized denomination for the portion hereof not repaid will be issued
in the name of the Holder hereof upon the cancellation hereof.
INTEREST PROVISIONS
Commencing with the Interest Reset Date specified above, first following
the Original Issue Date specified above, the rate at which this Note bears
interest will be reset daily, weekly, monthly, 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"). The Interest Reset Date
will be, in the case of Notes which reset daily, each Business Day; in the case
of Notes (other than Treasury Rate Notes (as defined below)) which reset weekly,
the Wednesday of each week; in the case of Treasury Rate Notes which reset
weekly, the Tuesday of each week, except as provided below; in the case of Notes
which reset monthly, the third Wednesday of each month (with the exception of
monthly reset 11th District Cost of Funds Rate Notes (as defined below), which
will reset on the first calendar day of the month); in
-6-
<PAGE>
the case of Notes which reset quarterly, the third Wednesday of each March,
June, September and December; in the case of Notes which reset semiannually, the
third Wednesday of the two months of each year specified above; and in the case
of Notes which reset annually, the third Wednesday of one month of each year
specified above; PROVIDED, HOWEVER, that the interest rate in effect from the
Original Issue Date to the first Interest Reset Date with respect to this Note
will be the Initial Interest Rate as set forth above. If any Interest Reset
Date for any Note would otherwise be a day that is not a Business Day, the
Interest Reset Date for such Note shall be postponed to the next day that is a
Business Day, except that in the case of a LIBOR Note (as defined below), if
such Business Day is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding 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 Maturity, as the
case may be. Subject to applicable provisions of law and except as specified
herein, on each Interest Reset Date the rate of interest on this Note shall be
the rate determined by the Calculation Agent specified above in accordance with
the provisions of the applicable heading below.
Unless otherwise specified above under "Other Terms", "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 and, with respect to LIBOR Notes, is also
a London Business Day (as defined below). "London Business Day" means any day
(i) the Designated LIBOR Currency (as defined below) is other than the ECU, on
which dealings in deposits in such Designated LIBOR Currency are transacted in
the London interbank market or (ii) if the Designated LIBOR Currency is the ECU,
that is not designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payments on ECUs shall not be made.
DETERMINATION OF COMMERCIAL PAPER RATE
If the Interest Rate Basis specified above is the Commercial Paper Rate,
this Note is a "Commercial Paper Rate Note" and the interest rate with respect
to this Note shall be the Commercial Paper Rate (as defined below) plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable Commercial Paper Interest Determination
Date (as defined below).
Unless otherwise specified above under "Other Terms", "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 specified above 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
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("H.15(519)") under the heading "Commercial Paper." In the event that such rate
is not published prior to 9:00 A.M., New York City time, on the Calculation Date
(as defined below) 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 specified above 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 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 above 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:
Money Market Yield = D X 360
-------------------------------
360 - (D X M) X 100
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 above is the CD Rate, this Note is a
"CD Rate Note" and the interest rate with respect to this Note shall be the CD
Rate (as defined below) plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, as specified above, as determined on the applicable
CD Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "CD Rate" means, with
respect to any CD Interest Determination Date, the rate on such date for
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negotiable certificates of deposit having the Index Maturity specified above 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 specified above 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 designated above 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 above is the CMT Rate, this Note is a
"CMT Rate Note" and the interest rate with respect to this Note shall be the CMT
Rate (as defined below) plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, as specified above, as determined on the applicable
CMT Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "CMT Rate" means,
with respect to any CMT Interest Determination Date, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such 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 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
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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 third preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the
quotes for the Treasury Note with the shorter remaining term to maturity will
be used.
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"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified above (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 purpose of displaying Treasury Constant
Maturities as published in H.15(519). If no such page is specified above, 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 above with respect to which the CMT Rate will be calculated.
If no such maturity is specified above, the Designated CMT Maturity Index shall
be two years.
DETERMINATION OF FEDERAL FUNDS RATE
If the Interest Rate Basis specified above is the Federal Funds Rate, this
Note is a "Federal Funds Rate Note" and the interest rate with respect to this
Note shall be the Federal Funds Rate (as defined below) plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable Federal Funds Interest Determination Date
(as defined below).
Unless otherwise specified above under "Other Terms", "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 with
respect to such Federal Funds Interest Determination Date 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 (each as 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.
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DETERMINATION OF 11TH DISTRICT COST OF FUNDS RATE
If the Interest Rate Basis specified above is the 11th District Cost of
Funds Rate, this Note is an "11th District Cost of Funds Rate Note" and the
interest rate with respect to this Note shall be the 11th District Cost of Funds
Rate (as defined below) plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, as specified above, as determined on the applicable
11th District Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "11th District Cost
of Funds Rate" means, with respect to any 11th District Interest Determination
Date, the rate equal to the monthly weighted average cost of funds for the
calendar month preceding such 11th District Cost of Funds Rate Interest
Determination Date as set forth under the caption "11th District" on Telerate
Page 7058 as of 11:00 A.M., San Francisco time, on such 11th District Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on any
related 11th District Interest Determination Date, the 11th District Cost of
Funds Rate for such 11th District Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month preceding the date of such announcement. If the FHLB of San Francisco
fails to announce such rate for the calendar month next preceding such 11th
District Interest Determination Date, then the 11th District Cost of Funds Rate
for such 11th District Interest Determination Date will be the 11th District
Cost of Funds Rate then in effect on such 11th District Interest Determination
Date.
DETERMINATION OF KENNY RATE
If the Interest Rate Basis specified above is the Kenny Rate, this Note is
a "Kenny Rate Note" and the interest rate with respect to this Note shall be the
Kenny Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, as specified above, as determined on the applicable Kenny
Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "Kenny Rate" means,
with respect to any Kenny Rate Interest Determination Date, the high grade
weekly index (the "Weekly Index") on such date made available by Kenny
Information Systems ("Kenny") to the Calculation Agent. The Weekly Index is,
and shall be, based upon 30 day yield evaluations at par of bonds, the interest
on which is exempt from Federal income taxation under the Internal Revenue Code
of 1986, as amended, of not less than five high grade component issuers selected
by Kenny which shall include, without limitation, issuers of general obligation
bonds. The specific issuers included among the component issuers may be changed
from time to time by Kenny in its discretion. The bonds on which the Weekly
Index is based
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shall not include any bonds on which the interest is subject to a minimum tax or
similar tax under the Internal Revenue Code of 1986, as amended, unless all tax-
exempt bonds are subject to such tax. In the event Kenny ceases to make
available such Weekly Index, a successor indexing agent will be selected by the
Calculation Agent, such index to reflect the prevailing rate for bonds rated in
the highest short-term rating category by Moody's Investors Service, Inc. and
Standard & Poor's Corporation in respect of issuers most closely resembling the
high grade component issuers selected by Kenny for its Weekly Index, the
interest on which is (i) variable on a weekly basis, (ii) exempt from Federal
income taxation under the Internal Revenue Code of 1986, as amended, and (iii)
not subject to a minimum tax or similar tax under the Internal Revenue Code of
1986, as amended, unless all tax-exempt bonds are subject to such tax. If such
successor indexing agent is not available, the rate for any Kenny Rate Interest
Determination Date shall be 67% of the rate determined if the Treasury Rate
option had been originally selected.
DETERMINATION OF LIBOR
If the Interest Rate Basis specified above is the LIBOR Rate, this Note is
a "LIBOR Rate Note" and the interest rate with respect to this Note shall be the
LIBOR Rate (as defined below) plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any, as specified above, as determined on the
applicable LIBOR Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "LIBOR" means, with
respect to any LIBOR Interest Determination Date, the rate determined 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 above, 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 having the Index Maturity designated above, commencing on the
second London Business Day immediately following the LIBOR Interest
Determination Date, which appear on the Designated LIBOR Page specified
above 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 above, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity designated above, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page specified
above 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
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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 case 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 for the period of the Index Maturity designated above, 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 Principal Financial Center (as defined
below), on such LIBOR Interest Determination Date by three major banks in
such Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading banks, having the Index
Maturity designated above in a principal amount that is representative for
a single transaction in such Designated LIBOR Currency in such market at
such time; PROVIDED, HOWEVER, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date will be LIBOR in
effect on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means, as with respect to any LIBOR Note, the
currency (including a composite currency), if any, designated above as the
Designated LIBOR Currency. If no such currency is designated above, the
Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (i) the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank rates of
major banks for the applicable Designated LIBOR Currency (if "LIBOR Reuters" is
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designated above), or (ii) the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank rates of major banks for the
applicable designated LIBOR Currency (if "LIBOR Telerate" is designated above).
If neither LIBOR Reuters nor LIBOR Telerate is specified above, LIBOR for the
applicable Designated LIBOR Currency will be determined as if LIBOR Telerate
(and, if the U.S. dollar is the Designated LIBOR Currency, page 3750) had been
chosen.
"Principal Financial Center" means, with respect to any LIBOR Note, unless
otherwise specified above, the capital city of the country that issues as its
legal tender the Designated LIBOR Currency of such Note, except that with
respect to U.S. dollars and ECUs, the Principal Financial Center shall be The
City of New York and Brussels, respectively.
DETERMINATION OF PRIME RATE
If the Interest Rate Basis specified above is the Prime Rate, this Note is
a "Prime Rate Note" and the interest rate with respect to this Note shall be the
Prime Rate (as defined below) plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any, as specified above, as determined on the
applicable Prime Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "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 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 NYMF 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 NYMF Page for the Prime
Interest Determination Date, the Prime Rate with respect to such Prime Interest
Determination Date shall be the arithmetic mean of the prime rates quoted on the
basis of the actual number of days in the year divided by 360 as of the close of
business on such Prime Interest Determination Date by at least two of the three
major money center banks in The City of New York selected by the Calculation
Agent. 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
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prior to such Prime Interest Determination Date. "Reuters Screen NYMF Page"
means the display designated as page "NYMF" on the Reuters Monitor Money Rate
Service (or such other page as may replace the NYMF page on the service for the
purpose of displaying the prime rate or base lending rate of major banks).
DETERMINATION OF TREASURY RATE
If the Interest Rate Basis specified above is the Treasury Rate, this Note
is a "Treasury Rate Note" and the interest rate with respect to this Note shall
be the Treasury Rate (as defined below) plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified above, as determined
on the applicable Treasury Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "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 above 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 United
States 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,
or if no such auction is held in a particular week, then the Treasury Rate with
respect to 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 above; 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.
GENERAL
Notwithstanding the determination of the interest rate as provided above,
the interest rate on this Note shall not be greater than the Maximum Interest
Rate, if any, or less than the Minimum Interest Rate, if any, specified above.
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.
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On or before the Calculation Date, the Calculation Agent will determine the
interest rate in accordance with the foregoing. Upon the request of the Holder
of this Note, the Calculation Agent will provide the interest rate then in
effect, and, if determined, the interest rate which will become effective on the
next Interest Reset Date with respect to this Note. The Calculation Agent's
determination of any interest rate will be final and binding in the absence of
manifest error.
Unless otherwise specified above under "Other Terms," interest on this Note
will accrue from and including the Original Issue Date 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 Maturity, as the case may be. Accrued interest from
the Original Issue Date or from the last date to which interest has been paid
will be calculated by multiplying the face amount of the Note by an accrued
interest factor. Such accrued interest factor is computed by adding the
interest factors calculated for each day from the Original Issue Date, 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 (unless
otherwise specified above under "Other Terms") 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, 11th District Cost of Funds
Rate Notes, LIBOR Notes and Prime Rate Notes, or by 365 days in the case of
Kenny Rate Notes or by the actual number of days in the year, in the case of CMT
Rate Notes or Treasury Rate Notes.
Unless otherwise specified above under "Other Terms", the "Interest
Determination Date" pertaining to an Interest Reset Date for (i) a Commercial
Paper Rate Note (the "Commercial Paper Interest Determination Date"), (ii) a CD
Rate Note (the "CD Interest Determination Date"), (iii) a Federal Funds Rate
Note (the "Federal Funds Interest Determination Date"), (iv) a CMT Rate Note
(the "CMT Interest Determination Date"), (v) a Kenny Rate Note (the "Kenny Rate
Interest Determination Date"), or (vi) a Prime Rate Note (the "Prime Interest
Determination Date") will be the second Business Day prior to such Interest
Reset Date. Unless otherwise specified above under "Other Terms", the Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note (the "11th District Interest Determination Date") will
be the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below). Unless otherwise specified
above under "Other Terms", the Interest Determination Date pertaining to an
Interest Reset Date for a LIBOR Note (the "LIBOR Interest Determination Date")
will be the second London Business Day immediately preceding each Interest Reset
Date. Unless otherwise specified above under "Other Terms", 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
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Treasury bills would normally be auctioned. If, as a result of a legal holiday,
an auction is 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 above under "Other Terms", 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.
All percentages resulting from any calculation with respect to 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 rounded upward
(e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and
all dollar amounts used in or resulting from such calculation on any Notes will
be rounded to the nearest cent with one half cent being rounded upward.
MISCELLANEOUS PROVISIONS
If an 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.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note or Notes issued upon the registration of transfer hereof or
in exchange hereof or in
-18-
<PAGE>
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
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 rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations (including,
if this Note is a Global Security, the limitations set forth on the first page
hereof) therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the Corporate Trust Office of the Trustee in the City of New York, or such other
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by the Holder hereof or such
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 aggregate principal amount, will be issued to the designated transferee or
transferees.
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.
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 neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms". Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned to them in the Indenture.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription above, 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
UNF GIFT MIN ACT--_______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
----------------------------------------------------------------------
(State)
Additional abbreviations may be used though not in the above list.
-----------------------------
-20-
<PAGE>
ASSIGNMENT
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 Typewrite Name and Address
Including Postal Zip Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and
appoints
----------------------------------------------------------------------
- -------------------------------------------------------------------------------
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
----------------------------------------------
Signature Guaranteed
- ------------------------ ------------------------------------
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of the within
Note in every particular,
without alteration or
enlargement or any change whatever.
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<PAGE>
OPTION TO ELECT REPAYMENT
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY --- In order for a Note
that is repayable at the option of the Holder to be repaid prior to Stated
Maturity, the option for repayment must be exercised by the applicable
participant that has an account with the Depositary, on behalf of the beneficial
owner of the Note, by delivering a written notice substantially similar to this
form to the Trustee at its Corporate Trust Office (or such other address of
which the Company shall from time to time notify the Holders), not more than 60
nor less than 30 days prior to the Repayment Date. Notices of election from
participants on behalf of beneficial owners of the Note to exercise their option
to have such Note repaid must be received by the Trustee by 5:00 P.M., New York
City time, on the last day for giving such notice. All notices shall be
executed by a duly authorized officer of such participant (with signatures
guaranteed) and shall be irrevocable. In addition, beneficial owners of the
Note shall effect delivery at the time such notice of election is given to the
Depositary by causing the applicable participant to transfer such beneficial
owner's interest in the Note, on the Depositary's records, to the Trustee.]
[INSERT IF THE SECURITY IS NOT A GLOBAL SECURITY --- In order for a Note
that 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 60 days
prior to the Repayment Date (i) the Note with the information required below
duly completed or (ii) a telegram, telex, 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 setting forth the name of the Holder of the
Note, the principal amount of the Note, the principal amount of the Note to be
repaid, the certificate number or a description of the tenor and terms of the
Note, a statement that the option to elect repayment is being exercised thereby
and a guarantee that the Note to be repaid with the information required below
duly completed will be received by the Paying Agent not later than five Business
Days after the date of such telegram, telex, facsimile transmission or letter
and such Note and information duly completed are received by the Paying Agent by
such Business Day. Unless otherwise specified above, exercise of the repayment
option by the Holder of a Note shall be irrevocable. The repayment option may
be exercised by the Holder of a Note for less than the entire principal amount
of the Note, provided that the principal amount of the Note remaining
outstanding after such repayment is of an authorized denomination.]
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<PAGE>
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of the Undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the undersigned elects to have repaid:
- ------------------------------------------------------------------------------;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the undersigned
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid): .
-----------------------------
Dated:
------------------- ---------------------------
---------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-23-
<PAGE>
EXHIBIT C
INTERNATIONAL MULTIFOODS CORPORATION
MEDIUM-TERM NOTES, SERIES B
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated February 1, 1996 (the "Distribution Agreement"),
between International Multifoods Corporation (the "Company") and Lehman
Brothers, Lehman Brothers Inc., BA Securities, Inc., BT Securities Corporation,
First Chicago Capital Markets, Inc. and J.P. Morgan Securities Inc. (together,
the "Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture as amended or supplemented. To the extent any
procedure set forth below conflicts with the provisions of the Securities, the
Indenture or the Distribution Agreement, the relevant provisions of the
Securities, the Indenture or the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Purchase Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Purchase Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons from the
Company with whom such Agent is to communicate regarding offers to purchase
Securities and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global certificate (a "Global Security") delivered to
the Trustee, as custodian for The Depository Trust Company (the "Depositary")
and recorded in the book-entry system maintained by the Depositary (a
"Book-Entry Security") or a certificate (a "Certificated Security") delivered to
a person designated by an Agent as set forth in the applicable Pricing
Supplement. An owner of a Book-Entry Security will not be entitled to receive a
certificate representing such a Security, except as provided in the Indenture or
the Prospectus as amended or supplemented.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
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 the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of January 31, 1991 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
POSTING RATES BY THE COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY THE COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO THE COMPANY BY AGENT AND SETTLEMENT
PROCEDURES:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate, initial
interest payment date, Interest Payment Dates and Regular Record
Dates;
(3) Trade Date;
(4) Settlement Date;
II-2
<PAGE>
(5) Stated Maturity;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable exchange rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of
Global Securities denominated in U.S. dollars only) and the Exchange
Rate Agent;
(7) Selected Currencies, the Base Exchange Rate and the Determination
Agent, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Percentage (% of par), and
(iii) Annual Redemption Percentage Reduction;
(12) If a Floating Rate Book-Entry Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
II-3
<PAGE>
(13) Name, address and taxpayer identification number of the registered
owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a
list of CUSIP numbers previously obtained by the Company representing such
Book-Entry Security and then the Company will advise the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number of
days by which such date succeeds the record date for the Depositary's
purposes (or, in the case of Floating Rate Securities which reset
daily or weekly, the date five calendar days immediately preceding
the applicable Interest Payment Date and, in the case of all other
Book-Entry Securities, the Regular Record Date, as defined in the
Security) and, if calculable at that time, the amount of interest
payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal
II-4
<PAGE>
to the price of such Book-Entry Security less such Agent's commission. The
entry of such a deliver order shall constitute a representation and warranty by
the Trustee to the Depositary that (a) the Global Security representing such
Book-Entry Security has been issued and authenticated and (b) the Trustee is
holding such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to
the account of the Company maintained at First Bank National Association, or
such other account as the Company may have previously specified to the Trustee,
in funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as of
that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the Participants for whom the Depositary has credited Book-Entry
Securities.
II-5
<PAGE>
PREPARATION OF PRICING SUPPLEMENT:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies (or one copy if sent by facsimile) of such
Pricing Supplement, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date (as defined below), or if the Company and
the purchaser agree to settlement on the Business Day following the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will file, or arrange to have filed, the Pricing Supplement with the
Commission not later than the close of business of the Commission on the fifth
Business Day following the date on which such Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
DATE OF SETTLEMENT:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another Business Day which shall be no earlier
than the next Business Day after the Trade Date.
SETTLEMENT PROCEDURE TIMETABLE:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
II-6
<PAGE>
SETTLEMENT
PROCEDURE TIME
- --------- ----
A 11:00 a.m. on the Business Day following the Trade Date
B 1:00 p.m. on the Business Day following the Trade Date
C 2:00 p.m. on the second Business Day immediately preceding the
Settlement Date
D 3:00 p.m. on the Business Day immediately preceding Settlement
Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If a sale is to be settled one Business Day after the Trade Date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but no later than 11:00 a.m., 1:00 p.m. and 2:00 p.m. on the Trade Date. If the
initial interest rate for a Floating Rate Book-Entry Security 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 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date. Settlement Procedure "H" is subject to extension
in accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately preceding
the scheduled Settlement Date.
FAILURE TO SETTLE:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security 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 Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but
II-7
<PAGE>
not all, of the Book-Entry Securities represented by a Global Security, the
Trustee will exchange such Global Security for two Global Securities, one of
which shall represent such Book-Entry Security or Securities and shall be
canceled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities 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 Security is not timely paid to the
Participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such Participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such Participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) 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 solely as a result of a default by the
applicable Agent to perform its obligations in all material respects hereunder
or under the Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary 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 Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
POSTING RATES BY COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
II-8
<PAGE>
Each Agent also may make offers to the Company to purchase Certificated
Securities as a Purchasing Agent. The Company will have the sole right to
accept offers to purchase Certificated Securities and may reject any such offer
in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO COMPANY BY AGENT:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate, initial
interest payment date, Interest Payment Dates and Regular Record
Dates;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) Specified Currency and, if the Specified Currency is other than U.S.
dollars, the applicable exchange rate for such Specified Currency and
the Exchange Rate Agent;
(7) Selected Currencies, the Base Exchange Rate and the Determination
Agent, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following as are
applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Percentage (% of par), and
(iii) Annual Redemption Percentage Reduction;
(12) If a Floating Rate Certificated Security, such of the following as
are applicable:
II-9
<PAGE>
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the registered
owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Certificated Security; and
(16) Selling Agent or Purchasing Agent.
PREPARATION OF PRICING SUPPLEMENT BY COMPANY:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies (or one copy if sent by facsimile) of
such Pricing Supplement, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will file, or arrange to have filed,
the Pricing Supplement with the Commission not later than the close of business
of the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing
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Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
DATE OF SETTLEMENT:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such offer or (b) with respect to
an offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
INSTRUCTION FROM COMPANY TO TRUSTEE FOR PREPARATION OF CERTIFICATED SECURITIES:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent (as the case may be), but no later than 3:00 p.m. on the Business Day
immediately preceding the Settlement Date, the Company will communicate such
Sale Information to the Trustee by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 12 noon, New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 9:00 a.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
PREPARATION AND DELIVERY OF CERTIFICATED SECURITIES BY TRUSTEE AND RECEIPT OF
PAYMENT THEREFOR:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction at or
prior to 12 noon, New York City time, on the Settlement Date.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 12 noon, New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. At or prior to 2:15 p.m., New York
City time, on the Settlement Date the Selling Agent will deliver payment for
such Certificated Securities in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Securities less the Selling
Agent's commission; provided that the Selling Agent reserves the right to
withhold payment for which it has not received funds from the purchaser. The
Company shall not use any proceeds advanced by a Selling Agent to acquire
securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
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FAILURE OF PURCHASER TO PAY SELLING AGENT:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount of immediately available
funds equal to the amount previously paid to the Company in respect of such
Certificated Security. Such returns will be made on the Settlement Date, if
possible, and in any event not later than 12 noon, New York City time, on the
Business Day following the Settlement Date. The Company will reimburse the
Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
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EXHIBIT D
INTERNATIONAL MULTIFOODS CORPORATION
MEDIUM-TERM NOTES, SERIES B
AUTHENTICATION CERTIFICATE SUPPLEMENTAL TO THE OFFICERS' CERTIFICATE AND AUTHENTICATION ORDER DATED
FEBRUARY 1, 1996
<S> <C>
Form of Note: Denominations: $___________________________________________
/ / Book-Entry
/ / Certificated Interest Rate/Initial Interest Rate:________________________
Name and Address of Registered Owner:
Interest Payment Dates:_____________________________________
Taxpayer Identification Number of First Interest Payment Date:________________________________
Registered Owner:___________________________________
Regular Record Dates:_______________________________________
Principal Amount: U.S. $___________________________________
Interest Determination Dates:_______________________________
Original Issue Date:________________________________________
Interest Reset Dates:_______________________________________
Maturity Date:______________________________________________
Calculation Dates:__________________________________________
Interest Rate Basis:
Index Maturity:_____________________________________________
/ / Fixed Rate Note
/ / Commercial Paper Rate Note Spread:_____________________________________________________
/ / CD Rate Note
/ / CMT Rate Note Spread Multiplier:__________________________________________
/ / Designated CMT Telerate Page:_______________________
/ / Designated CMT Maturity Index:______________________ Maximum Interest Rate:______________________________________
/ / Federal Funds Rate Note
/ / 11th District Cost of Funds Rate Note Minimum Interest Rate:______________________________________
/ / Kenny Rate Note
/ / LIBOR Note For Original Issue Discount Notes:
/ / Designated LIBOR Currency:__________________________
/ / Designated LIBOR Page:______________________________ Original issue discount:___________________________%
/ / Prime Rate Note
/ / Treasury Rate Note Yield to maturity:_________________________________%
/ / Other Base Rate (as described below)
/ / Zero Coupon Note (as described below) Calculation Agent:__________________________________________
/ / Currency Indexed Note (as described below)
/ / Commodity Indexed Note (as described below) Determination Agent:________________________________________
/ / Amortizing Note (as described below)
Currency Determination Agent:_______________________________
Issue Price (Dollar Amount and Percentage of Principal
Amount): $__________/__________% Aggregate initial offering price of Debt Securities
issued under Registration Statement No. 33-65221
Agent's Commission: $______________________________________ through date hereof (including this Note): $_______
Net Proceeds to the Company: $_____________________________ Aggregate initial offering price of Notes issued
through date hereof (including this Note): $_______
Trade Date:_________________________________________________
CUSIP Number:_______________________________________________
Settlement Date:____________________________________________
Redemption Terms:
Repayment Terms:
Other Terms: INTERNATIONAL MULTIFOODS CORPORATION
By_________________________________________________________*
Dated:____________________________________, 199__ By_________________________________________________________*
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* To be signed by (1) the Chairman of the Board, the President or a Vice President and (2) the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary.
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